30198/04;30200/04;3484/05;36298/07

THIRD SECTION             CASE OF ŞTEFAN ANGELESCU AND OTHERS v. ROMANIA   (Applications nos. 30198/04, 30200/04, 3484/05 and 36298/07)               JUDGMENT   This version was rectified on 10 January 2012 under Rule 81 of the Rules of Court   STRASBOURG   28 June 2011   FINAL   10/01/2012   This judgment is final but it may be subject to editorial revision. In the case of Ştefan Angelescu and Others v. Romania, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Ján Šikuta, President,  Ineta Ziemele,  Kristina Pardalos, judges, and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 31 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in four applications (nos. 30198/04, 30200/04, 3484/05 and 36298/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Romanian nationals. The details of the applicants including the introduction date of their applications and the date of their communication to the Government are indicated in the table enclosed as an annex to this judgment. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 2.  In accordance with Protocol No. 14, after informing the respondent Government, the applications were assigned to a Committee of three Judges. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 3.  The applications concern the non-enforcement of final judgments rendered in disputes between the applicants and the State authorities in charge with the calculation and payment of retirement benefits. 4.  By final judgments delivered by the domestic courts between 19 March 2002 and 3 March 2005, the applicants’ civil actions were admitted and the relevant pension authorities were obliged to recalculate the applicants’ pensions so as to include additional benefits (all applications) and to issue new retirement decisions in this respect (all applications except application no. 36298/07 where the recalculation could have been implemented without necessarily issuing a new decision). In spite of the applicants’ undertakings to have them enforced, such as instituting compulsory enforcement proceedings and writing numerous petitions to the relevant authorities, all judgments remained not enforced or were enforced with delay (application no. 3484/05). The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the delays in the enforcement are set out in the appended table. II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN DOCUMENTS A.  Relevant domestic law and practice 5.  The relevant domestic law concerning the execution of final judgments, namely excerpts of the Civil Procedure Code and Law no.188/2000 on the powers and functions of bailiffs, is summed up in the Court’s judgment in the case of Topciov v. Romania ((dec.), no. 17369/02, 15 June 2006). B.  Parliamentary Assembly of the Council of Europe Resolution 1787 (2011) entitled: Implementation of the judgments of the European Court of Human Rights 6.  On 26 January 2011 the Parliamentary Assembly of the Council of Europe adopted this Resolution by which it notes with grave concern the continuing existence, in some of the member states, of major systemic deficiencies which cause large numbers of repetitive findings of violations of the Convention. In this context the Assembly urged Romania to tackle with priority the problem of non-enforcement of final court decisions. THE LAW I.  JOINDER OF THE APPLICATIONS 7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them in a single judgment. II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 8.  The applicants complained that the non-enforcement of the final judgments in their favour had infringed their right to access to court guaranteed by Article 6 § 1 of the Convention and also their right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A.  Admissibility 9.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.  Merits 1.  The parties’ submissions 10.  The Government considered that the Romanian authorities had taken the necessary steps to enforce the final judgments delivered in the applicants’ cases. 11.  In application no. 30198/04 the Government stated that since the recalculation of the applicant’s retirement benefits as ordered by the domestic courts gave rise to a lower pension than the applicant already received, the pension authority decided to continue paying the former pension without issuing a new retirement decision. The applicant contested this argument mentioning that an important increase in the pension amount was found by the expert report submitted during the domestic court proceedings finalised with the outstanding judgment. 12.  In application no. 30200/04 the Government alleged that a new retirement decision was issued to the applicant as ordered by the domestic court. However, they did not submit copies of the said document. The applicant contested this statement. 13.  In application no. 3484/05 the Government admitted the delayed enforcement of the final judgment but mentioned that it was justified by the fact that the pension authorities had a different view on the recalculation of the applicant’s pension than the one held by the domestic court. The applicant stated that this was not a reasonable justification for the delayed enforcement. 