STARVYS, s.r.o. v Slovakia - 38966/03 [2010] ECHR 2134 (30 November 2010)

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The European Court of Human Rights (Fourth Section), sitting on 30 November 2010 as a Chamber composed of:

Nicolas Bratza, President,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

The applicant entity, STARVYS, s.r.o., is a limited liability company which was established in 1997 under the laws of Slovakia and has its registered seat in Fiľakovo. The respondent Government were represented by their Agent, Ms A. Poláčková, who was succeeded in that function by Ms M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 October 1998 the Lučenec branch of the National Employment Authority (Národný úrad práce - “the NÚP”) ruled that the applicant company was liable to pay an amount of money by way of contribution to the unemployment fund. By a separate decision on the same day the NÚP imposed a financial penalty for the late payment of that contribution. These decisions could have been, but were not, challenged by an administrative appeal. They thus became final and binding, on 13 November 1998.

On 23 March 2001 the NÚP commissioned a judicial enforcement officer (súdny exekútor) to enforce the above decisions.

On 18 April 2001 the enforcement officer issued a notice of enforcement (upovedoenie o začatí exekúcie) by which he notified the applicant company officially that the enforcement proceedings had commenced and ordered that the applicant company “make no dispositions in respect of all its assets which were subject to the enforcement”. The notice also contained an assessment of the costs of the enforcement. It was calculated as a percentage of the total of the principal amount and of the penalty due.

The notice stated that the enforcement as such could be appealed against within fourteen days and the assessment of the costs of the enforcement within three days from the day on which the notice was served.

The enforcement officer sent the notice by registered mail to the private address of Mr B., who was the statutory representative and one of the owners of the applicant company. The postal delivery receipt (avis de réception) bears a handwritten date and signature indicating that the notice was received on 4 May 2001, which was a Friday.

On 9 May 2001 the applicant company appealed against the assessment of the costs of the enforcement. Without giving any details, it was claimed that the notice of enforcement had been served on the applicant on 6 May 2001, which was a Sunday. The applicant company argued that the costs of the enforcement should have been calculated on the basis of the principal amount of the debt only and that the late payment penalty should not have been included.

Later in May 2001 the applicant company lodged a further appeal, in which it raised various objections as to the enforcement as such. These objections concerned mainly matters of formality such as: the enforcement documents did not indicate the proper file number; the notice of enforcement was incorrectly phrased in that it wrongly referred to “all assets” of the applicant company; and that a copy of the plaintiff’s petition for enforcement had never been served on the applicant. Arguing that it was not avoiding payment but could not pay due to lack of funds, the applicant company proposed that the enforcement be discontinued. The applicant company again submitted, without any explanation, that the notice of enforcement had been served on it on 6 May 2001.

The enforcement officer transmitted the applicant company’s appeals to the District Court for judicial determination. In the accompanying letter he observed that, contrary to the applicant company’s contention, the notice of enforcement had been served on it on 4 May 2001 by delivery into the hands of B., as evidenced by his signature on the postal delivery receipt. The appeal of 9 May 2001 against the costs of the enforcement had thus been lodged outside the statutory three-day appeal period. The applicant company’s remaining objections were unfounded and constituted no valid ground to interrupt the enforcement.

On 12 July 2002 the applicant company submitted observations in reply to the accompanying letter from the enforcement officer. It raised similar objections as in its above-mentioned appeals and claimed that the service of the notice of enforcement had been ineffective on the ground that the “[notice] had not been in an envelope with a blue stripe”.

On 15 October 2002 the District Court declared the appeal against the costs of the enforcement inadmissible. It observed that the notice of enforcement had been served on the applicant company on 4 May 2001. The appeal against the costs was lodged on 9 May 2001, which was outside the applicable three-day time limit. The appeal against the enforcement as such was dismissed as unfounded. Enforcement could only be appealed against on grounds recognised by Article 50 § 1 of the Enforcement Code (Law no 233/1995 Coll., as amended) and the applicant company had not invoked any of these grounds. Formal as well as material requirements for the enforcement were met and the applicant company’s objections against the enforcement as such were considered to be purely tendentious. Pursuant to Article 202 § 2 of the Code of Civil Procedure (Law no 99/1963 Coll., as amended) the decision of 15 October 2002 was subject to no further appeal. Had the applicant’s appeal against the enforcement as such been allowed, the plaintiff could have challenged the decision on that appeal under Article 50 § 4 of the Enforcement Code.

On 15 October 2002, by a separate decision, the District Court ruled that the applicant company was to pay a court fee for its appeal against the notice of enforcement, in an amount which was calculated as a percentage of the total of the debt and the penalty.

On 13 November 2002 the enforcement officer issued an order for enforcement (exekučný príkaz) of the decisions of 29 October 1998. By this order he directed the applicant company’s bank to transfer the amounts and the costs of the enforcement. The order was not subject to appeal.

On 26 August 2003, on an appeal by the applicant company, the Banská Bystrica Regional Court (Krajský súd) upheld the decision of 15 October 2002 concerning the court fee.

On 8 February 2008 the enforcement officer returned to the District Court the decree authorising him to carry out the enforcement on the ground that the claims in question had been enforced.

On 16 August 2002 the applicant company lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. It completed the complaint by submissions of 22 December 2002 and 13 February 2003.

Represented by a lawyer, the applicant company complained that the enforcement proceedings had been conducted in an unfair and unlawful fashion; that they constituted an infringement of its property rights; and that the length of the proceedings was excessive. In particular the applicant company maintained that there were formal shortcomings in the enforcement documents; that the authorisation of the enforcement was contrary to law; that the notice of enforcement was only served on 6 May 2001; that it was incorrectly phrased, in that it ordered the applicant company not to make dispositions in respect of all its assets; that the costs of the enforcement had been miscalculated; and that the decision of 15 October 2002 was arbitrary and lacked adequate reasoning. As to the service of the notice of enforcement, the applicant company alleged in particular (in its submission of 22 December 2002) that it had in fact been served on Mr B. by the postman on 6 May 2001 and that on that day the postman had informed Mr B. that his attempt to deliver the notice to Mr B. in person on 4 May 2001 had been unsuccessful due to the latter’s absence.

As to the length of the proceedings, the applicant company complained in particular about the decision making in respect of its appeal against the notice of enforcement, and contended that there were continued delays even after this appeal had been determined.

The applicant company invited the Constitutional Court to quash the decision of 15 October 2002 and to award it 200,000 Slovakian korunas by way of just satisfaction in respect of non pecuniary damage.

On 15 May 2003 the Constitutional Court declared the complaint admissible in so far as it concerned the length of the proceedings and inadmissible as to the remainder. As to the applicant’s objections against the enforcement as such, it was noted that their examination was primarily the task of the District Court, which had proceeded in accordance with the applicable procedural rules and had based its decision on adequate reasoning. The Constitutional Court discerned no indication of any constitutionally relevant illegality, arbitrariness or unfairness in the District Court’s decision. In doing so the Constitutional Court did not address specifically the applicant company’s arguments as to the date of service of the notice of enforcement on it. It was finally noted that the applicant company still had the protection of the law in that it could raise an objection against the enforcement under Article 57 of the Enforcement Code if the enforced debt had already been paid or if the enforcement interfered with assets which were excluded from the enforcement. A copy of the Constitutional Court decision was served on the applicant company on 30 May 2003.

In a judgment (nález) of 10 September 2003 the Constitutional Court found that the District Court had violated the applicant company’s right to a hearing without “unjustified delay” under the Constitution and to a hearing within a reasonable time under the Convention. It restricted its examination of the proceedings to the appeal by the applicant company against the notice of enforcement only. The subject matter of the appeal was not particularly complex. No delay could be imputed to the applicant company. By contrast, the District Court had been completely inactive without any justification from 30 May 2001 to 15 October 2002. The Constitutional Court further held that the finding of a violation of the applicant company’s rights constituted of itself just satisfaction for the prejudice suffered. It was noted in particular that it was the applicant company which was resisting the enforcement of an adjudicated debt and that the applicant company had at all times the opportunity to bring the enforcement to an end by paying its debt. Furthermore, any possible uncertainty on the part of the applicant company had been dispelled by the District Court ruling of 15 October 2002.

(a) that the enforcement proceedings had been conducted in an unfair, unlawful and arbitrary fashion;

(b) that the decision of 15 October 2002 to declare its appeal in respect of the costs of the enforcement inadmissible was arbitrary and that neither the District Court nor the Constitutional Court had examined its arguments concerning the timeliness of that appeal; and

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time...”

(a) The Government argued that, in the enforcement proceedings, the applicant company had access to a tribunal compatible with the guarantees of Article 6 § 1 of the Convention and that the proceedings were “fair” within the meaning of that Article.

As to the fairness of the enforcement proceedings, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is limited to verifying whether the effects of such interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 I). This applies in particular to the interpretation by courts of procedural rules such as time-limits for submitting documents or lodging appeals. The rules on the procedure and time-limits for appeals are designed to ensure the proper administration of justice and, in particular, legal certainty (see Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 46, ECHR 2002 IX).

Furthermore, the “right to a court” is not absolute. It is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Levages Prestations Services v. France, judgment of 23 October 1996, Reports 1996-V, p.1543, § 40).

The Court observes that the applicant company contended that its appeal against the assessment of the costs of the enforcement in the notice of enforcement of 18 April 2001 had been incorrectly declared inadmissible, due to an error in counting the statutory three-day time-limit, that the appeal had consequently not been examined and that the domestic authorities had failed to address the applicant company’s arguments in that respect.

The Court further observes that the notice of enforcement was issued on 18 April 2001 and subsequently sent by registered mail to the private address of Mr B. where, according to the postal delivery receipt, it was received on 4 May 2001.

