FEISAN v. ROMANIA
Inadmissible
Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicants, Mr Gheorghe Mihai Feisan and Ms Ioana Feisan, are Romanian nationals, who were born in 1958 and 1962 respectively and live in Cluj-Napoca and Covasna. The applicants’ request to represent themselves was granted. The Romanian Government (“the Government”) were represented by their Agent, Mrs I. Cambrea, from the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants secured a bank loan taken out by a private company (“company F”) with a mortgage on their apartment. The loan was also secured by a mortgage on real estate belonging to the S family. 4. By a judgment of 13 October 1998 (which became final in 2000) the Covasna County Court allowed an action lodged by the bank against its debtors for the payment of the outstanding interest on the loan granted to company F. The applicants were parties to the proceedings, together with the other debtors. The court ordered the applicants to pay jointly and severally the sum of 132,357,128 Romanian lei (ROL). 5. In 1999 insolvency proceedings were initiated against company F and the bank was registered on the creditors’ list. However, the bank preferred to initiate enforcement proceedings against the applicants. Thus, on 13 April 2001 the Sfântu Gheorghe District Court allowed the bank’s request and ordered the applicants to pay the outstanding debt, with related interest and the creditor bank’s enforcement costs. 6. On 21 March 2002 the applicants deposited ROL 10,200,000 with the Savings Bank to be made available to the creditor bank. On the same day they challenged the decision of the bank’s enforcement officer to sell their apartment at auction regardless of their intention to pay the amount for which they were liable. They also asked for the auction to be suspended. 7. By a judgment of 9 April 2002 the Sfântu Gheorghe District Court dismissed the applicants’ challenge, on the grounds that they had not paid the interest on the ROL 10,200,000 and the enforcement costs. 8. The applicants appealed, maintaining that they could not pay the interest and the enforcement costs, as that amount had never been calculated or notified to them. On 4 February 2003 their appeal was dismissed by the Covasna County Court without an examination of its merits on the ground that the applicants had not lodged their appeal within the statutory timelimit. 9. On 30 April 2002 the bank’s enforcement officer set the auction date for 21 May 2002. 10. On account of an insufficient number of bidders for the apartment, the enforcement officer reduced the minimum price to ROL 116,250,000 (approximately EUR 4,650) and set another auction date for 25 June 2002. 11. The apartment was bought at the minimum price established by the enforcement officer, and the deed of adjudication was issued on 29 July 2002. 12. On 15 October 2002 the bank’s enforcement officer issued the final order releasing the proceeds from the sale (procesul verbal de eliberare al prețului). 13. The applicants challenged the enforcement measure in court. The Sfântu Gheorghe District Court refused to register their complaint, which was sent back on 21 October 2002 with the indication that it should be lodged with the issuing body. The applicants’ complaint was lodged with the creditor bank on 23 October 2002. According to the applicants their complaint against the final order releasing the proceeds from the sale was never examined. 14. The buyer of the applicants’ apartment asked for the applicants to be evicted. By an interlocutory judgment of 27 August 2003, her request was allowed by the Sfântu Gheorghe District Court. On 1 September 2003 the applicants were ordered to vacate the apartment. 15. The applicants contested in court all the enforcement measures taken against them, including their eviction from the apartment. They also asked for the deed of adjudication of 29 July 2002 to be revoked and for their complaint against the order releasing the proceeds from the sale under the deed of adjudication to be examined. They claimed that the deed of adjudication was null and void, as they had paid their debt to the bank before their apartment was sold. 16. On 14 October 2003 the Sfântu Gheorghe District Court dismissed their complaint as unfounded. It dismissed the applicants’ complaint against the deed of adjudication on the ground of res judicata. It held that the submissions made by the applicants against the deed of adjudication had already been examined by the court in its final judgment of 9 April 2002 and therefore they could not be examined again. It also held that the eviction order had been issued on the basis of the final deed of adjudication in accordance with legal requirements. 17. The applicants appealed, claiming, inter alia, that their submissions against the deed of adjudication could not be dismissed on the ground of res judicata. On 1 March 2005 the Covasna County Court dismissed their appeal on points of law. It held that all the enforcement measures against the applicants were lawful and that as long as the applicants had not paid the whole debt to the creditor bank the debt secured against their flat could accordingly be enforced and they could not ask for cessation of enforcement. Further to the first-instance court’s finding that the judgment of 9 April 2002 had the status of res judicata, the appeal court held that although the two sets of proceedings had not had the same object they had the same purpose: annulment of the writ of execution and cessation of the enforcement measures against the applicants. Moreover, the arguments raised by the applicants in both proceedings were the same. Thus, the applicants’ main argument that they had paid their debt to the bank could not be raised at that stage of enforcement, when the deed of adjudication had become a writ of execution in the eviction proceedings. 18. The provisions regarding enforcement in civil and commercial matters were contained in Articles 372-580 of the Romanian Code of Civil Procedure (“the CCP”), as in force at the material time. 19. Under Article 379 of the CCP, enforcement could only be effected where there was a valid authority to execute an obligation which was certain, whose quantum had been fixed and which had fallen due. The debt was liquid if its quantum was determined by the debt instrument itself or by other uncertified deeds, issued by the debtor or acknowledged by it. 20. Article 399 of the CCP provided that a debtor under an authority to execute could institute proceedings in order to raise objections either against the creditor’s right to enforcement or against particular measures of enforcement. 21. The writ of execution could be challenged, but only in respect of its meaning, scope and enforcement and not its validity regarding the merits. A complaint could be lodged against the refusal of the enforcement authority to carry out an enforcement measure in the conditions stipulated by law. 22. Article 404 of the CCP provided that if the court allowed the objection against enforcement, depending on the case, it would either set aside the writ of execution or order its amendment, annulment or the cessation of enforcement, or the annulment or explanation of the writ of execution or the implementation of the enforcement order which the relevant authority was refusing to carry out.