On 16 January 2018 the ECtHR issued a decision in the case Ciocodeică v. Romania (application no. 27413/09), concluding that there had not been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, and of Article 13 (right to an effective remedy).
Facts of the case
The applicant, Ms Maria Ciocodeică, is a romanian national.
Judgement
In 2004 the applicant lodged a civil action against her employer, a private company, seeking the revocation of its decision to dismiss her, and claiming various salary entitlements. In a final judgment of 29 September 2004, the Timișoara Court of Appeal ordered the company to revoke its dismissal decision and to pay the applicant pecuniary damages. The domestic court also awarded the applicant the costs and expenses incurred in the proceedings.
Enforcement
On 15 November 2004 the Timiș County Court validated the judgment pursuant to Article 374 of the Romanian Code of Civil Procedure as in force at the time. The applicant instituted enforcement proceedings on 21 January 2005, requesting the bailiffs’ office to enforce the judgment. On 26 January 2005 the bailiff issued a notice of payment and served it on the company.
Complaint by the company
Soon later, the company refused to fulfil its obligations. Moreover, it lodged a complaint seeking to have the enforcement proceedings annulled. On 2 June 2005 the Timișoara District Court allowed the company’s complaint against the enforcement proceedings. The court held that the procedural requirements had not been thoroughly complied with in so far as the bailiff had failed to serve the company with a copy of the enforceable judgment.
Re-enforcement
In the meantime, on 29 June 2005, the bailiff issued another notice of payment. On 4 July 2005 it was posted, together with the enforceable judgment, at the company’s main entrance. On 2 November 2005 the bailiff received a letter from the applicant, in which she enquired whether the company had complied with the outstanding judgment. The bailiff replied in the negative on 4 November 2005.
Creditor inactivity
In so far as that was the last exchange of information between the applicant and the bailiff concerning the impugned enforcement procedure, on 28 May 2007 the bailiff issued an official report, noting that, under Article 389 of the RCCP as in force at the time, the procedure had become time-barred.
Criminal proceedings lodged by the applicant
In 2005 the applicant complained to different State authorities that the company’s representatives had failed to execute the judgment. On 5 December 2006 a criminal investigation was initiated against the company’s administrator for refusal to execute the judgment. On 4 February 2008 the prosecutor’s office at the Timișoara District Court decided to discontinue the proceedings against the company’s administrator and fined him RON 1,000, namely approximately EUR 250, finding that his actions could not be classified as an offence. The prosecutor’s decision was appealed by the applicant. The Timişoara District Court on 17 October 2008 held that even though the company’s administrator had not executed the judgment, his actions could not be classified as an offence and, therefore, the administrative fine had been fair. In a final judgment of 28 January 2009 the Timiş County Court dismissed further appeals on points of law.
Closing down of the company
On 5 August 2014 the company’s two shareholders decided that the company should be liquidated and the shareholders’ decision was published in the Romanian Official Journal. It was noted in an accounting report drawn up on 30 August 2014 that the company’s only creditors were the two shareholders. the request to strike the company off the register was granted on 10 October 2014 and the Companies Registration Office decided that the decision would be published in the Romanian Official Journal. No appeal was lodged against the decisions taken by the Companies Registration Office in respect of the company.
The decision of the ECtHR
Firstly, the applicant argued that the bailiff had not acted with sufficient diligence so as to ensure that the outstanding judgment given in her favour was enforced. She contended that the bailiff should have tried more than once to visit the company’s premises in order to pressure it to comply with its obligations.
Secondly, the applicant concluded that generally, the non-enforcement of final judgments was also due to certain deficiencies in the domestic enforcement mechanism; she mentioned in particular the lack of severity of sanctions imposed on non-diligent bailiffs, as well as of the pecuniary penalties imposed on those debtors who refused in bad faith to comply with their obligations.
Non-violation of Article 13: baliff’s asserted lack of diligence and asserted lack of remedies
The Court noted that, while it is true that the bailiff’s acts were invalidated by the courts because he had not complied with all the procedural requirements, the applicant did not at any point lodge a complaint against the bailiff on account of alleged lack of diligence or professional fault, as allowed by romanian law.
Furthermore, even though the bailiff issued another notice of payment on 29 June 2005, the last exchange of information with the applicant took place in November of the same year. Under the national law, the applicant, as a creditor, was expected to remain active throughout the enforcement procedure and to prove that she was still interested in pursuing it on a regular basis – at least once every six months. In the present case, the Court noted that the applicant failed to comply with such an obligation.
The Court further noted that the applicant lodged several other applications with the domestic courts, whether civil or criminal, seeking to have the outstanding judgment enforced. While considering that the avenues pursued by the applicant have indeed proved to be fairly ineffective in her case, the Court considered that the applicant herself had failed to make proper use of the more appropriate remedies relevant to her case, such as diligently pursuing the enforcement procedure with the assistance of the bailiff, or raising this issue of the baliff’s lack of diligence before the competent courts.
In the light of the above, the Court considered that at the material time, there were legal remedies available to the applicant; however, the applicant had not properly and diligently pursued the aforementioned legal remedies or their aggregate.
Non-violation of Article 6
In the light of the conclusions in respect of Article 13 of the Convention, the Court considered that the applicant had not put forward any fact or argument capable of showing that the State authorities failed to do what could reasonably have been expected of them in order to enforce the impugned court decision.
In the light of the above, the Court considered that there had accordingly been no violation of Article 6 of the Convention or of Article 1 of Protocol No. 1 to the Convention.
