CASE OF OLARU AND OTHERS v. MOLDOVA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Just satisfaction reserved
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant, Mr Vasile Olaru, is a Moldovan national who was born in 1971 and lives in Chişinău. He is a police officer. 6. According to the Law on Police Forces, the local public administration is obliged to provide police officers with social housing (see the Domestic Law part below). 7. On an unspecified date the applicant instituted civil proceedings against the Chişinău Municipal Council and on 16 December 2004 the Centru District Court ordered the defendant to provide the applicant with accommodation. The judgment became final and enforceable; however, it has not been enforced to date. 8. The applicants, Artur, Corina and Olivia Lungu are a family of Moldovan nationals who were born in 1972, 1973 and 1994 respectively and live in Straseni. 9. Between 1997 and 2003 the first applicant was a judge. By a final judgment of 10 September 2001 of the Edineţ District Court, the Edineţ Municipal Council was ordered to provide the applicants with housing in accordance with the provisions of the Law on the Status of Judges. 10. Since the judgment was not enforced, on 11 March 2005, the applicants applied for a change in the manner of enforcement of the judgment. 11. On 9 June 2006 the Râşcani District Court ordered the Edineţ Local Council to pay the applicants the value of the apartment, namely 15,000 dollars (USD). 12. The judgment of 10 September 2001 has not been enforced to date. 13. The applicant, Ms Vera Gusan, is a Moldovan national who was born in 1955 and lives in Chişinău. 14. Together with her three children and a nephew, the applicant lived in an apartment measuring sixteen square metres, which was part of a bigger house. 15. On an unspecified date, a third party instituted proceedings against the Chişinău Municipal Council for the restitution of the house in which the applicant’s apartment was located, in accordance with Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. 16. On 22 July 1998 the Centru District Court found in favour of the third party and ordered the eviction of the applicant from her apartment. At the same time, in accordance with the provisions of the same law, the court ordered the Municipal Council to provide the applicant with alternative accommodation in accordance with the provisions of the Housing Code. According to the latter provisions, each member of the applicant’s family had the right to accommodation of at least nine square metres. 17. The judgment of 22 July 1998 has not been enforced to date. 18. The applicant, Mr Simion Racu, is a Moldovan national who was born in 1951 and lives in Chişinău. 19. The applicant is an internally displaced person. After the 1992 war he fled Transdniestria and settled in Chişinău. 20. On 21 October 1993 the Government of the Republic of Moldova adopted Decision no. 658 “on housing for persons forced to quit their houses in the eastern region of Moldova”. 21. On an unspecified date the applicant instituted proceedings against the Government and the Chişinău local authorities seeking housing. 22. By a final judgment of 7 June 2006 the Supreme Court of Justice ordered the Government and the Chişinău Municipal Council to provide the applicant with an apartment. 23. It appears that enforcement proceedings were conducted against the Chişinău Municipal Council only; however, the judgment has not been enforced to date. 24. The relevant provisions of Law no. 435 on administrative decentralisation read as follows: (1) The public local authorities enjoy, within the limits of the law, financial autonomy. They shall adopt their own budgets which shall be independent and separate from the budget of the State. (1) The public local authorities shall have their own distinct patrimony, which shall include movable and immovable goods. They shall dispose freely of it under the conditions provided for by law. (2) The patrimony of the territorial-administrative units shall be delimited and separated from that of the State, according to the law. (3) The delimitation presupposes ... exclusive decisional competence of the territorial-administrative units in respect of the administration of the patrimony...” 25. Law no. 416 on Police Forces, in so far as relevant, provides as follows: Police officers must be provided with housing by the local administrative authorities after three years of employment...” 26. The relevant part of Law no. Nr. 544 on the status of judges provides: (1) If a judge has no accommodation or if he needs an improvement to be made to his accommodation, or if he has not been provided with the supplementary fifteen square metres, the local administrative authority is obliged to provide the judge with housing within six months from the moment when the above circumstances arise ... (2) After ten years of service the accommodation provided to a judge shall be transferred into his ownership.” 27. The relevant part of Law no. 1225 on the rehabilitation of victims of political repression provides: Any citizen of the Republic of Moldova who has been the subject of political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. ... The persons who have to be evicted from the houses restored to their owners shall be provided with accommodation by the local administration authorities ... at the time of eviction, in accordance with the legislation in force.” 28. The relevant provisions of the Government’s decision no. 658 concerning housing for citizens forced to leave their houses in the eastern region of the Republic of Moldova read as follows: 1. The families of citizens forced to leave their houses in the eastern region of Moldova [Transdniestria] as a result of the military actions for the safeguarding of the independence and integrity of Moldova or as a result of their political activity directed against separatism... shall be provided with housing in accordance with the housing legislation in force. 29. The relevant parts of Law no. 118, the Prosecuting Authorities Act, read as follows: (1) If a prosecutor has no accommodation or if he needs an improvement in his accommodation, the local administrative authority shall be obliged to provide him or her with housing within one year of the date of his or her appointment ...” 