SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45126/98
by Pavol LÓŠKA
against Slovakia
The European Court of Human Rights (Second Section), sitting on 6 September 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 12 August 1998 and registered on 21 December 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the information submitted by the respondent Government on a request by the rapporteur (Rule 49 § 2 (a) of the Rules of Court) and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Slovak national, born in 1937 and living in Michalovce.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 September 1993 and on 15 March 1994 respectively the Regional Social Security Office in Michalovce (Regionálna národná poisťovňa) issued two decisions ordering the applicant to pay a total of 12,512 Slovak korunas. The sum included social insurance fees which the applicant had failed to pay and administrative fines. The applicant did not challenge the decisions which became final on 18 October 1993 and on 6 April 1994 respectively.
On 24 May 1994 the Regional Social Security Office in Michalovce invited the applicant to pay the sum failing which enforcement proceedings would be brought.
On 9 June 1994 the applicant requested the Michalovce District Court (Okresný súd) to assist the parties in settling the case. He informed the court that he was trying to recover debts in two separate sets of proceedings and that he would pay the sum owed after the recovery of the debts. No friendly settlement was reached.
On 14 October 1994 the Regional Social Security Office in Michalovce brought enforcement proceedings against the applicant.
On 18 November 1994 the Michalovce District Court ordered the enforcement of the sum due by selling the applicant’s movable property. The decision was served on the applicant on 23 September 1996. On 7 October 1996 the applicant appealed.
The Government maintain that on 1 August 1996, the Michalovce branch office of the Social Security Administration (Sociálna poisťovňa, one of the successors to Národná poisťovňa) requested the Michalovce District Court that the sum due be enforced by an enforcement officer pursuant to Act No. 233/1995 (see „Relevant domestic law“ below). They submitted a copy of a letter dated 7 August 1996 in which a judge informed the Social Security Administration that the District Court agreed with the request as required by Section 232 of Act No. 233/1995. As a result, the original enforcement proceedings covered by the District Court’s order of 18 November 1994 were dropped.
This is contested by the applicant who alleges that on 7 August 1996 the Michalovce District Court delivered decision E 1874/94-9 by which it discontinued the enforcement proceedings. The applicant submits that he saw the decision twice when he consulted the case file and that the District Court refused to provide him with a copy thereof. The applicant considers the District Court’s letter of 7 August 1996 submitted by the Government to be forged.
On 6 February 1997 the Michalovce branch office of the Social Security Administration requested an enforcement officer to enforce the applicant’s debt pursuant to Act No. 233/1995.
On 10 March 1997 the Michalovce District Court authorised the enforcement officer to carry out the enforcement.
By a letter dated 24 March 1997 and served on 12 June 1997 the enforcement officer informed the applicant that the sum due would be enforced by selling his movable property which the applicant was prohibited from alienating.
On 13 and 26 June 1997 the applicant challenged the enforcement. He maintained that the District Court had disregarded his proposal to settle the case, that the order of the Regional Social Security Office in Michalovce of 28 September 1993 had become statute-barred and that it was not clear which of the successors of the Regional Social Security Office was entitled to recover his debt. The applicant also challenged the fees of the enforcement proceedings. He alleged a violation of his right to a fair and public hearing within a reasonable time and invoked the proceedings leading to the District Court’s decision of 18 November 1994 and its delayed service. The applicant also complained that his property rights were restricted in that he was not allowed to alienate his property while the enforcement proceedings were pending.
On 13 February 1998 the Michalovce branch office of the Social Security Administration submitted its observations on the applicant’s objections to the enforcement.
On 28 September 1998 the Michalovce District Court dismissed the applicant’s objections as being manifestly ill-founded. It found no reasons that would prevent the enforcement from being carried out. The District Court decided in camera and it did not address the applicant’s argument that the claim in question had lapsed.
By a letter dated 22 January 1999 the enforcement officer informed the applicant that the sum due would be enforced by instalments deductible from his old-age pension. The Social Security Administration started attaching sums from the applicant’s pension as from February 1999.
On 13 April 1999 the enforcement officer ordered the enforcement of the sum in question by instalments to be deduced from the applicant’s pension.
By a decision delivered on 31 January 2000 the Michalovce District Court adjourned the enforcement until 31 January 2000. The adjournment was granted at the applicant’s request filed on 22 October 1998. The District Court noted that the applicant’s flat had been broken into in October 1998 and that his movable property liable to be sold in the context of the enforcement had been stolen.
On 25 October 2000 the Michalovce District Court dismissed the applicant’s request that the enforcement be discontinued. It dismissed the applicant’s arguments that the Social Security Administration lacked locus standi in the enforcement proceedings and that the claims in question had become statute barred. On 21 and 30 November 2000 the applicant appealed.
On 12 December 2000 the Constitutional Court (Ústavný súd) dismissed the applicant’s constitutional petition on the ground that it had not been submitted in accordance with the formal requirements.
B. Relevant domestic law
Pursuant to Section 325 (1) of the Code of Civil Procedure, the decision on enforcement by selling movable property is to be served on the person concerned at the moment when the enforcement is to be carried out. The purpose of this provision is to prevent such persons from hiding or alienating their property prior to the enforcement.