14.  In application no. 36298/07 the Government stated that the judgment of 1 September 2004 had been fully enforced by 15 July 2005 and therefore the judgment of 30 November 2006 was left without a scope. The applicant contested this statement underlining that the judgment of 30 November 2006, which was subsequent to the payment of 15 July 2005, assessed the updated circumstances invoked by the Government and held that the authorities did not fulfil entirely their obligation to enforce the judgment of 1 September 2004. 2.  The Court’s assessment 15.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6 (see Hornsby v. Greece, no.18357/91, § 40, 19 March 1997). The Court also recalls its extensive case-law concerning the non-enforcement or the delayed enforcement of final domestic judgments (see amongst many other cases Tacea v. Romania, no. 746/02, 29 September 2005; Dragne and Others v. Romania, no. 78047/01, 7 April 2005; Orha v. Romania, no. 1486/02, 12 October 2006, or Metaxas v. Greece, no. 8415/02, 27 May 2004). 16.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the one in the present applications (see Dragne and Others, cited above, or Musteaţă and Others v. Romania, nos. 67344/01, 10772/04, 14819/04, 14025/05 and 23596/06, 6 October 2009). 17.  The Court also notes that the judgments in the present cases ordered the retirement authorities to recalculate the applicants’ pensions which in all cases was held by the domestic courts to have as a result a higher amount of pension. The Court therefore considers that the respective judgments constitute “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Gavrileanu v. Romania, no. 18037/02, § 52, 22 February 2007). 18.  Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach in the present cases a different conclusion than the one adopted in the cases mentioned at paragraphs 15 and 16 above. Taking into account the complexity of the enforcement, the parties’ behaviour and the nature of the awards, the authorities have not deployed all necessary efforts to enforce fully and in due time the judgments in the applicants’ favour. 19.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 in all applications. III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 20.  The applicants also complained under Article 6 § 1 of the Convention of the unfairness of various proceedings and of the non-enforcement of various other domestic judgments (applications nos. 30198/04, 30200/04 and 3484/05). One of the applicants also complained under Article 1 of Protocol No. 1 taken together with Article 14 of the Convention of being discriminated against compared to other persons in a similar situation who received higher pensions (application no. 36298/07). 21.  However, in the light of all material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 22.  Therefore, it follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.  Damage 24.  The applicants have submitted the following claims in respect of pecuniary damage (the additional retirement benefits the applicants believe they should be awarded, as calculated by them in accordance with the domestic court orders) and non-pecuniary damage: No. Application no. Pecuniary damage Non-pecuniary damage 1. 30198/04 32,500 euros (EUR) – 2. 30200/04 41,250 EUR – 3. 3484/05 65,000 EUR 7,000 EUR 4. 36298/07 Not quantified 23,700 EUR 25.  The Government contested these claims as unfounded since no causal link between the violations alleged and the pecuniary and/or non-pecuniary damages claimed existed. 26.  With respect to the pecuniary damages, the Court considers that, in so far as the judgments marked as outstanding in the appended table remain in force, the State’s obligation to enforce them cannot be disputed. Accordingly, the applicants are still entitled to the enforcement of those judgments. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), § 12, 26 October 1984). The Court finds that this principle also applies in the present cases, having regard to the violation found. It therefore considers that the Government must secure, by appropriate means, the enforcement of the outstanding judgments which will also lead to the retroactive payment to the applicants of the differences in pension calculated according to the procedures set forth by the national legislation (see Musteaţă and Others, cited above, § 42). 27.  The Court further considers that as a result of the delayed enforcement of the judgments the applicants have sustained non-pecuniary damage. Having regard that two of the applicants have failed to claim non-pecuniary damage, the Court makes no award in this respect for applications nos. 30198/04 and 30200/04. 28.  In conclusion, ruling on an equitable basis, the Court awards the applicants the following amounts: No. Application no. Pecuniary damage Non-pecuniary damage 1. 30198/04 – – 2. 30200/04 – – 3. 3484/05 – 2,400 EUR 4. 36298/07 – 4,800 EUR[1] B.  