AS TO THE ADMISSIBILITY OF
Application no. 77608/01
by Lyubov TANASENKO
The European Court of Human Rights (Fourth Section), sitting on 28 February 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 19 May 2001,
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 and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Lyubov Tanasenko, is a Ukrainian national, who was born in 1937 and lives in the village of Liubitkoe, Ukraine. 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.
In 1998 the applicant brought a civil action against a person who refused to pay his debt to her (N.).
On 6 April 1998 the Botanica District Court found for the applicant and ordered N. to pay her 56.447 Moldovan lei.
The applicant obtained an enforcement warrant which the Bailiff did not enforce.
The applicant requested and obtained, on 1 July 1998, a court order for the seizure of N.’s apartment.
N. requested the same court to lift the seizure and on 22 November 1999 this request was granted. On 30 December 1999 N. purchased the apartment from the State (in the privatisation process).
The applicant requested a new order for the seizure of N.’s apartment, which was granted on 16 February 2000. This order was annulled by the same court on 16 March 2000.
On 24 March 2000 the same court issued another order for the seizure of N.’s apartment, which was annulled on 28 April 2000. The applicant did not appeal against any of the court decisions to annul the seizures.
On 3 May 2000 the apartment was sold to a third party; N. left for Russia.
The applicant subsequently complained about the non-enforcement of the decision to various authorities, which responded that enforcement was not possible in view of the fact that the applicant’s debtor lacked any assets and had left the country.
The judgment of 6 April 1998 has not been enforced to date.
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, in essence, about the non-enforcement of the final judgment in her favour, contrary to Article 6 § 1 and Article 1 of Protocol 1 to the Convention.
Article 6 § 1 of the Convention provides, insofar as relevant, the following:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1 to the Convention provides as follows:
“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 recalls that the failure of State authorities to take reasonable steps to ensure enforcement may involve State responsibility (Scollo v. Italy, judgment of 28 September 1995, Series A no. 315-C, § 44).
It appears that the court decisions of 16 March and 28 April 2000, annulling the order to seize N.’s apartment, allowed N. to sell it and thereby essentially deprived the subsequent enforcement proceedings of any chances of success. Whether or not those decisions were well-founded, they may be considered as effectively preventing enforcement and thus are “final” domestic decisions rejecting further enforcement (cf. Sitkov v. Russia (dec.) no. 55531/00, 9 November 2004).
However, the Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints which have been lodged within six months from the date of the “final” domestic decision. The present application was lodged on 19 May 2001, that is more than six months after the final domestic decision had been taken.
The Court concludes that any implicit complaint in respect of the decisions to lift the court order to seize was submitted out of time and should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
As for the non-enforcement after the date of 3 May 2000, when the apartment was sold to a third party, the State authorities could do nothing to ensure the enforcement of the judgment of 6 April 1998 in view of the fact that the debtor did not have any assets and had gone abroad.
It follows that this part of the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 thereof.
For these reasons, the Court unanimously
1. Decides to disjoin the admissibility and merits of the application;
2. Declares the application inadmissible.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
TANASENKO v. MOLDOVA DECISION
TANASENKO v. MOLDOVA DECISION