SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 63673/00
by János BALÁZS
against Hungary
The European Court of Human Rights (Second Section), sitting on 25 January 2005 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrR. Türmen,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 17 July 2000,
Having deliberated, decides as follows:
THE FACTS
A. Particular circumstances of the case
The applicant, Mr János Balázs, is a Hungarian national, who was born in Csornás and lives in Békéscsaba, Hungary. He is represented before the Court by Ms E. Klement, a lawyer practising in Békéscsaba. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In September 1993 the applicant mortgaged his house in order to guarantee a loan of 1,000,000 Hungarian forints (HUF) which a certain Mr A.D. contracted with a bank. The applicant also lent A.D. HUF 301,537 directly. A.D. failed to pay the loans. Therefore, in 1994 and 1995, the bank and the applicant, respectively, instituted proceedings against him.
On 11 January 1995 a final decision ordered A.D. to pay his debt to the bank. At the same time, the bank agreed with the applicant that, if unenforced by 30 June 1996, the amount would be levied on his house.
In the proceedings initiated by the applicant, on 5 September 1995 the Gyula District Court issued a payment order against A.D. and ordered him to release the applicant's house from the mortgage. A.D. did not oppose the order, which therefore became final on 5 October 1995.
In the proceedings instituted by the bank against A.D., the Gyula District Court issued an enforcement order on 6 October 1995.
On 1 November 1995 bailiff I.H. seized A.D.'s bank accounts, which, however, were in debit.
On 23 November 1995 the applicant informed the bailiff that some furniture had been seized in A.D.'s home. On 26 November 1995 the bailiff seized movable assets in A.D.'s home of an approximate value of HUF 115,000. The bailiff scheduled the auction of these assets for 5 March 1996. On 4 March 1996 the bank granted an extension of the deadline for payment to A.D. until 31 March 1996 and requested the suspension of execution until that date.
In the proceedings instituted by the applicant, on 6 March 1996 the District Court issued an execution order against A.D., and bailiff I.H. was appointed to collect the debt.
On 15 April 1996 the bailiff requested information about the value of A.D.'s car, which on 2 May 1996 the bailiff scheduled for auction on 4 June 1996. The following day the bailiff requested that the applicant's claim be registered against A.D.'s real estate.
At the auction on 4 June 1996 the bailiff collected HUF 30,000. On 18 June and 4 July 1996 the bailiff seized the purchase price from A.D.'s car and further assets.
On 12 November 1996 the bailiff unsuccessfully attempted to seize further assets at A.D's home.
A further auction of movables on 11 February 1997 was unsuccessful since no bidder appeared.
The applicant complained about the inefficiency of the proceedings to the President of the Békés County Regional Court. On 3 March 1997 the President ordered the bailiff to give the case priority.
On 7 March 1997 the bailiff urged the Land Registry to register the applicant's claim against A.D.'s real property. On 27 May 1997 the Land Registry refused to register the claim since A.D. did not own any such property.
In reply to the applicant, on 9 April 1997 the President of the Regional Court advised the applicant to file a complaint under section 217 of Act No. 53 on Judicial Execution.
The applicant's renewed complaint of 16 June 1997 concerning the bailiff's omissions was considered as an objection to execution (végrehajtási kifogás) and was transferred to the competent Gyula District Court. On 12 December 1997 the District Court dismissed the objection. The applicant having failed to appeal, the decision became final on 7 January 1998.
In November 1998 the applicant requested information about the state of the proceedings from the bailiff.
On 15 February 1999 the bailiff informed him that A.D. had no further assets to be seized.
Following the applicant's repeated complaints about the prolonged proceedings, on 1 March 1999 the President of the Regional Court instructed the bailiff to attempt to seize A.D.'s outstanding assets. The bailiff's attempt was however unsuccessful, since A.D.'s other debtors disputed the applicant's claim. Therefore, on 5 May 1999 the applicant was advised to institute proceedings directly against A.D.'s debtors, pursuant to section 113 of the Act on Judicial Execution.
