CASE OF MAZEPA v. MOLDOVA
Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1
Nicolas Bratza
5. The applicant was born in 1953 and lives in Chişinău. She is a second degree invalid. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant owns part of a house in which her neighbour (V.) owns another part. V. re-constructed her part of the house without the prior agreement of the applicant and the applicant's part of the house was seriously damaged as a result. 8. On 11 February 1998 the applicant initiated court proceedings claiming damages from V. Relying on an expert's assessment of the damage caused to the applicant's house, on 27 May 1999 the Buiucani District Court awarded her 12,635 Moldovan lei (MDL) (the equivalent of 1,054 euros (EUR) at the time). No appeal was made and the judgment became final and enforceable 15 days later. 9. According to the applicant, she wrote to various State authorities requesting the enforcement of the award but it was not enforced. On 10 July 2000 she informed the Buiucani District Court that the judgment of 27 May 1999 had not been enforced and asked it to change the manner of enforcing the judgment by transferring V.'s part of the house to the applicant. She emphasised that her own part of the house had been severely damaged and that the damage had been aggravated with the passage of time, causing a real threat to her life. The applicant relied, inter alia, on Article 359 of the Code of Civil Procedure (see paragraph 24 below). 10. On 13 April 2001 the Buiucani District Court accepted the claim. The new enforcement warrant was submitted to the court on 4 July 2001, following which the bailiff requested V. to comply with the judgment. 11. The applicant also requested the Supreme Court of Justice to transfer the examination of her cases against V., including the enforcement of the judgment of 27 May 1999, to another court in view of the inactivity of the Buiucani District Court. On 7 February 2001 the Supreme Court of Justice rejected that request as unfounded. 12. On 7 May 2001 the Buiucani District Court adopted an additional judgment, awarding the applicant damages (MDL 6,558) against V. for the late enforcement of the judgment of 27 May 1999. V. appealed. On 12 September 2001 the Chişinău Regional Court quashed that judgment and ordered a full re-hearing. 13. On 11 January 2002 the bailiff organised an auction for the sale of the part of the house belonging to V. but nobody offered the minimum asking price set. He then proposed that the court accept the applicant's request to be given title to that part of the house on account of V.'s debt to her. 14. On 29 January 2002 the District Court accepted that request. 15. In parallel to all the proceedings mentioned above, the applicant initiated administrative proceedings for the annulment of a municipality's decision adopted in 1996 confirming the lawfulness of V.'s re-construction of the house. On 17 November 1999 the Buiucani District Court accepted that request and on 5 July 2000 the Chişinău Regional Court upheld that judgment. On 28 September 2000 the Court of Appeal quashed the two judgments and adopted a new one, rejecting the applicant's claims. 16. V. lodged a request for the revision of judgments of 27 May 1999 and 29 January 2002 because the expert report on the damage had been signed by an expert lacking the required training and the District Court had based its judgment of 27 May 1999 on that report. The report stated the level of training of its author, who was registered by the Chamber of Commerce as that of a 1st (highest) degree expert with 23 years' work experience. On 25 April 2001 the Buiucani District Court rejected V.'s request. 17. On 25 April 2002 the Chişinău Regional Court accepted V.'s request and quashed the judgment of 27 May 1999 and the decision of 13 April 2001 (see paragraphs 8 and 10 above), ordering a full re-examination of the case in view of the expert's lack of adequate training. The court accepted V.'s claim that she had only found out about the expert's lack of training in December 2000 and had thus not exceeded the three-month time-limit for lodging the revision request. The applicant informed the Court about the quashing in a letter of 3 March 2003. 18. On 12 November 2002 the Buiucani District Court ordered an expert report to be made. On an unspecified date in 2003 the Republican Centre for Research and Regulation of Constructions (“CERCON”, a State institution) submitted its report to the court. It confirmed that, following the reconstruction of V.'s part of the house in serious violation of building regulations, the applicant's part of the house had suffered a major deterioration and had become uninhabitable. New cracks appeared in the wall after a repair, which meant that the process had not yet stabilised. A part of V.'s house created a particular danger during earthquakes and the applicant's house had lost all of its resistance to earthquakes. CERCON assessed the damage caused to the applicant's house at MDL 109,920 (EUR 7,266). 19. According to a statement by the judge in charge of the applicant's case regarding the proceedings after the revision of 25 April 2002, the hearings had to be adjourned (by one month on each occasion) due mainly to the applicant's representative's absence on the following dates: 1 September 2003 (the first hearing in the re-opened proceedings), 7 November 2003, 8 December 2003, 17 February 2005, 17 March 2005, 9 June 2005 and 25 August 2005. 20. Three more one-month adjournments had to be ordered at V.'s request: on 6 October 2003, 9 December 2004 and 30 January 2006. 21. On 5 February 2004 the applicant requested a new expert report to be drawn up in respect of the damage caused to her part of the house. V. supported this request. On 9 February 2004 the questions for the experts were formulated and on 20 February 2004 the court ordered the parties to bear equally the experts' costs. The expert report was sent to the court by the Republican Institute for Judicial Expertise and Criminalistics (“IREJC”, a State institution) on 8 November 2004, following a visit to the applicant's part of the house on 26 October 2004. The report largely confirmed the findings of the two previous expert reports and assessed the damage caused to the applicant's house at MDL 125,174 (EUR 7,784). It also found that the process of the deformation of the house had not yet stopped and new cracks had appeared after minor repairs had been undertaken. On 15 April 2005 the court accepted V.'s objections to the expert report and ordered a new report to be drawn up by IREJC. On 13 May 2005 IREJC sent the case file back to the court without drawing up the report. On 19 May 2005 the experts charged with drawing up the report were summoned, but they failed to appear on 5 July 2005. On 29 November 2005 V. requested another expert report. On 6 December 2005 the court sent IREJC a request for a new expert report, but on 19 December 2005 the IREJC returned the case file since V. had failed to pay IREJC its costs, as ordered by the court. The applicant stated that she did not want another report since the previous one had confirmed her position. On 30 January 2006 the court ordered the parties to each bear IREJC's costs and ordered a new report to be drawn up. In their observations of September 2006 the Government informed the Court that IREJC had not yet drawn up its report and asked for permission to submit it to the Court when it was ready. No such report has been submitted to date. 22. The proceedings are still pending before the Buiucani District Court. 23. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)). 24. In addition, the relevant provisions of the Code of Civil Procedure, applicable at the relevant time, read as follows: “Article 5. Examination of civil actions by the court. The court shall begin the examination of a civil case: ... 3) at the request of the natural or legal person who asks for the protection of his or its rights or interests protected by law; ... TITLE FIVE EXECUTION OF COURT JUDGMENTS Article 336. Court judgments and decisions of other authorities, which shall be executed. The following shall be executed in accordance with the rules in the present Title of this Code: 1) judgments ... adopted by courts in civil cases: ... Article 337. Documents of forced execution. The following are considered documents of forced execution: 1) execution warrants ... adopted by courts...; Article 338. Issuance of an execution warrant. Execution warrants shall be issued by the court to the creditor after the decision becomes final... Execution warrants shall be issued directly to the creditor or, at his or her request, shall be sent for enforcement directly by the court to the territorial subdivision of the Decisions' Enforcement Department within the Ministry of Justice. Article 343. Submission of the document of forced execution. The bailiff shall begin the enforcement of court judgments at the request of the persons mentioned in Article 5 of the present Code ... Article 349. Verification of the execution of the judgment. The judge shall verify the correct and timely execution of the judgment. Article 359. Measures of forced execution. The following shall be the measures of forced execution: 1) execution against the debtor's assets through their freezing and sale; ...”