Communicated on 2 December 2014
FIFTH SECTION
Application no. 31371/12
Zoran VASKRSIĆ
against Slovenia
lodged on 22 May 2012
STATEMENT OF FACTS
The applicant, Mr Zoran Vaskrsić, is a Slovenian national, who was born in 1980 and lives in Kresnice. He is represented before the Court by Odvetniška družba Čeferin, a law firm practising in Grosuplje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an undefined date the public water supply company J. instituted enforcement proceedings against the applicant due to his failure to pay the monthly contribution.
On 2 June 2009 the Ljubljana District Court issued a writ of execution against the applicant in the amount of 124.38 euros (EUR) and granted enforcement into his movable property.
On 9 June 2010 the company J. requested the Litija Local Court to extend the enforcement to the applicant’s immovable property, namely his house.
On 17 June 2010 the Litija Local Court granted the company J.’s request and issued a writ of execution allowing enforcement by the sale of the applicant’s house.
On 7 October 2010 the first auction sale of the applicant’s house took place without the house being sold.
On 18 October 2010 and 25 October 2010 the company J. requested the Litija Local Court to extend the enforcement to further means of enforcement, namely on the attachment of the applicant’s bank accounts and the attachment of his salary respectively.
On 18 November 2010 the Litija Local Court held the second public auction, on which the house was sold to M. L. for EUR 70,000 - that was 50% of its estimated market value.
On 19 November 2010 the Litija Local Court issued a decree for the transfer of title in respect of the bidder M.L. which had offered the most favourable bid.
On 22 November 2010 the Litija Local Court granted the company J.’s request and extended the enforcement to the attachment of the applicant’s bank account and salary.
On 24 November 2010 the applicant paid the amount claimed and lodged an appeal against the decree for the transfer of title. He claimed, inter alia, that he had not been aware of the public auction and that he had meanwhile already paid his debt. He further submitted that he had had financial difficulties throughout that year since his father had died and his mother had lost her job, and therefore he also needed to support her, in addition to his, also unemployed, wife and his two children. He stressed that in the event that the decree would not be annulled his family would risk becoming homeless.
Due to the applicant’s payment of the debt, the company J. on the same day requested the court to stay the enforcement proceedings.
On 25 November 2010 the Litija Local Court stayed the enforcement.
On 29 December 2010 the Ljubljana Higher Court dismissed the applicant’s appeal. The the decree for the transfer of title it issued in favour of M.L. thus became final. The court held that the applicant had been properly served the summons to the public auction and that he had failed to give any reasons as to why he had not appeared at the auction. It further dismissed his allegations that he had not been able to pay the amount claimed. It also noted that the service had been deemed to be made by leaving the writings in the applicant’s mailbox after the mailmen had not been able to serve them on the applicant in person. Finally the court stressed that according to the established case-law of the Constitutional Court, the subsequent payment of the debt could not be a ground to annul the decree for the transfer of title. It stressed that such conclusion was regardless of the amount enforced in the proceedings.
On 12 January 2011 the Litija Local Court decided to transfer the property sold at the public auction to M.L. and ordered the change of ownership in the Land Register. It further ordered the applicant to vacate the house within thirty days upon receipt of the decision.
On 21 January 2011 the applicant lodged an appeal against the decision of 12 January and a request to annul the finality of the decree for the transfer of title. He argued inter alia that as the enforcement had been stayed on 25 November 2010, the court should also have, in accordance with Section 76 of the Enforcement and Securing of Civil Claims Act (“the Enforcement Act”), annulled the enforcement acts undertaken by then, hence also the decree for the transfer of title. He stressed that at the relevant time the buyer had not yet acquired ownership over the property and therefore the annulment of the decree would not have affected the buyer’s already acquired rights.
On 25 May 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that according to Section 192 of the Enforcement Act there were only two conditions to be fulfilled to allow the transfer of property to the buyer – the finality of the decree for the transfer of title and the payment of the purchase amount. Therefore the law had been correctly applied.
On 17 June 2011 the Litija Local Court held a hearing on the distribution of the purchase money and decided to distribute the amount as follows: the amounts of EUR 145.96 and EUR 5,895.22 to the applicant’s creditor A.A., who had joined with his claims the same enforcement proceedings after the house had already been sold; EUR 1,372.55 to the Tax Office for taxes due for the sale of the house, and EUR 58,887.67 to the bank S. on account of the outstanding mortgage on the house. The remainder of the purchase money in the amount of EUR 3,698.60 was transferred to the applicant.
On 11 July 2011 the Litija Local Court, upon a request by M.L., issued a writ of execution against the applicant ordering the eviction of the applicant family from the house. The applicant lodged an objection.
On 28 July 2011 the applicant lodged a constitutional appeal against the decisions of 25 May 2011 and 12 January 2011. He argued that the sale of his house on amount of a debt of EUR 124.38 amounted to a disproportionate interference with his property rights.