The applicant's complaint of 8 January 2002 was transferred to the National Chamber of Judicial Executors. On 2 July 2002 the Chairman of the Committee of Ethics found the bailiff's actions lawful.
Apparently, the proceedings are formally still pending, in order to secure the seizure of any assets of A.D., of which the applicant may potentially take cognisance in the future.
B. Relevant domestic law
Act no. 53 of 1994 on Judicial Execution
Section 113
“If a third party fails to acknowledge a claim [of the debtor] ..., the person requesting enforcement may file an action against the third party for the collection of such claim.”
Section 217 - Objection to Execution
“(1) The party ... may file an objection to execution with the court having ordered it, in respect of any unlawful actions of the bailiff or for his failure to take action (hereinafter jointly referred to as an “executory action”).
(2) An objection to execution shall be filed within 15 days of the contested action. ...
(3) No objection may be filed against an executory action after a period of six months. ...
(4) The court shall decide on the objection by an order (végzés), after having heard the parties if necessary.”
Section 218 - Appeal in Connection with the Implementation of Execution
“(1) An appeal may be lodged against a court order rendered in the course of the implementation of an execution.”
Section 230 - Supervision of the Organisation of Execution
(as in force until 1 September 2001)
“... (2) The legality, professionalism and efficiency of the bailiff's procedure is comprehensively supervised by the President of the [competent] Regional Court.
(3) Regular control of the administration and official activities of bailiffs shall be exercised by the President of the [competent] District Court ...”
(as in force since 1 September 2001)
“... (2) In connection with the legality of the bailiff's procedure, the President of the [competent] Regional Court shall have powers to initiate disciplinary proceedings and to apply for an investigation into the bailiff's activities by the Chamber [of Judicial Executors].
(3) Regular control of the administration, official activities and the conduct of bailiffs shall be exercised by the Chamber.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the length and the inefficiency of the execution proceedings.
THE LAW
The applicant complains that the enforcement proceedings have lasted an unreasonably long time and been inefficient. He relies on Article 6 § 1 of the Convention, which in its relevant part provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submit that the applicant failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, in that he did not appeal against the order of 12 December 1997, although the proceedings in pursuit of his objection (végrehajtási kifogás) could have speeded up the proceedings. This could not be replaced by complaining to the President of the Regional Court, who had administrative rather than judicial power over the bailiff. Nor did he bring an action to collect A.D.'s outstanding assets from the latter's debtors. In any event, the reason for the failure to recover the applicant's claim was the fact that the debtor had practically no valuable assets.
The applicant contests these views.
The Court considers that it is not called on to determine the Government's objection, since the application is in any event inadmissible for the following reasons.
The Court observes that the applicant filed for enforcement in September 1995. On 15 February 1999 he was informed that the debtor had no further assets to be seized. Accordingly, the Court is satisfied that the period to be taken into consideration is three years and five months. In this connection, the Court hesitates to attribute significance to the fact that the proceedings are formally still pending, which appears to be only a procedural safeguard enabling the applicant to secure the seizure of any assets of A.D. which may potentially arise in the future. During the active phase of the proceedings, the bailiff's actions were rather regular and no particular period of inactivity imputable to the authorities can be observed. For the Court, the overall length has thus not exceeded a reasonable time.
To the extent that the applicant's complaints may be understood as a criticism of the bailiff's actions, the Court observes that, in the only objection proceedings initiated by him, the applicant did not appeal against the order of 12 December 1997 and that he did not object in due and proper form to the bailiff's actions on any other occasion. Moreover, on 5 May 1999 he was advised to sue A.D.'s debtors under section 113 of the Act on Judicial Execution – a legal avenue which he has never pursued.
As the applicant failed to make assiduous use of the remedies at his disposal to complain about the length or the inefficiency of the execution proceedings before the domestic courts, the Court considers that he cannot now complain to the Court about the length of those proceedings (see Štajcar v. Croatia (dec.), no. 46279/99, 20 January 2000. Consequently, the application must be rejected as being manifestly ill-founded as a whole, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy