AS TO THE ADMISSIBILITY OF
Application No. 27880/95
by Bogdan JASINSKI
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 January 1995
by Bogdan Jasinski against Denmark and registered on 18 July 1995 under
file No. 27880/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Polish citizen, born in 1942. He is a
fisherman, director and sole shareholder in the limited company
OTECH Pty. Ltd. He resides in Ustka, Poland.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 28 September 1990 OTECH Pty. Ltd. was founded as a family
business involving the applicant, his wife and his son. The applicant
subsequently took over all shares of the company. On 14 January 1991
OTECH Pty. Ltd., represented by the applicant, purchased a fishing
vessel in Denmark from a private person. The price was fixed at
1,500,000 DKK and was paid partly in cash and partly through a
mortgage-agreement with first priority in the vessel. The deal was
finalised on 31 January 1991 following which the applicant commenced
his trade as a fisherman. The vessel was entered into the Polish Ships'
Registry in Gdansk on 10 February 1992.
Subsequently, the vendor transferred the mortgage-agreement to
a bank which, in 1993, requested the Nexø Bailiff's Court (Nexø
fogedret) to levy execution on the vessel as the mortgage-agreement
allegedly had not been honoured by the purchaser.
On 10 June 1993 the Nexø Bailiff's Court held a meeting on board
the vessel which at the time moored at Nexø. Having heard the applicant
the Court decided to levy execution on the vessel and to deprive the
applicant in his capacity as director of OTECH Pty. Ltd. of the right
to dispose of the vessel. The applicant and the rest of the crew were
ordered to leave the vessel immediately.
The applicant then obtained certain assistance through the Polish
Consulate and an appeal was lodged against the Bailiff Court's decision
to the High Court of Eastern Denmark (Østre Landsret) which upheld it
on 4 August 1993 after an examination of the written observations
submitted. On 26 October 1993 the applicant applied for leave to appeal
to the Supreme Court (Højesteret). This was refused on 29 November
1993. Subsequent requests for leave to appeal, most recently on
11 January 1995, remained unsuccessful.
In the meantime the vessel was moved from Nexø to Frederikshavn
where the bank, i.e. the creditor, apparently in August 1993,
instituted enforcement proceedings in the Frederikshavn City Court
(retten i Frederikshavn) in order to recover the debts. A compulsory
auction sale of the vessel was scheduled for 16 December 1993 but it
appears that a number of problems arose as to the list of priority
creditors. On 29 December 1993 the applicant was informed by the Court
that the auction had been postponed until 13 April 1994 due to the
conflict concerning creditor priorities and due to the fact that the
vessel was registered in Poland which again involved interpretation of
Polish law and the assistance of the Ministry of Foreign Affairs.
It appears that the applicant challenged the list of priority
creditors established by the Frederikshavn City Court and that the
auction was therefore postponed again. By letter of 14 April 1994 the
Court requested the applicant to appear on 5 May 1994 and to submit
evidence and further information showing the order of creditor
priorities as stated by him.
It is unclear whether the applicant appeared in court but the
auction sale was postponed until 1 September 1994 as the priority
question of the two major creditors from Denmark and Poland,
respectively, remained unresolved. The applicant was informed of this
on 9 May 1994.
It appears that the Frederikshavn City Court then obtained an
expert opinion from the director of the Legal Sciences Institute of the
Polish Academy of Sciences which was transmitted to the applicant on
21 July 1994 for comments. At the same time the Court decided to
postpone the auction sale until 6 October 1994.
On 19 October 1994 the Frederikshavn City Court informed the
applicant that the above expert opinion had been transmitted to the
Polish Embassy which had forwarded it to the Polish Ministry of
Justice. As comments from the Polish authorities had not yet been
submitted the Court furthermore decided to postpone the auction until
further notice.
It appears that a further court session was held on 17 August
1995 following which the parties were, on 6 September 1995, summoned
to appear on 16 November 1995 for the auction sale. The auction sale
took place on that date and the vessel was sold for 1,000 DKK to the
bank which had instituted the enforcement proceedings. The bank also
had to cover the costs and expenses incurred in connection with the
maintenance and necessary repairs, port dues and insurance premiums for
the vessel as well as the costs incurred in connection with the auction
sale.