On 29 September 2011 the Litija Local Court dismissed the applicant’s objection against the writ of execution of 11 July 2011.
On 5 March 2012 the Constitutional Court dismissed the applicant’s constitutional appeal by referring to Section 55.b of the Constitutional Court Act (see below, under “Relevant domestic law and practice”).
On 16 March 2012 the applicant and his family were evicted from their house.
B. Relevant domestic law and practice
1. Enforcement and Securing of Civil Claims Act
The relevant provisions of the Enforcement and Securing of Civil Claims Act in force at the relevant time read, in so far as relevant, as follows.
Section 30
“Only the following means of enforcement can be allowed by the court: sale of movable goods, sale of immovable property, transferral of a monetary claim, realisation of property or material rights and immaterialised securities, sale of a shareholder’ share and transferral of funds with the organisations authorised for the facilitation of the money movements.”
Section 34
“The court allows the enforcement for the payment of a monetary claim by the means and on the objects which are indicated in the motion for enforcement.
Upon a request by the debtor the court can limit the allowed enforcement to only some of the means or objects of enforcement if these suffice for the payment of the claim. ...
The court can ... upon a motion by the creditor allow enforcement by further means and on further objects as by those already allowed.
Upon a motion by the debtor the court can determine another means of enforcement than the ones suggested by the creditor if these means would suffice for the payment of the claim. ... “
Section 76
„...
In case that the court stays the enforcement, it also, unless otherwise provided by this Act, annuls all the enforcement acts undertaken by then, unless this would affect the acquired rights of the third parties.”
Section 183
“Immovable property is to be sold at a public auction.
...”
Section 188
“At the first public auction the immovable property should not be sold below its estimated value.
If it was not possible to sell the property at the first public auction, the court schedules a second public auction at which the property can be sold below its estimated value, however not below the half of this value.
...”
Section 189
“...
Upon the conclusion of the public auction, the court determines the bidder with the highest price and declares that the property is allocated to him.
...
The court issues a decree for the transfer of title which is published on the court’s notice board and served on all the parties who were served the decision about the sale and to all those who participated at the auction.
...”
Section 192
“Upon the finality of the decree for the transfer of title and the payment of the purchase price, the court issues a decision on the transfer of the property to the buyer. After the decision becomes final, the transfer of the ownership shall be inscribed into the land register...”
Section 193
“An annulment or a modification of the writ of execution, after the decision on the transfer of the property to the buyer has become final, have no impact on the rights acquired by the buyer under Section 192 of this Act.”
2. The Constitutional Court’s decisions on the legal effects of the decree for the transfer of title prior to its finality
In its decisions nos. Up-35/98 and 77/04-43 of 2 April 1998 and of 11 October 2006 respectively, the Constitutional Court examined constitutional complaints concerning the annulment of the decrees for the transfer of title due to the stay of the enforcement proceedings and the annulment of the enforcement acts undertaken prior to the stay of the proceedings. It held that even though the decree for the transfer of title did not give the buyer a title over the property, it however did acknowledge the buyer’s protected expectations to acquire a property right. Therefore, acquisition of property could only be prevented by the buyer’s incapacity to pay the purchase price and not by any other subsequently arising circumstances, such as the withdrawal of the motion for enforcement and/or the annulment of the undertaken enforcement acts.
3. The Constitutional Court Act
In so far as relevant, Section 55b of the Constitutional Court Act, reads as follows:
“(1) A constitutional appeal shall be rejected:
- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;
- if the complainant does not have a legal interest in a decision on the constitutional appeal;
- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;
- if it was not lodged in due time;
...
(2) A constitutional appeal shall be accepted for consideration:
- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or
- if it concerns an important constitutional question which goes beyond the importance of the actual case.
...”
4. The study prepared by the Supreme Court
Due to the public attention received by the applicant’s case, the Supreme Court in March 2012 prepared a preliminary study on the cases where enforcement into immovable property was granted and carried out for low sum monetary claims. It established that between 1 January 2008 and 1 March 2012 there had been altogether 32 cases where immovable property had been sold at a public auction in order to enforce a monetary claim in amounts lower than EUR 1,000.
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the sale of his house at a public auction in order to enforce a claim in the amount of only EUR 124.38 amounted to a disproportionate interference with his right to a peaceful enjoyment of his possessions.
2. The applicant also complains under Article 13 that he did not have at his disposal an effective legal remedy in respect of the above complaint.
QUESTIONS TO THE PARTIES
1. Was the sale of the applicant’s house a measure necessary to control the use of property in accordance with the general interest within the meaning of Article 1 of Protocol No. 1 to the Convention?
2. In particular, having regard to the amount of his debt, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
3. Was the applicant afforded sufficient procedural protection in the ambit of the enforcement proceedings (see Rousk v. Sweden, no. 27183/04, § 117, 25 July 2013)?
4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
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