Act No. 233/1995 of 14 September 1995 on Enforcement Officers and Enforcement (Zákon o súdnych exekútoroch a exekučnej činnosti a o zmene a doplnení ďalších zákonov) entered into force on 1 December 1995.
Section 47 of Act No. 233/1995 provides that an enforcement officer shall notify the parties of enforcement and its costs and invite the debtor to comply with the relevant decision or, as the case may be, to file objections to the enforcement within fourteen days. The enforcement officer shall further prohibit the debtor from alienating property liable to enforcement.
Pursuant to Section 50 (1) of Act No. 233/1995, a debtor may file objections to enforcement within fourteen days from the notification when, inter alia, the claim to be enforced ceased to exist.
Section 52 (1) provides that after the expiry of the time-limit for lodging objections to enforcement or after a court’s decision dismissing such objections has been served on the enforcement officer the latter shall issue an enforcement order on the basis of which the enforcement is to be carried out.
Under Section 232 of Act No. 233/1995, in cases when enforcement decisions delivered prior to 1 December 1995 were not carried out, the persons concerned may request that the enforcement be carried out in accordance with Act No. 233/1995. Such a request has to be approved by a court.
COMPLAINTS
1. The applicant complains that the Michalovce District Court decided on his objections to the enforcement in camera, that it failed to give sufficient reasons for its decision of 28 September 1998 and that the enforcement proceedings lasted unreasonably long. He alleges a violation of Article 6 § 1 of the Convention.
2. The applicant further complains that the Michalovce District Court failed to provide him with a copy of the decision E 1897/94-9 of 7 August 1996 and that this decision was subsequently replaced by a letter by which the District Court consented to the enforcement to be carried out pursuant to Act No. 233/1995. He alleges a violation of Articles 6 § 1 and 10 of the Convention.
3. The applicant complains under Article 6 § 1 that his right to a fair hearing was violated as a result of the delayed service of the Michalovce District Court’s decision of 18 November 1994 concerning the enforcement of the debt by selling his movable property.
4. Under Article 1 of Protocol No. 1 the applicant complains about the order not to alienate his property pending the enforcement and also that the authorities started deducing sums from his old-age pension prior to the delivery of the enforcement order of 13 April 1999.
5. The applicant alleges a violation of Article 8 of the Convention in that under the relevant provisions of Act No. 233/1995 the enforcement officer had the possibility of secretly gathering information about his personal situation and property during the period between 24 March 1997 and 12 June 1997.
THE LAW
1. The applicant complains that the Michalovce District Court decided on his objections to the enforcement in camera, that it failed to give reasons for its decision of 28 September 1998 and that the enforcement proceedings lasted unreasonably long. He alleges a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public ... hearing within a reasonable time ... by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant complains that his right to a fair hearing and to freedom of expression was violated in that the Michalovce District Court failed to provide him with a copy of the decision E 1897/94-9 of 7 August 1996 and that this decision was subsequently replaced by a letter of the same date by which the District Court consented to the enforcement to be carried out pursuant to Act No. 233/1995. He alleges a violation of Articles 6 § 1 and 10 of the Convention.
a) The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant’s complaint about a violation of his right under Article 6 § 1 of the Convention in this respect and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
b) The Court has also examined this complaint under Article 10 of the Convention but finds that it does not disclose any appearance of a violation of this Article.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complains under Article 6 § 1 about a violation of his right to a fair hearing as a result of the delayed service of the Michalovce District Court’s decision of 18 November 1994.
The Court notes that by this decision which was served on
23 September 1996 the District Court ordered the enforcement of the applicant’s debt by selling his movable property. The enforcement under this order was dropped as subsequently the District Court agreed to the enforcement to be carried out pursuant to Act No. 233/1995. In proceedings under Act No. 233/1995 it was decided that the sum would be enforced by instalments to be deduced from the applicant’s pension.
In these circumstances, the Court considers that the applicant cannot claim to be a victim of a violation of his right to a fair hearing as a result of the delayed service of the decision in question.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant complains that his property rights were violated in the course of the enforcement proceedings. He alleges a violation of Article 1 of Protocol No. 1 which 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 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) To the extent that the applicant complains that he was not allowed to alienate his property pending the enforcement, the Court notes that the interference complained of had a legal basis, namely Section 47 of Act No. 233/1995. Furthermore, the Court considers that the interference was in the public interest of ensuring compliance with final decisions delivered by public authorities and that it was not disproportionate.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b) As to the applicant’s complaint that his property rights were violated in that the authorities concerned started enforcing the relevant decisions by deducing sums from his pension prior to the delivery of the enforcement order on 13 April 1999, the Court notes that the applicant did not seek redress before a court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
5. The applicant alleges a violation of Article 8 of the Convention in that the enforcement officer had the possibility of secretly gathering information about his personal situation and property during the period between 24 March 1997 and 12 June 1997.
The Court notes that the application was introduced on 12 August 1998 which is more than six months after the alleged violation of the applicant’s rights had occurred.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints that his right to a fair and public hearing within a reasonable time was violated (see points 1 and 2 (a) above);
Declares inadmissible the remainder of the application.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy