CASE OF BALAN v. MOLDOVA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicant, Mr Vasile Balan, is a Moldovan national who was born in 1956 and lives in Pănăşeşti. He was represented before the Court by Mr Lilian Osoian, a lawyer practising in Chişinău. The Government were represented by their Agent, Mr Vladimir Grosu. 2. The facts of the case may be summarised as follows. 3. On 28 September 2003 the applicant was accidentally injured by an individual, D., sustaining an injury to his left thigh bone. On an unspecified date the applicant instituted civil tort proceedings against D., seeking a court order obliging D. to pay him compensation for pecuniary damage. 4. On 26 November 2004 the Străşeni District Court ordered D. to pay the applicant 7,184 Moldovan lei (MDL) (the equivalent of 435 euros (EUR) in compensation for pecuniary damage and MDL 215 (EUR 13) for legal fees. This decision was final and an enforcement warrant was issued. It has not been enforced to date. 5. On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part). 6. On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings. 7. On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 9 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible. 8. By a letter of 10 November 2011 the applicant informed the Court in response that he was not intending to use the new remedy because it was not effective. In particular, the applicant argued that even the denomination of Law no. 87 suggested that it offered a remedy only when a final judgment had not been enforced in a timely manner but not when the judgment had not been enforced at all. In the applicant’s view, the law did not provide for a mechanism to trigger a rapid enforcement of an unenforced final judgment. Moreover, the applicant submitted that it would be an excessive burden for him to be requested to go back to the domestic courts and attempt to exhaust the new remedy. 9. According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. According to section 1 of the law, it should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. According to section 4 of the law the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint. 10. At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings.