AS TO THE ADMISSIBILITY OF
Application no. 38386/02
The European Court of Human Rights (Fourth Section), sitting on 28 March 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr M. Pellonpää,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 20 September 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant is a company registered in Moldova. It is represented before the Court by Mr G. Botezat, a lawyer practising in Ştefan Vodă. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 April 2002 the Chişinău Economic Court handed down a judgment by which it obliged the State owned company “Moldtranselectro” (“the debtor”) to pay its debt to the applicant in the total amount of 33,514 Moldovan lei (MDL). No appeal was lodged and the judgment became enforceable on 2 May 2002.
The applicant obtained an enforcement warrant which the Bailiff did not enforce. On 27 May 2002 it wrote to the Decision Enforcement Department of the Ministry of Justice requesting the execution of the judgment and the freezing of the property of its debtor. On 17 July 2002 it requested the Ministry of Justice to take measures for the execution of the judgment.
On 26 July 2002 the Centre District Court of Chişinău decided to return the enforcement warrant to the applicant without execution because the debtor did not have any assets. On 30 July 2002 the Decision Enforcement Department returned the enforcement warrant without execution. The same Department sent another letter to the applicant on 5 August 2002 stating that it had verified on 12 July 2002 the financial situation of the debtor and discovered that it had a significant debt towards the public budget. It had also verified the contention that the debtor continued to operate and had assets (for instance company cars) but it had not found any evidence of such assets.
On 31 October 2002 the applicant concluded a contract with the debtor, according to which the debtor ceded to the applicant its right to collect a debt from a third party and thereby was relieved of its debt towards the applicant. The applicant did not submit that it had attempted to collect the debt from the third party.
B. Relevant domestic law
The relevant domestic law has been set out in this Court’s judgment in the case of Prodan v. Moldova, no. 49806/99, ECHR 2004-... (extracts).
The applicant complained under Article 6 § 1 and Article 1 of Protocol 1 to the Convention about the failure of the State to enforce the final judgment of 16 April 2002.
The applicant complains about the non-enforcement of the judgment of 16 April 2002. It relies on Article 6 § 1 and Article 1 of Protocol 1 to the Convention, which, insofar as relevant, provide as follows:
Article 6 § 1:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...”.
Article 1 of Protocol 1:
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
The Court notes that the enforcement warrant was returned without enforcement and that on 31 October 2002 the applicant concluded a contract for the transfer of the debt from its original debtor to a third party. In the absence of any comment on the part of the applicant in respect of the Government’s submission that there was no evidence of any attempt to collect the debt from the third party, the Court must assume that no such attempt has taken place.
The Court therefore considers that the evidence is that the failure to collect the debt is attributable to the applicant’s own lack of action and is not attributable to the State. It follows that this application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
1. Disjoins admissibility from the merits of the application; and
2. Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
POJARNITA-MED v. MOLDOVA DECISION
POJARNITA-MED v. MOLDOVA DECISION