CASE OF CIOCODEICĂ v. ROMANIA
No violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1969 and lives in Timişoara. 6. In 2004 the applicant lodged a civil action against her employer, a private company, C.G.H.T. (“the company”), seeking the revocation of its decision of 17 October 2003 to dismiss her, and claiming various salary entitlements. 7. On 29 April 2004 the Timiș County Court dismissed her action as illfounded. The applicant appealed. 8. In a final judgment of 29 September 2004 (“the judgment”), the Timișoara Court of Appeal allowed the applicant’s appeal. It ordered the company to revoke its dismissal decision and to pay the applicant pecuniary damages in the form of all her salary entitlements from 17 October 2003 until the pronouncement of the final judgment, updated and index-linked. The domestic court also awarded the applicant the costs and expenses incurred in the proceedings. 9. On 15 November 2004 the Timiș County Court validated the judgment (învestire cu formulă executorie), pursuant to Article 374 of the Romanian Code of Civil Procedure (hereinafter “the RCCP”), as in force at the time (see paragraph 37 below). 10. The applicant instituted enforcement proceedings on 21 January 2005, requesting the bailiffs’ office M.S.R. & S.A.I. (“the bailiff”) to enforce the judgment. 11. On 26 January 2005 the bailiff issued a notice of payment (somație) and served it on the company. 12. According to a report of 11 February 2005 issued by the bailiff, the bailiff and the applicant’s lawyer visited the company’s premises. As the company’s legal representative was not present, the bailiff granted the company a further five days in which to execute the final judgment of their own accord. 13. However, the company refused to fulfil its obligations. Moreover, it lodged a complaint seeking to have the enforcement proceedings annulled, pursuant to Article 399 of the RCCP, as in force at the time (see paragraph 39 below). During those proceedings and at the company’s request, on 24 February 2005 the Timișoara District Court ordered the suspension of the enforcement proceedings until a final judgment was given; the suspension was made subject to payment of a deposit of 4,000,000 Romanian lei (ROL), namely approximately 90 euros (EUR). 14. In response, on 16 May 2005 the applicant brought urgent proceedings seeking to have the impugned suspension lifted. She argued that the matter was urgent because she needed to obtain the salary entitlements that would allow her to provide for herself and her infant. 15. In a judgment of 18 May 2005 the Timișoara District Court dismissed the applicant’s request, holding that she had not proved the existence of any imminent damage, so as to justify the urgency of the request. 16. On 2 June 2005 the Timișoara District Court allowed the company’s complaint against the enforcement proceedings. The court held that the procedural requirements had not been thoroughly complied with in so far as the bailiff had failed to serve the company with a copy of the enforceable judgment. 17. The applicant lodged an appeal on points of law against the court’s judgment. On 6 October 2005 the Timiș County Court dismissed the applicant’s appeal on points of law as ungrounded. The first-instance judgment thus became final. 18. The company lodged another request seeking to obtain the annulment of the restriction order (anularea măsurii de poprire) issued by the bailiff in respect of its bank accounts. On 21 April 2005 the Timișoara District Court allowed the request, in so far as the restriction order had been issued subsequent to the suspension of the enforcement proceedings ordered by the court (see paragraph 13 above). 19. In the meantime, on 29 June 2005, the bailiff issued another notice of payment. On 4 July 2005 it was posted, together with the enforceable judgment, at the company’s main entrance. 20. On 2 November 2005 the bailiff received a letter from the applicant, in which she enquired whether the company had complied with the outstanding judgment. The bailiff replied in the negative on 4 November 2005. 21. In so far as this was the last exchange of information between the applicant and the bailiff concerning the impugned enforcement procedure, and in view of the obligations imposed by law on the creditor, who was required to play a constantly active role throughout the enforcement procedure, on 28 May 2007 the bailiff issued an official report, noting that, under Article 389 of the RCCP as in force at the time, the procedure had become time-barred (“perimarea executării”; see paragraph 38 below). It is not clear whether that report was communicated to the applicant or not. 22. On 5 May 2005 the applicant lodged a complaint before the Timișoara District Court seeking to obtain a court order for immediate enforcement of the judgment, pursuant to Article 5803 of the RCCP as in force at the time (see paragraph 40 below). 23. In a decision of 18 August 2005 the Timișoara District Court allowed the applicant’s complaint and ordered the company to pay a coercive fine of ROL 500,000 per day until it fulfilled its obligations. 24. An appeal by the company against that decision was allowed on 16 December 2005 by the Timiş County Court. The court held that the coercive fine had the nature of a civil penalty aimed at securing the enforcement of a personal obligation which could not be otherwise executed, as provided for by Article 5803. However, the payment of the company’s debt could be enforced with the assistance of a bailiff; therefore the applicant’s complaint was ill-founded. 25. On 12 July 2005 the applicant complained to the Minister of Justice about the outcome of the judgment of 2 June 2005 (see paragraph 16 above). The complaint was lodged under the provisions of Law no. 303/2004, defining the framework for judges’ disciplinary and criminal responsibility and the specific authorities empowered to initiate such proceedings. 26. On 24 August 2005 the applicant’s complaint was forwarded to the Timișoara Court of Appeal. On 5 September 2005 the Timișoara Court of Appeal noted that the impugned proceedings had been terminated by a judgment that was final and therefore not subject to appeal. 27. In 2005 the applicant complained to different State authorities that the company’s representatives had failed to execute the judgment. She relied on Articles 277, 278 and 280 of the Labour Code and Article 83 of Law no. 168/1999 regarding the resolution of labour disputes (see paragraphs 43-44 below). 28. On 5 December 2006 a criminal investigation was initiated against M.D., the company’s administrator, for refusal to execute the judgment. On 4 February 2008 the prosecutor’s office at the Timișoara District Court decided to discontinue the proceedings against M.D. and fined him RON 1,000, namely approximately EUR 250. The prosecutor investigating the case found that M.D.’s actions could not be classified as an offence. 29. A complaint lodged by the applicant against that decision was dismissed on 8 April 2008 by the senior prosecutor at the Timişoara District Court. 30. On 2 June 2008 both the applicant and M.D. appealed against the prosecutors’ decisions before the Timişoara District Court. The court dismissed both appeals on 17 October 2008. It held that the applicant’s appeal had been lodged outside the time-limit. With regard to M.D.’s appeal, it reiterated that even though he had not executed the judgment, his actions could not be classified as an offence and, therefore, the administrative fine had been fair. 31. In a final judgment of 28 January 2009 the Timiş County Court dismissed appeals on points of law lodged by the applicant and M.D. 32. On 5 August 2014 the company’s two shareholders decided that the company should be liquidated (dizolvare), in accordance with the provisions of Law no. 31/1990 on trading companies. At their request, the Companies Registration Office (Oficiul Registrului Comerţului) decided on 7 August 2014 to publish the shareholders’ decision in the Romanian Official Journal. The decision was published on 26 August 2014, in accordance with the provisions of Emergency Government Ordinance no. 116/2009 regulating the registration of specific acts in the companies register (see paragraph 48 below). 33. It was noted in an accounting report drawn up on 30 August 2014 that the company’s only creditors were the two shareholders. 34. On 10 October 2014 one of the shareholders asked the Companies Registration Office to strike the company off the register. The request was granted on the same day, and the Companies Registration Office decided that the decision would be published in the Romanian Official Journal. 35. No appeal was lodged against the decisions taken by the Companies Registration Office in respect of the company.