British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
OLSBY v. SWEDEN - 36124/06 [2012] ECHR 1056 (21 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/1056.html
Cite as:
[2012] ECHR 1056
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF OLSBY v. SWEDEN
(Application
no. 36124/06)
JUDGMENT
STRASBOURG
21 June 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Olsby v.
Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel Jungwiert,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 29 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36124/06) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Swedish national, Mr Ralf Gunnar Olsby (“the
applicant”), on 23 August 2006.
The
applicant was represented by Mr P. Cronhult, a lawyer practising in
Stockholm. The Swedish Government (“the Government”) were
represented by their Agent, Ms I. Kalmerborn, of the Ministry for
Foreign Affairs.
The
applicant alleged that he had been deprived of effective access to
court in contravention of Article 6 § 1 of the Convention.
On
30 September 2008 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed Fifth Section.
The
Government submitted a unilateral declaration which did not offer
sufficient basis for finding that respect for human rights as defined
in Article 37 § 1 the Convention had been fulfilled (Prencipe
v. Monaco, no. 43376/06, §§ 62-63, 16 July 2009).
The Court was therefore required to continue the examination of the
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Sundbyberg.
By
letter dated 9 August 2005, the Enforcement Authority
(Kronofogdemyndigheten) informed the applicant that its
representative would come to his home on 17 August 2005 to attach
property to secure his tax debts amounting to SEK 979,503
(approximately EUR 110,000). It noted that he had previously been
informed about his debts but that, since he had not paid, an
attachment would be carried out. It is not known when the letter was
sent or when the applicant received it.
On
19 August 2005 the Enforcement Authority attached SEK 9,128
(approximately EUR 950) from a bank account belonging to the
applicant. A document called Proof of Attachment (bevis om
utmätning) was sent to the applicant confirming this and
advising him how to go about appealing against the decision and that
this had to be done within three weeks from the date that the
decision was served on him. The applicant, who was on holiday at the
time, did not receive the Proof of Attachment until he returned home
on 8 September 2005 and was formally served the decision.
In
a decision of 24 August 2005 the Enforcement Authority distributed
and paid the attached money to the creditor, in this case, the State
itself. The decision was open to appeal within three weeks from the
date of the decision.
On
20 September 2005 the applicant requested the Enforcement Authority
to rectify (besluta om rättelse) the decision
concerning attachment as he considered it to be incorrect. The
Enforcement Authority, in a decision of the same day, rejected the
applicant’s request for rectification on the ground that it had
been submitted too late. It further stated that it was not possible
to appeal against the decision in that part and that, as regarded its
other decisions, appeals were possible within the time-frames of
which the applicant had previously been notified.
On
22 September 2005 the applicant appealed against the attachment
decision to the District Court (tingsrätten) of
Stockholm. He mainly objected that the Enforcement Authority had not
sufficiently taken into account, and made deductions for, the need to
cover his basic living expenses.
In
a comment (yttrande) by the Enforcement Authority in
connection with the appeal, it stated that the appeal had been made
within the stated time-limit but that, since the decision as regards
the distribution and payment of the funds had gained legal force, the
applicant’s appeal could not be tried by the court.
On
19 October 2005 the District Court dismissed the appeal after first
having noted that the decision as regarded the payment of the
attached funds had gained legal force on 15 September 2005 and that
the applicant had appealed against the attachment decision on 22
September 2005. Thereafter the court, with reference to case-law from
the Supreme Court, stated that an appeal against an attachment
decision that was lodged after a decision regarding the payment of
the attached funds had gained legal force could not be considered by
the court.
The
applicant appealed against the decision to the Svea Court of Appeal
(hovrätten) requesting that it quash the lower court’s
decision. The applicant submitted that he had not been aware of the
attachment decision until 8 September 2005, when he was formally
served the Proof of Attachment, and that he had never been notified
of the fact that the Enforcement Authority, five days after the
attachment decision, had distributed and paid the attached money. In
his view, it should not have been permitted to distribute attached
money until the actual attachment decision had gained legal force.