It is not clear whether the applicant was present at the auction
but he was informed of the outcome on 1 December 1995.
The applicant then addressed himself to the High Court of Western
Denmark (Vestre Landsret) trying again to challenge the initial
decision of the Nexø Bailiff's Court of 10 June 1993 to levy execution
on the vessel and to challenge the compulsory auction of the vessel.
By decision of 19 April 1996 the High Court stated that the applicant
could not challenge the initial decision which had been upheld by the
High Court of Eastern Denmark on 4 August 1993. Furthermore, the Court
found no reason to annul the compulsory auction. Leave to appeal
against this decision was refused on 23 October 1996.
COMPLAINTS
The applicant complains that in the proceedings in which the Nexø
Bailiff's Court levied execution on the vessel on 10 June 1993, a
decision which was subsequently upheld by the High Court of Eastern
Denmark on 4 August 1993, he did not have a fair and public hearing.
In particular as regards the proceedings in the High Court the
applicant submits that he was never informed of any procedural steps
and he was represented by a person he had never heard of and who had
no authority to represent him.
As regards the enforcement proceedings in the Frederikshavn City
Court the applicant complains that they were not terminated within a
reasonable time which again increased the costs of the proceedings.
The applicant invokes Article 6 of the Convention.
THE LAW
1. The applicant complains of the execution proceedings in the Nexø
Bailiff's Court and the High Court of Eastern Denmark and invokes in
this respect Article 6 (Art. 6) of the Convention maintaining that he
did not have a fair and public hearing.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of 29 November 1993 to refuse
leave to appeal to the Supreme Court was the final decision regarding
the subject of this particular complaint, whereas the application was
submitted to the Commission on 17 January 1995, that is, more than six
months after the date of this decision. Furthermore, an examination of
the case does not disclose the existence of any special circumstances
which might have interrupted or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicant further complains of the length of the enforcement
proceedings before the Frederikshavn City Court and invokes Article 6
(Art. 6) of the Convention also in this respect.
In so far as relevant this provision reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a ... hearing within a reasonable time ..."
The Commission has no doubt that the proceedings involved a
"civil right" within the meaning of the above provision as they
concerned, inter alia, complicated questions of ownership and mortgage
priorities. On the other hand the Commission notes that the vessel in
question was owned by OTECH Pty. Ltd. in which the applicant was the
sole shareholder at the relevant time. The Commission does not consider
it necessary to determine whether the applicant may, in these
circumstances, be considered to be a "victim" within the meaning of
Article 25 (Art. 25) of the Convention because even assuming this to
be the case the complaint is in any event inadmissible for the
following reasons.
The Commission recalls that the proceedings appear to have
commenced in the Frederikshavn City Court in August 1993 and that they
ended on 1 December 1995 when the applicant was informed of the outcome
of the auction sale. The period in question accordingly lasted
approximately two years and four months. The auction sale was first
fixed for 16 December 1993 which date had to be vacated as the
applicant challenged the creditor priority list obtained by the court.
As the vessel was registered in Poland further investigations into
Polish law involving the Danish and Polish Ministries of Foreign
Affairs proved necessary and an expert opinion was obtained which
required the submission of further observations also from the Polish
Ministry of Justice. The Commission considers that the delays caused
thereby cannot, on the basis of the facts submitted, be imputed to any
act or omission on the part of the Danish authorities, but are rather
the consequence of a system of mutual assistance in which the
requesting State is dependent on the co-operation of others.
In addition the Commission acknowledges that, in any auction sale
of foreign registered ships, time must be allowed for all the routine
work which the authorities carry out and which the documents only
reflect indirectly. In this respect the Commission also notes that the
Frederikshavn City Court at regular intervals monitored the
developments and kept the applicant informed thereof. Thus, in the
circumstances of the present case the Commission concludes that the
length of the proceedings in question did not exceed what may be
considered "reasonable" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy