BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF RJ IMPORT ROGER JAEGER A.G. AND
RJ IMPORT BUCUREŞTI
S.A. v. ROMANIA
(Application
no. 19001/05)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment is final but it may be subject to editorial revision.
In the case of RJ Import Roger
Jaeger A.G. and RJ Import Bucureşti S.A. v. Romania,
The
European Court of Human Rights (Third Section), sitting as a
committee composed of:
Ján
Šikuta,
President,
Ineta
Ziemele,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19001/05)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two
companies, RJ Import Roger Jaeger A.G. registered in Switzerland
(“the first applicant”) and RJ Import Bucureşti S.A.
registered in Romania (“the second applicant”), on 17 May
2005.
- The
applicants were represented by Mr Martin Meyer, a lawyer practising
in Strasbourg. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
16 April 2009 the President of the Third
Section decided to give notice of the application to the Government.
It was also decided to examine the merits of the application at the
same time as its admissibility (former Article 29 § 3).
- On
18 March 2010 the applicants requested the Court to hold a public
hearing. The Court decided that
no hearing on the admissibility and the merits of the case was
required (Rule 59 § 3 of the Rules of
Court).
- In
accordance with Protocol No. 14 to the Convention, the application
was assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, RJ Import Roger Jaeger A.G., is a
commercial company located in Herrliberg, Switzerland. The second
applicant, RJ Import Bucureşti S.A., located in Bucharest,
Romania, is a subsidiary company of the first applicant who ownes 51
% of its shares.
- In
1997 the second applicant concluded with the State-owned company S.C.
Craser S.A. (“Craser”) a purchasing contract
for industrial equipment. The second applicant paid the price of the
contract partly in money partly by buying a debt of the seller. By
subsequent commercial transactions the creditor of the debt owed by
the second applicant became the first applicant.
- By
a final judgment of 16 April 2002 the Bucharest Court of Appeal
annulled the 1997 contract finding that it had been concluded in
breach of the law. At an unspecified date the second applicant had
returned the equipment to the seller but the latter refused to return
the price received.
- On
22 April 2004 the second applicant requested before the courts the
reimbursement of the price paid according to the purchasing contract
as well as the value of the investments subsequently incurred with
respect to the equipment in question. On 17 November 2004 the
Bucharest County Court obliged Craser to pay the second
applicant 1,350,000 Swiss Francs as price of the contract,
35,994,375,000 Romanian Lei (ROL) as investments incurred and ROL
5,171,000 as court fees. The judgment became final on 2 December
2004 as it was not appealed against by the parties.
- On
9 July 2004 the first and second applicants requested before the
courts the opening of bankruptcy proceedings against Craser.
By a judgment of the Dolj County Court of 3 November 2004 the
bankruptcy proceedings were commenced. On 27 April 2005 the Craiova
Court of Appeal decided by a final judgment to include both
applicants on the list of creditors: the first applicant with the
debt it had bought and the second applicant with the amounts awarded
by the judgment of 17 November 2004. According to the information
submitted by the parties these proceedings are still pending before
the domestic courts.
- Despite
the applicants’ efforts, the judgment of 17 November 2004
remained non-enforced to date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law and practice
- The relevant domestic law concerning the execution of
final judgments, namely excerpts of the Civil Procedure Code and Law
no. 188/2000 on the powers and functions of bailiffs, is summed
up in the Court’ s judgment in the case of Topciov v.
Romania ((dec.), no. 17369/02, 15 June 2006).
- The
relevant domestic law concerning the bankruptcy proceedings, namely
excerpts of the Law no. 64/1995 on the reorganisation and bankruptcy,
is summed up in the Court’s judgment in the case of Moldoveanu
v. Romania (no. 13386/02, 29 July 2008).