On
16 December 2005 the Court of Appeal upheld the District Court’s
decision in full.
The
applicant appealed to the Supreme Court (Högsta domstolen)
which, on 28 February 2006, refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Enforcement proceedings
Domestic
provisions of relevance to the present case are found mainly in the
Enforcement Code (Utsökningsbalken; 1981:774) and the
Enforcement Ordinance (Utsökningsförordningen;
1981:981). The Enforcement Authority is responsible for enforcement
of judgments or other enforcement titles (exekutionstitel)
comprising an obligation to pay or some other obligation. Enforcement
cases are dealt with as public cases (allmänna mål),
as in the applicant’s case, or private cases (enskilda mål;
cf. Chapter 1, Article 6 of the Enforcement Code). Public cases are,
for example, imposition of fines, taxes, and other funds to which the
State is entitled.
According
to Chapter 3, Article 1, of the Enforcement Code, an enforcement
title may consist of a court judgment, but also of a decision of an
administrative authority that may be enforced in accordance with a
special regulation. Moreover, according to Article 23 of the same
Chapter, enforcement titles in public cases may be enforced before
they have gained legal force, if this has been specially prescribed.
In this respect, Chapter 2, Article 19 of the Enforcement Code
stipulates that a decision of the Enforcement Authority applies
immediately, and the enforcement continues even if the decision is
appealed against, unless otherwise prescribed by the Enforcement Code
or ordered by a court.
In
line with Chapter 4, Article 9 of the Enforcement Code, the
Enforcement Authority shall investigate the debtor’s employment
and income situation and whether he or she has attachable property.
Attachment shall take place as soon as possible after the necessary
documents have been received by the Enforcement Authority (Chapter 4,
Article 10). With some exceptions, notification shall be sent to the
debtor by post or given in an appropriate manner within such time
that the debtor can be expected to have sufficient time to protect
his or her rights (Chapter 4, Article 12). Chapter 6, Article 9 of
the Enforcement Ordinance stipulates that the debtor shall be
notified in writing and the notification is to be served, unless it
is known that the debtor cannot be found. Moreover, the Enforcement
Authority shall, as a rule, notify the interested parties about its
decision of distribution of funds (Chapter 13, Article 11 of the
Enforcement Ordinance). The debtor is generally not notified about
distribution of funds and payment to the creditors and the enclosure
to the attachment order does not contain any such information.
The
attachment of bank funds is safeguarded by a notification prohibiting
the bank from fulfilling its obligations to others than the
Enforcement Authority, and the bank is, as a rule, requested to pay
the attached funds to the Enforcement Authority (Chapter 6, Article 3
and Chapter 9, Articles 11-12 of the Enforcement Code).
Decisions
regarding attachment and all subsequent decisions, such as the
decision to distribute and pay the attached funds to the creditor,
are taken by the Enforcement Authority and may be appealed against to
the District Court, and further to the Court of Appeal and the
Supreme Court. The rules regarding appeal against decisions taken by
the Enforcement Authority are to be found in Chapter 18 of the
Enforcement Code. Article 7, paragraph 2, of that Chapter stipulates
that an attachment decision of the type in question shall be appealed
against by a party within three weeks from the date when the decision
was served on him. Article 7, paragraph 3, states that a decision on
distribution or payment of funds shall be appealed against within
three weeks of the decision. Article 14 of the same Chapter
stipulates that, in the event of the grant of an appeal against a
particular decision, a later decision in the case may also be
revoked, if this can be done, provided the decision is connected with
the former decision and that it had not gained legal force against
the appellant at the time when he appealed against the first
decision.
In
its judgment of 26 March 1990 (NJA 1990 p. 166), the Supreme Court
found that a prerequisite to trying an appeal against a decision
regarding attachment is that no subsequent decision regarding the
payment of the attached funds has gained legal force. In reaching its
decision, the Supreme Court had regard to Chapter 18, Section 14 of
the Enforcement Code as well as the preparatory works to that
provision (Government Bill 1980/81:8, p. 1239).