The Court also observes that at no stage before the domestic authorities or before the Court has the applicant company challenged the veracity of the postal delivery receipt and that, except for the submission to the Constitutional Court of 22 December 2002, the applicant company limited itself to claiming, without offering any details, that the date of delivery was 6 May 2001. In its submission to the Constitutional Court of 22 December 2002, again without any substantiation, the applicant company merely claimed that the notice of enforcement had in fact been served on Mr B. by the postman on 6 May 2001 and that on that day the postman had informed Mr B. that his attempt at delivering the notice to Mr B. in person on 4 May 2001 had been unsuccessful due to the latter’s absence.

The Court observes that it is improbable that the notice of enforcement was officially served on 6 May 2001, as that day was a Sunday, when mail is generally not delivered. In any event, the applicant company’s allegation to that effect is wholly unsubstantiated and, even if it were substantiated, it could not of itself be an adequate rebuttal of the evidence of the postal delivery receipt.

The Court further notes that the majority of the applicant company’s arguments concerned non-substantive and highly technical matters such as the stationery used, and that although it was open to the applicant company to challenge the enforced decisions of 29 October 1998 on any substantive grounds it did not do so.

In view of these considerations the domestic authorities’ conclusions, albeit succinct as to the belatedness of the applicant company’s appeal, cannot be considered flawed to the extent that they breached the applicant company’s right of access to a court (by way of contrast see, for example, Mikulová v. Slovakia, no. 64001/00, §§ 53-58, 6 December 2005, and Hornáček v. Slovakia, no. 65575/01, §§ 22-27, 6 December 2005).

In the light of all the material in its possession, and viewing the proceedings as a whole (see, for example, Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II), the Court finds that they do not disclose any appearance of a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention.

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.

(b) As regards the length of the enforcement proceedings, the Government argued that the applicant company had lost its “victim” status as a result of the Constitutional Court’s judgment of 10 September 2003.

The applicant company opposed that view, and contended in particular that the Constitutional Court had provided it with neither compensatory nor preventive redress.

The Court observes that when dealing with individual complaints under Article 127 of the Constitution the Constitutional Court has power to afford redress of both a compensatory and a preventive nature (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 IX) and that when deciding on individual complaints the scope of the Constitutional Court’s examination of the complaint is defined by and limited to the summary of the complaint, as formulated in a standardised and prescribed form (petit) by the plaintiff (see Obluk v. Slovakia, no. 69484/01, §§ 48 and 61, 20 June 2006; Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006; and, more recently, Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009).

In the present case the Constitutional Court ruled on 10 September 2003 that there had been a violation of the applicant’s right to a hearing without unjustified delay under the Constitution and to a hearing within a reasonable time under the Convention.

As to possible preventive redress, in particular an injunction to proceed with the enforcement proceedings without delay, it may be questioned whether such a development would have been in the best interest of the applicant company. It is in any event noted that the applicant company, which was represented by a lawyer, had not claimed such redress from the Constitutional Court. It has thus, in this respect, failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

As to the compensatory redress, in particular just satisfaction, the Court notes that, for the Constitutional Court, the finding of a violation of the applicant company’s rights itself constituted just satisfaction for the prejudice suffered. The Constitutional Court noted in particular that it was the applicant company which was resisting the enforcement and that it had at all times the opportunity to bring the enforcement to an end by paying its debt. Furthermore, any possible uncertainty on the part of the applicant company had been dispelled by the District Court’s ruling of 15 October 2002.

The Court observes that, at the time of the Constitutional Court’s judgment, the length of the proceedings under consideration was two years and some four months. It finds the reasons invoked by the Constitutional Court adequate. It follows that, in respect of the period examined by the Constitutional Court, the applicant company can no longer claim to be a victim under Article 34 of a violation of its right to a hearing within a reasonable time under Article 6 § 1 of the Convention.

As to the subsequent course of the enforcement proceedings, the Court reiterates that in certain situations applicants who have already sought redress before the competent domestic authority in respect of their complaint under Article 6 § 1 about excessive length of proceedings may be required to have recourse again to that remedy irrespective of whether or not they have filed an application under Article 34 of the Convention in the meantime. Such is the case, for example, when an applicant considers excessively long the period which had elapsed after the first finding of the competent domestic authority (see, mutatis mutandis, Musci v. Italy [GC], no. 64699/01, § 141, ECHR 2006 V (extracts) and, in particular, when the first decision of the domestic authority is consistent with Convention principles (see Sukobljević v. Croatia, no. 5129/03, § 45, 2 November 2006). The Court applied this principle in respect of Slovakia for the first time in its decision of 18 September 2007 in the case of Becová v. Slovakia (no. 23788/06).

As to the present case, the Court observes that, following the Constitutional Court’s judgment of 10 September 2003, it was open to the applicant company to seek redress in respect of any continuing delays in the enforcement proceedings, which eventually came to an end in 2008, before the Constitutional Court by means of a new and properly formulated complaint under Article 127 of the Constitution. The applicant company has not done so.

It follows that this part of the application must be rejected under Article 35 §§ 1, 3 and 4 of the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions invoked.

It follows that the remainder of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> STARVYS, s.r.o. v Slovakia - 38966/03 [2010] ECHR 2134 (30 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2134.html Cite as: [2010] ECHR 2134