B. Parliamentary Assembly of the Council of Europe
Resolution 1787 (2011) entitled: Implementation of the judgments of
the European Court of Human Rights
- On
26 January 2011 the Parliamentary Assembly of the Council of Europe
adopted this Resolution by which it notes with grave concern the
continuing existence, in some of the member states, of major systemic
deficiencies which cause large numbers of repetitive findings of
violations of the Convention. In this context the Assembly urged
Romania to tackle with priority the problem of non-enforcement of
final court decisions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained of the non-enforcement of
the final judgment in their favour and of the breach of their right
to peaceful enjoyment of possessions. They relied on Article
1 of Protocol No. 1 to the Convention and in substance on
Article 6 § 1 of the Convention,
which read as follows in their relevant parts:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 1 of Protocol No. 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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government raised two objections as to the admissibility of the
application. On the one hand they contested the first applicant’s
victim status and, on the other hand, they argued that the applicants
had not exhausted the available domestic remedies with regard to
their complaint.
1. Victim status
- The
Government submitted that the first applicant lacks victim status
because it was not party to the domestic proceedings finalised with
the 17 November 2004 judgment.
- The
applicants contested this argument and stated that the first
applicant has victim status because it had bought the debt owed by
the second applicant and was accepted as creditor together with the
second applicant within the bankruptcy proceedings, as stated by the
27 April 2005 judgment of the Craiova Court of Appeal.
- The
Court reiterates that a person cannot complain about a violation of
his or her rights in proceedings to which he or she was not a party,
even if he or she was a shareholder and/or executive director of the
company which was party to the proceedings (see, among other
authorities, F. Santos Lda. and Fachadas v. Portugal
(dec.), no. 49020/99, 19 September 2000, and Nosov v. Russia
(dec.), no. 30877/02, 20 October 2005). The Court notes that in
the present case solely the second applicant was party to the
proceedings finalised by the 17 November 2004 judgment, of which the
applicants complained about not being enforced by the authorities.
In
view of the above, the Court allows the Government’s exception
and considers that the application, in so far as it concerns the
first applicant, is incompatible ratione personae with the
provisions of the Convention within the meaning of Article 35 §
3, and must be rejected in accordance with Article 35 § 4 of the
Convention. Therefore, the Court will examine the current application
only with respect to the second applicant.
2. Non-exhaustion of domestic remedies
-
The Government submitted that the applicants had not exhausted
domestic remedies because the bankruptcy proceedings, in the course
of which they were recognised as creditors, are still pending before
the national courts.
- The
applicants contested this argument.
- The
Court notes that, as far as it concerns the second applicant, this
exception is closely linked to the merits of the application. It
will therefore deal with the objection in its examination of the
merits below.
3. Conclusion
- The
Court notes that the complaint concerning the non-enforcement of the
17 November 2004 judgment with respect to the second applicant is not
manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. Nor is it inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
- The
Government submits that, once the second applicant had enlisted its
debt arising from the 17 November 2004 judgment within the bankruptcy
proceedings, the enforcement of the said judgment could be done only
in the framework of these proceedings.
- The
second applicant contested this argument.
- The
Court reiterates that the execution of a judgment given by any court
must be regarded as an integral part of a “hearing” for
the purposes of Article 6 (see Hornsby
v. Greece, no. 18357/91, § 40,
19 March 1997). The Court also recalls its extensive case-law
concerning the non-enforcement or the delayed enforcement of final
domestic judgments by the Romanian authorities (see, amongst many
other cases, Tacea v. Romania,
no. 746/02, 29 September 2005; Dragne
and Others v. Romania, no. 78047/01,
7 April 2005; Orha v. Romania,
no.1486/02, 12 October 2006).
- The Court recalls that that it is not open to a State
authority to cite the lack of funds or other resources as an excuse
for not honouring a court award, nor can the State, in such
circumstances, justify its failure to enforce the judgment against a
State enterprise with reference to the liquidation of the company
(see Grigoryev and Kakaurova v. Russia, no. 13820/04, §
37, 12 April 2007; Moldoveanu v. Romania, no. 13386/02, §
35, 29 July 2008; Aurelia Popa v. Romania, no. 1690/05, §
24, 26 January 2010, and, mutatis mutandis, Burdov v.
