CASE OF BOTEZATU v. THE REPUBLIC OF MOLDOVA
Preliminary objection joined to merits and dismissed (Article 34 - Victim);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);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
4. The applicant was born in 1978 and lives in Băcioi. 5. The applicant is a police officer and on 21 July 2004 the Centru District Court delivered a judgment obliging the Chișinău municipality to provide him and his family with social housing. This judgment was upheld by the Chișinău Court of Appeal on 19 October 2004 and became final on 4 November 2004. Enforcement proceedings were instituted on 11 May 2005. 6. After the communication of the present case to the Government, on 2 August 2011, the applicant initiated court proceedings under Law no. 87 (see paragraph 12 below) seeking enforcement of the final judgment in his favour and compensation for non-pecuniary damage in the amount of 10,000 euros (EUR), for pecuniary damage in the amount of 129,700 Moldovan lei (MDL) (equivalent to EUR 7,886) (MDL 123,200 of which represented the rent he had paid from September 2004 to December 2011 for alternative accommodation and MDL 6,500 of which represented costs and expenses before the Court), and MDL 3,950 (EUR 240) as costs and expenses in domestic proceedings. In support of his claims in respect of pecuniary damage, the applicant submitted four lease contracts, each of them concluded for periods of less than three years. 7. In court, the Ministry of Finance disputed the validity of the lease contracts, arguing that they were fictitious because the landlady and the applicant were relatives, because the landlady had not applied for commercial registration (patenta de intreprinzator) to earn profits from lease, and because the contracts had not been registered with the tax authorities until 2011 and had never been registered in the land register. 8. On 30 November 2011 the Rîșcani District Court acknowledged that there had been a violation of the applicant’s rights under Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention resulting from the nonenforcement of the final judgment in his favour for over seven years. The court dismissed the arguments of the Ministry of Finance, holding that the lease contracts had been concluded for periods of less than three years and were therefore not subject to mandatory registration in the land register. The court also took the view that the landlady’s failure to register promptly her lease profits and her commercial activity had resulted in penalties and taxes ‒ which had been paid ‒ but that this failure was anyway not imputable to the applicant and did not affect the validity of the contracts. The court awarded the applicant MDL 112,000 (equivalent to EUR 7,050) in respect of non-pecuniary damage and granted his claims in respect of pecuniary damage and for costs and expenses in full. The Ministry of Finance appealed. 9. On 29 February 2012 the Chișinău Court of Appeal upheld the appeal, quashed the first-instance judgment and delivered a new judgment, acknowledging a violation of the applicant’s right under Article 6 of the Convention resulting from the non-enforcement of a final judgment for a period of 78 months (from 11 May 2005 to 30 November 2011). The court awarded the applicant MDL 36,000 (equivalent to EUR 2,270) in respect of non-pecuniary damage and MDL 8,965 (EUR 565) for costs and expenses. The court dismissed the applicant’s claims in respect of pecuniary damage as unsubstantiated, arguing that the lease contracts had been ineffective vis à vis the State on the grounds cited by the Ministry of Finance (see paragraph 7 above) and cited Article 876 of the Civil Code. This judgment was final. 10. On 8 August 2012 the municipality issued the applicant with an occupancy voucher (bon de repartiție), entitling him to move into a new flat. 11. By a letter of 15 May 2014 the Government informed the Court that the final judgment in the applicant’s favour had been enforced on 8 August 2012. The applicant did not dispute this.