FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27927/03
by Svatopluk PEČENKA
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 13 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 28 August 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Svatopluk Pečenka, is a Czech national who was born in 1930 and lives in Branky. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
i. Proceedings on the merits
In a judgment of 30 May 1995 the Vsetín District Court (okresní soud), following the applicant’s action of 5 September 1994, ordered an agricultural and commercial cooperative in liquidation to pay CZK 454,765.66 (EUR 18,149[1]) to the applicant. On 22 January 1996 the Ostrava Regional Court (krajský soud) upheld the first instance judgment which became final on 14 June 1996.
ii. Enforcement proceedings
On 17 October 1996 and 16 April 1997 respectively, the defendant paid CZK 2,957.34 (EUR 118) and CZK 3,979 (EUR 159) to the applicant who, on 17 June 1997, applied to the District Court for enforcement of the above judgment by way of the compulsory satisfaction of the claim in the amount of CZK 50,000 (EUR 1,995) from the defendant’s bank’s account. On 23 June 1997 the court ordered the enforcement. The order became final on 11 July 1997.
On 12 January 1998 the applicant informed the District Court that the bank had not yet paid him anything from the defendant’s account. By a letter of 20 January 1998 the bank informed him that on 25 July 1997 it had transferred CZK 7,220.40 (EUR 288) to his account.
On 25 January 1998 the enforcement proceedings terminated under Article 307 § 3 of the Code of Civil Procedure.
iii. Bankruptcy proceedings
On 30 June 1997 the Ostrava Regional Commercial Court (krajský obchodní soud) declared the defendant bankrupt.
On 12 February 1998 the applicant submitted his unsettled claims of CZK 447,545 CZK (EUR 17,861) against the bankrupt’s estate.
On 10 December 2004 the Regional Court adopted a resolution to distribute the bankrupt’s estate, the applicant being granted CZK 98,900 (EUR 3,947). On 30 December 2004 the applicant appealed to the Olomouc High Court (vrchní soud). It appears that the proceedings are still pending.
B. Relevant domestic law and practice
Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings
Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.
On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.
Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.
Code of Civil Procedure (Act no. 99/1963)
Under Article 305 of the Code of Civil Procedure the court shall notify the entitled party and the financial institution of the finality of the resolution whereby it has ordered the enforcement of a decision; it shall serve the notification on the financial institution by personal delivery.
Article 307 § 3 provides, inter alia, that if the receivable being recovered, and incidentals thereto, the debt has not been paid in full, the financial institution shall carry out the enforcement of the decision also on the day following the day on which such an amount of funds is credited to the account, which is required for the entitled party’s full satisfaction. If the above does not take place within six months of the service of the notification under Article 305, the financial institution shall carry out the enforcement from additionally credited funds also on the day that follows the expiry of the above period of time, or, as applicable shall notify the entitled person that no funds were in the liable party’s account. The financial institution shall debit the receivable to the account, and pay it to the entitled person, also if such funds do not suffice to satisfy the entitled party in full.
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 that his judgment debt had not been enforced in full.
2. He further complained about the length of the proceedings which, according to him, started in 1995 and are still pending.
THE LAW
1. Relying on Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention respectively, the applicant complained that his debt had remained unsatisfied and that the proceedings had lasted an unreasonably long time. The provisions in question provide:
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.”
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal.”
The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Czech law, as required by Article 35 § 1 of the Convention. They maintained that he could but had not claimed compensation for pecuniary damage pursuant to Act no. 82/1998 which, in this respect, had been applicable before the entry into force of Act no. 160/2006.
They further referred to the Court’s case-law dealing with issues relating to negative consequences on property rights caused by an unreasonable length of court proceedings (Varipati v. Greece, no. 849/97, 26 October 1999, § 32; Versini v. France, no. 40096/98, § 35, 10 July 2001).
The Government finally noted that the sum which had been awarded to the applicant by the Regional Commercial Court constituted a pro rata part of the realised assets of the defendant. Moreover, there was no causal nexus between the applicant’s purported damage and the length of the enforcement or bankruptcy proceedings. According to the Government, this constituted a separate claim which is still pending at the national level.
In respect of the length-of-proceedings complaint, the Government maintained that the applicant could have resorted to the compensatory remedy provided for by Act no. 82/1998 as amended and claim compensation for non-pecuniary damage on account of the excessive length of the proceedings.
The applicant disputed the Government’s arguments. He specified that he did not wish to use the compensatory remedy.
The Court leaves open the question whether the enforcement proceedings and bankruptcy proceedings should be regarded separately or in tandem, since the application is in any event inadmissible for the reasons set out below.
In respect of the applicant’s complaint under Article 1 of Protocol No. 1, the Court points out that in the case of Mascolo v. Italy (dec.), no. 68792/01, 16 October 2003, it found that the violation of the applicant’s right of property had been “linked specifically to the length of the proceedings, of which it [was] an indirect consequence”.
The Court has already examined the new compensatory remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of certain complaints about the length of judicial proceedings in the Czech Republic. In particular, it considered that the remedy was capable of providing adequate redress for any breach of the reasonable time requirement that has already occurred (see Vokurka v. Czech Republic, cited above, §§ 58-65). Furthermore, it approved the effectiveness of this remedy in respect of cases involving not only the complaints about the length of proceedings and/or the access to a court, but also relating to consequential complaints raised under Article 1 of Protocol No. 1 (see Petr v. Czech Republic (dec.), no. 16308/03, 26 February 2008).
Finally, in Bušková v. Czech Republic (dec.), no. 36854/03, 15 January 2008, the Court examined the remedy offered by Act no. 82/1998 in the version in force until 26 April 2006 and found that it constituted a remedy of which applicants must avail themselves in cases where they complained that the length of proceedings had caused them the financial losses.
In the light of these circumstances, the Court finds that, owing to his failure to make use of the procedures available under domestic law to seek reparation in respect of his complaints under both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant has not exhausted domestic remedies as he was required to do by Article 35 § 1 of the Convention.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention.
2. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
RegistrarPresident
[1] 1 EUR = 25.09 CZK
Full & Egal Universal Law Academy