In
its comments on the above case, the National Tax Board
(Riksskatteverket, formerly in charge of tax administration
and enforcement service in Sweden), stated, inter alia, the
following:
“In public cases, the funds are accounted for
immediately, unless the official in charge of the matter has given
special instructions. In cases concerning attachment of bank funds,
it may take a while for the bank to account for the funds received.
Once received by the Enforcement Authority, the funds are accounted
for promptly to the creditors. Several weeks may elapse between the
attachment day and the accounting day. The appeals provisions in
Chapter 18, Section 7 of the Enforcement Code do not seem to be
coordinated in the sense that the funds are to be accounted for after
the appeal period has elapsed, and there is no support for such an
interpretation of the Enforcement Code.”
B. Compensation for violations of the Convention
Please
see Eriksson v. Sweden (no. 60437/08, §§ 27-36, 12
April 2012) or Eskilsson v. Sweden ([dec.], no. 14628/08, 24
January 2012) for a comprehensive summary of this issue.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that, even though he had appealed against the
decision within the prescribed time-limit, his case was dismissed by
the national courts and he was effectively refused access to court,
in contravention of Article 6 § 1 of the Convention, which in
relevant parts reads as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
...”
The
Government left it to the Court’s discretion whether the case
revealed a violation of Article 6 § 1 of the Convention.
A. Admissibility
The
Government submitted that the application was inadmissible on the
ground that the applicant had not exhausted domestic remedies. In
this respect, they referred in particular to the Swedish Supreme
Court’s judgments dated in 2005 and 2007 in which the court had
awarded individual compensation for pecuniary and non-pecuniary
damage concerning the violation of different Articles of the
Convention. In the Government’s opinion, these showed that
Swedish law now provided a remedy in the form of compensation for
both pecuniary and non-pecuniary damage in respect of any violation
of the Convention, including violations under Article 6 § 1 of
the Convention. Although the Government acknowledged that the legal
position on this matter under domestic law had been less clear prior
to the Supreme Court’s judgment in 2005, they submitted that
following this judgment the legal position must have been considered
sufficiently clear. Therefore, since the applicant lodged his
application with the Court on 23 August 2006, he should have been
aware of the Supreme Court judgment and that there was an effective
domestic remedy available to him which he should have been obliged to
exhaust prior to examination of the case by the Court.
In
any event, they noted that the limitation period in respect of
compensation claims against the State is ten years from the point in
time when the damage occurred (Section 2 of the Limitation Act,
preskriptionslagen, 1981:130), for which reason he could still
file a claim against the State in Sweden and should do so before the
Court examined his case.
The
applicant disagreed and maintained that he had exhausted all domestic
remedies required of him, noting in particular that his case had
already been before the Supreme Court and that it thus had had the
opportunity to set things right.
The
Court reiterates that the purpose of the requirement of exhaustion of
domestic remedies under Article 35 § 1 of the Convention is to
afford the Contracting States the opportunity to prevent or put right
the violations alleged against them before those allegations are
submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they
have had an opportunity to put matters right through their own legal
system. That rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in the domestic system in
respect of the alleged breach. In this way, it is an important aspect
of the principle that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights. Thus the complaint intended to be made subsequently to the
Court must first have been made – at least in substance –
to the appropriate domestic body, and in compliance with the formal
requirements and time-limits laid down in domestic law (see Selmouni
v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with
further references).
However,
the only remedies which Article 35 § 1 requires to be exhausted
are those that relate to the breach alleged and are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness: it falls to
the respondent State to establish that these conditions are satisfied
(see, among many other authorities, Mifsud v. France (dec.)
[GC], no. 57220/00, § 15, ECHR 2002 VIII; Leandro Da
Silva v. Luxembourg, no. 30273/07, §§
40 and 42, 11 February 2010; and McFarlane v. Ireland [GC],
no. 31333/06, § 107, 10 September 2010).