Russia, no. 59498/00, § 35, ECHR 2002-III).
- The Court has frequently found violations of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1 in cases
raising issues similar to the ones in the present case (see, for
example, Aurelia Popa, cited above, §§ 24-25;
Moldoveanu, cited above, §§ 35, 36; Burdov,
cited above, §§ 33 42, as well as Gerasimova
v. Russia, no. 24669/02, §§ 14-22, 13 October
2005, and Gizzatova v. Russia, no. 5124/03, 13 January 2005,
§§ 18-29).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach, in the present case, a
different conclusion than the one adopted in the cases mentioned at
paragraphs 27 and 28 above. It therefore finds that, by
failing for years to comply with the enforceable judgment in the
second applicant’s favour, the domestic authorities impaired
the essence of its “right to a court” and prevented it
from receiving the money it had legitimately expected to receive.
- The
foregoing considerations are sufficient to enable the Court to
dismiss the Government’s objection as to the exhaustion of
domestic remedies and to conclude that there has accordingly been a
violation of Article 6 of the Convention and Article 1 of
Protocol No. 1 with respect to the second applicant.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- In
the present case, the Court notes that on 18 September 2009, namely
after the communication of the application to the Government but
before the receipt of the latter’s observations, the applicants
formulated their just satisfaction claims supported by various
documents.
On 2
October 2009 the Court referred to its letter of 16 April 2009 by
which it had informed the applicants of the communication of their
application and reminded them that they had to await for the
Government’s observations on the admissibility and merits of
the application.
On 21
December 2009, upon receipt of the Government’s observations,
the Court invited the applicants to submit their observations in
reply together with their just satisfaction claims while drawing
their attention to Article 60 of the Rules of Court which provides
that the applicants must submit all just satisfaction claims within
the time-limit fixed for the submission of their observations.
However,
on 27 January 2010, in their reply to the Government’s
observations, the applicants did not reiterate their submissions on
just satisfaction nor did they unequivocally make a referral to their
correspondence of 18 September 2009.
- The
Government noted that the applicants had made no claim for just
satisfaction within the time allowed for that purpose by the Court in
its letter of 21 December 2009 and invited it to make no award under
this head.
- The Court reiterates that it does not make any award
by way of just satisfaction where quantified claims and the relevant
documentation have not been submitted within the time-limit fixed for
that purpose by Rule 60 § 1 of the Rules of Court, even if
the applicant had indicated his claims at an earlier stage of the
proceedings (see Willekens v. Belgium, no. 50859/99, § 27,
24 April 2003; Fadıl Yılmaz v. Turkey, no. 28171/02,
§§ 24-27, 21 July 2005; Gourguenidze v. Georgia,
no. 71678/01, § 81, 17 October 2006; Arsenovici v. Romania,
no. 77210/01, §§ 53-55, 7 February 2008).
- In
view of the circumstances of the present case, the Court considers
that the applicants failed to comply with their obligations under
Rule 60 of the Rules of Court. Since no valid claim for just
satisfaction has been made, the Court considers that there is no
reason to award the applicants any amount in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Upholds the Government’s objection that
the first applicant cannot claim to be a “victim” for the
purposes of Article 34 of the Convention of a violation of Article 6
§ 1 of the Convention and of Article 1 of Protocol No. 1;
- Joins
to the merits
the Government’s objection concerning the non exhaustion
of domestic remedies and dismisses
it;
- Declares the application admissible with respect
to the second applicant;
- Holds that there has been a violation of Article
6 § 1 of the Convention and of Article 1 of Protocol No. 1 to
the Convention with respect to the second applicant.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Ján
Šikuta Deputy Registrar President