Costs and expenses 29.  The applicants did not submit any claims for costs and expenses; hence the Court makes no award in this respect. C.  Default interest 30.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.  Decides to join the applications;   2.  Declares admissible the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 concerning the full and timely enforcement of the judgments referred to in the appended table in respect of all applications and the remainder of the applications inadmissible;   3.  Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;   4.  Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the judgments of 11 May 2004, 8 October 2003 and 1 September 2004 of the Bucharest County Court (applications nos. 30198/04, 30200/04 and 36298/07)[2];   5.  Holds (a)  that the respondent State is to pay the applicants in respect of non-pecuniary damage, within the same three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i)  EUR 2,400 (two thousand four hundred euros) plus any tax that may be chargeable to the applicant in application no. 3484/05; (ii)  EUR 4,800 (four thousand eight hundred euros)[3] plus any tax that may be chargeable to the applicant in application no. 36298/07; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   6.  Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Marialena Tsirli Ján Šikuta Deputy Registrar President ANNEX No. Application no./ date of lodging/date of communication to the Government Name of applicant Date of final judgment Order made by Court Delay in enforcement 1. 30198/04 6 August 2004/ 24 September 2009 Ştefan ANGELESCUborn on 3 September 1946, residing in Dărmăneşti. Judgment of 11 May 2004 of the Bucharest County Court upheld by the 9 December 2004 judgment of the Bucharest Court of Appeal. Revokes the retirement decision no. 187836/29 November 2000 and obliges the Bucharest Retirement Benefits House to issue a new retirement decision taking into account an additional period worked by the applicant. 75 months (outstanding)   2. 30200/04 21 September 2004/ 24 September 2009 Floarea ANGELESCUborn on 30 May 1947, residing in Bucharest, represented by Ştefan ANGELESCU. Judgment of 8 October 2003 of the Bucharest County Court upheld by the 19 March 2004 judgment of the Bucharest Court of Appeal.   Revokes the retirement decision no. 191100/13 April 2001 and obliges the Bucharest Retirement Benefits House to issue a new retirement decision taking into account an additional period worked by the applicant. 83 months (outstanding)   3. 3484/05 16 November 2004/ 8 December 2008 Vasile DRĂGOI born on 4 December 1945, residing in Constanţa. Judgment of 23 November 2004 of the Constanţa County Court. The judgment became final as it was not appealed against by the parties. Obliges the Constanta Retirement Benefits House to recalculate the applicant’s pension and to modify the retirement decision no. 238733 of 28.03.2001 so as to take into account an additional period worked by the applicant. 38 months (enforced on 12 February 2008) 4[4]. 36298/07 8 June 2007/ 14 January 2009 Gheorghe POPESCU born on 14 December 1939, residing in Bucharest. Judgment of 1 September 2004 of the Bucharest County Court upheld by the 3 March 2005 judgment of the Bucharest Court of Appeal. Obliges the Ministry of Administration and Interior to recalculate the applicant’s pension taking into account the adjustments provided by law and to pay the applicant the difference starting with the year 2002.   By a judgment of 30 November 2006, the Bucharest District Court obliged the Ministry of Administration and Interior to pay a fine to the State budget for each day of delay in the enforcement of the 1 September 2004 judgment. 72 months (outstanding)   [1] Rectified on 10 January 2012: the text was “8,000 EUR”. [2] Rectified on 10 January 2012: the text was “Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the judgments of 11 May 2004 and 8 October 2003 of the Bucharest County Court (applications nos. 30198/04 and 30200/04) and the judgments of 1 September 2004 of the Bucharest County Court and 30 November 2006 of the Bucharest District Court (application no. 36298/07)”. [3] Rectified on 10 January 2012: the text was “EUR 8,000 (eight thousand euros)”. [4] Rectified on 10 January 2012: the text was : 4. 36298/07 8 June 2007/ 14 January 2009 Gheorghe POPESCU born on 14 December 1939, residing in Bucharest. a)  Judgment of 1 September 2004 of the Bucharest County Court upheld by the 3 March 2005 judgment of the Bucharest Court of Appeal;   b)  Judgment of 30 November 2006 of the Bucharest District Court. a)  Obliges the Ministry of Administration and Interior to recalculate the applicant’s pension taking into account the adjustments provided by law and to pay the applicant the difference starting with the year 2002;   b)  Obliges the Ministry of Administration and Interior to pay the applicant penalties of 40 LEI for each day of delay in the enforcement of the 1 September 2004 judgment. a)  72 months (outstanding)         b)  51 months (outstanding)