Non-execution of a civil judgment within a reasonable time violates court access and the right to respect property
Cristea v. Republic of Moldova 13.02.2019 (no. 35098/12)
Non-execution of irrevocable court order for 11 years and fair trial. The applicant’s complaint that the final court order obliging the State to give him housing is pending for 11 years and has not been executed to date. No effective domestic remedy to complain. According to the European Court of Human Rights, a state authority can not use the lack of funds and housing to justify the non-execution of the decision. The failure of the authorities to execute fully and within a reasonable time the irrevocable decision constitutes a violation of the right of access to a court, of the right to property coupled with a breach of the right to an effective remedy. Infringement of Articles 6 and 13 of the ECHR and Article 1 of the First Additional Protocol.
Article 1 of the First Additional Protocol 1
The applicant, Valentin Cristea, is a Moldovan national who was born in 1969 and lives in Chișinău.
He was an employee of the Ministry of Home Affairs at the relevant time.
The case concerned the non-enforcement of a final judicial decision in his favour and the
ineffectiveness of the domestic remedy.
In September 2007 Mr Cristea brought an action against the Chișinău local authorities in order to
force them to provide him with housing. On 20 February 2008 the Supreme Court of Justice ordered
Chișinău municipal council to provide Mr Cristea and his family with rented accommodation.
On 2 November 2011 Mr Cristea brought an action for damages against the State on the grounds of
the non-enforcement of the final decision of the Supreme Court of Justice, claiming compensation
for pecuniary and non-pecuniary damage. The Court of Appeal found that Mr Cristea had no longer
been in the employment of the Ministry of Home Affairs since 31 March 2011 and that the State was
therefore no longer obliged to provide him with housing. Mr Cristea then brought another action for
damages against the State seeking reimbursement of the rental for the apartment in which he had
been living with his family since 1 June 2011, as well as compensation in respect of non-pecuniary
By decision of 22 July 2015 the Supreme Court of Justice allowed Mr Cristea’s appeal on points of
law. It acknowledged the non-enforcement of the final decision of 20 February 2008 and awarded
the applicant MDL 6,000 (approx. 290 euros (EUR) in respect of non-pecuniary damage and MDL
72,000 (approx. EUR 3,490) in respect of rent paid between 1 June 2011 and 31 May 2013.
Mr Cristea submits that he was paid those amounts in March 2016.
Relying on Article 6 § 1 (right to a fair trial) and Article 1 of Protocol No. 1 (protection of property),
the applicant complained of the non-enforcement of the final decision of 20 February 2008. He also
complained of the lack of an effective remedy within the meaning of Article 13 (right to an effective
remedy) to uphold his rights under the aforementioned Articles.
THE DECISION OF THE COURT
The applicant claims that the prolonged non-execution of the decision of 20 February 2008 infringed his rights under Article 6 § 1 of the Convention and Article 1 of the First Additional Protocol of the Convention. It adds that the action for damages under Law 87 was not an effective remedy within the meaning of Article 13 of the Convention in its case in order to denounce the breach suffered. The government disputes these arguments
A. Examined Period
The Court recalls that a person who has been the subject of a judgment in favor of the State must not normally initiate a separate enforcement procedure (Metaxas v. Greece, No. 8415/02, § 19, 27 May 2004). It considers that it is primarily up to the State authorities to guarantee the execution of a judgment against the State from the date on which the judgment becomes binding and enforceable.
In applying those principles, the Court observes that in this case the period of execution is deemed to commence on 20 February 2008, by the adoption of the irrevocable decision and the obligation on the authorities to provide the applicant with accommodation. It also notes that, according to the Supreme Court, this period lasted until March 4, 2015. This period lasted more than seven years.
As the enforcement procedure is still pending at home, the ECtHR notes that almost four years can not be taken into account by the national courts.
It also notes that the applicant still has the possibility, if he wishes to complain about the duration of the non-execution of the decision on the period following the examination by the Supreme Court, to bring a new appeal in accordance with law no. 87 before the national courts. However, the ECtHR reiterates that this period of almost four years is sufficient in itself to constitute a second violation of the same enforcement procedure. In that regard, it points out that, as regards the duration of the procedure and situations comparable to those of the present case, it considered that it was not required to examine the procedure as a whole, but could only examine the procedure in respect of the period considered by the national courts.
However, the Court recalls that, in the present case, it was found that, in any event, the applicant’s remedy could not provide him with sufficient protection because of the continuing failure of the authorities to carry out the initial decision. In those circumstances, it considers that it would be unfair to ask the person concerned to bring a new appeal under Law No. 87. The Court therefore considers that it can examine any national proceedings and not only that which has already been dealt with by the Supreme Court.
B. Reasonable duration of the enforcement procedure
The Court notes that, to date, the procedure for enforcing the decision ordering the authorities to provide accommodation to the applicant and his family has already lasted about 11 years. It recalls that a state authority can not use the lack of funds and housing to justify the non-execution of the decision.
The Court also recalls its position repeatedly expressed in cases of non-execution that the failure of a State to obtain full enforcement of a judgment within a reasonable time constitutes a violation of the ‘right of access to a court’ contained in Article 6 § 1 of the Convention, as well as the right to free enjoyment of its property as guaranteed by Article 1 of the First Additional Protocol.
In the light of the circumstances of the present case, the Court sees no reason to reach a different conclusion in the present case. It therefore considers that there has been a violation of Article 6 § 1 of the Convention and Article 1 of the First Additional Protocol due to the failure of the authorities to execute the final decision in favor of the applicant within a reasonable time.
For the same reasons, which led it to consider that the applicant’s remedy did not provide him with sufficient satisfaction, the ECtHR also considers that there has also been a violation of Article 13 of the ECHR in conjunction with Article 6 § 1 of the ECHR and Article 1 of the First Additional Protocol.
Just Satisfaction: € 3,400 for non-pecuniary damage and € 2,500 for expenses and court costs (echrcaselaw.com editing).