30. According to section 9 (3) of the Military Social Protection Law military personnel are entitled to free housing provided by the Ministry of Defence. However, it appears from a judgment of the Centru District Court of 3 March 2004 in the case of Olisevschi v. the Chişinău Municipal Council that it was the Chişinău local authorities which were obliged to provide the plaintiff with a two-roomed apartment. 31. After the communication of the present cases to the respondent Government, the Ministry of Justice prepared a draft law amending twenty-eight acts providing for social housing privileges to twenty-three categories of persons. It appears that the proposed amendments provided for the total annulment of social housing privileges in Moldova. The draft law was sent to different branches of the Government for approval on 5 November 2008. The Court has no information as to what happened to the proposed draft law after November 2008. 32. The European Charter of Local Self-Government reads, in so far as relevant: Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers. Local authorities’ financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.” 33. On 21 and 22 June 2007 the Department for the Execution of the Judgments of the European Court of Human Rights of the Council of Europe organised a Round Table on “Non-enforcement of domestic courts decisions in member states: general measures to comply with European Court judgments”. In a document containing the conclusions of the round table, the participants expressed the following views: “As regards the legal and regulatory framework preventing non-execution: ensuring a coherent legal framework and/or coherent practices for the control and restitution of property respecting the requirements of the Convention; improving budgetary planning, notably by ensuring the compatibility between the budgetary laws and the State’s payment obligations; proper control over the use of the budgetary funds by the authorities responsible for payments; providing for specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations; setting up, where appropriate, a special fund or special reserve budgetary lines, to ensure timely compliance with judicial decisions, with a subsequent possibility of recovering from the debtor the relevant sums together with default interest; ensuring the individuals’ effective access to execution proceedings by clearly identifying the authority responsible for execution and simplifying the requirements to be fulfilled by the execution documents; As regards domestic remedies in case of non-execution: introducing, either in budgetary laws and in other laws, a general obligation to automatically compensate for delays in execution of judicial decisions through appropriate default interest at a reasonable rate (e.g. in line with the Central Bank’s marginal lending rate); ensuring effective civil liability of the State for damages arising from the non-execution of domestic judicial decisions, which are not compensated by the default interest and providing, in appropriate cases, for the possibility of recovering awards made from the state agents responsible; guaranteeing the existence of effective procedures capable of accelerating the execution process leading to full compliance with the judicial decision; providing for increased recourse to money penalties, where appropriate, the automatic increase of those money penalties as the authority concerned continues to delay execution; improving the personal responsibility of state agents in case of deliberate non-execution through efficient penalties or fines; further developing central procedures for the freezing of accounts held by debtor authorities in order to secure the honouring of payment obligations, including the possibility of freezing also the accounts of authorities subordinate to the debtor’s authority; setting up or improving procedures and regulations allowing the seizure of state assets which are manifestly not necessary for the fulfilment of the missions of the authorities concerned and, where appropriate, drawing up necessary inventories; providing the bailiffs with sufficient means and powers so as to allow them to properly ensure, where appropriate, the enforcement of judicial decisions; strengthening the individual responsibility (disciplinary, administrative and criminal where appropriate) of decision makers in case of abusive non-execution and providing the responsible state authorities with the necessary powers to that effect...” 34. Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies (adopted by the Committee of Ministers on 12 May 2004 at its 114th Session), in so far as relevant, reads as follows: “Remedies following a “pilot” judgment 13. When a judgment which points to structural or general deficiencies in national law or practice (“pilot case”) has been delivered and a large number of applications to the Court concerning the same problem (“repetitive cases”) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system. 14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. The existence of a remedy aimed at providing redress at national level for this category of people might allow the Court to invite them to have recourse to the new remedy and, if appropriate, declare their applications inadmissible. 15. Several options with this objective are possible, depending, among other things, on the nature of the structural problem in question and on whether the person affected by this problem has applied to the Court or not. 16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation. 17. Within the framework of this case-by-case examination, states might envisage, if this is deemed advisable, the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention, with a view to saving the Court from dealing with these cases and where appropriate to providing speedier redress for the person concerned. The criteria laid out in Recommendation Rec(2000)2 of the Committee of Ministers might serve as a source of inspiration in this regard. 18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases. 19. However, it would not be necessary or appropriate to create new remedies, or give existing remedies a certain retroactive effect, following every case in which a Court judgment has identified a structural problem. In certain circumstances, it may be preferable to leave the cases to the examination of the Court, particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies, which, moreover, would not be in place until the adoption of legislative changes.”