33. In
the present case, the applicant complained in substance about the
lack of effective access to court before the Court of Appeal and the
Supreme Court. He thus did what was required of him in order to
afford the national authorities the opportunity to remedy the
violation alleged by him.
The
Government claimed, however, that the applicant had failed to avail
himself of available remedies capable of affording him sufficient
redress in the form of compensation for the alleged violation. In
this respect, the Court notes that, of the final domestic judgments
and the decision referred to by the Government, only one was
delivered before the introduction of the present application, in a
case relating to length of criminal proceedings, whereas the present
case concerns effective access to court. In these circumstances, in
the Court’s view, it has not been shown that, at the time of
introduction of the present application before the Court on 23 August
2006, there existed a remedy in Sweden which was able to afford
redress in respect of the violation alleged by the applicant (see,
Fexler v. Sweden, no. 36801/06, §
43, 13 October 2011, and Eriksson,
cited above, § 45).
The
Government further claimed that, in any event, the applicant had
still had the opportunity to claim compensation before the Swedish
courts and should be obliged to use this remedy. The Court observes
that the proceedings about which the applicant is complaining were
terminated on 28 February 2006 and that the alleged violation of
effective access to court thus must be considered to have occurred at
this point in time. Consequently, in accordance with Section 2 of the
Limitation Act, the applicant has the possibility to claim
compensation from the Swedish State in relation to this alleged
damage until 28 February 2016.
The
Court would like to reiterate that the assessment of whether domestic
remedies have been exhausted is normally carried out with reference
to the date on which the application was lodged with it. However,
this rule is subject to exceptions, which may be justified by the
particular circumstances of each case (see, for example, Baumann
v. France, no. 33592/96, § 47, 22 May 2001, Brusco
v. Italy (dec.), no. 69789/01, ECHR 2001 IX, and Andrei
Georgiev v. Bulgaria, no. 61507/00, § 78, 26 July
2007).
In
the case at hand, the Court notes that the applicant lodged his
application with the Court already in August 2006 at a time when, as
established above, there was no effective remedy in Sweden for his
complaint. It further considers that there are no particular
circumstances in this case to justify departing from the general rule
that the assessment of whether domestic remedies have been exhausted
is carried out with reference to the date on which the application
was lodged with the Court. Consequently, the Court finds that, in the
instant case, it could not be required of the applicant to pursue the
remedy invoked by the Government. The Government’s objection as
to the exhaustion of domestic remedies must therefore be dismissed.
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The Parties’ submissions
The
applicant maintained that he had not been granted effective access to
court. In his view, it was unreasonable that an individual who
followed the legal provisions about time-limits to submit an appeal
as well as the appeal instructions in the Enforcement Authority’s
decision could nevertheless find himself precluded from having his
appeal tried by a court.
He
noted that, in general, the debtor was served an attachment order
through ordinary mail. However, decisions about the distribution or
payments of attached funds were generally not notified to, and
certainly not served on, the debtor. Still, such decisions should be
appealed against within three weeks from the date of the decision.
According to the applicant, it was not uncommon for the attachment
order, the attachment itself and the distribution and payment of the
attached funds to be executed almost simultaneously.
Having
regard to the Supreme Court’s judgment in 1990 (see above §
21), that an appeal against an attachment order could only be tried
by a court if no subsequent decision regarding payment of the
attached funds had gained legal force, and given that only the
attachment order was served on the debtor, the time-limit for appeal
of the distribution or payment of the attached funds was likely to
expire before the time-limit for appeal of the attachment order. The
appeal instructions given with the attachment order were therefore
misleading as the actual time for appeal was shorter than the
stipulated three weeks from when the attachment order was served. The
applicant submitted that, in fact, the actual time-limit for appeal
could already have expired before the debtor was served, or even
informed of, the attachment order.
The
applicant argued that this was a lacuna in the right to access to
court and that the Government must have been aware of it since the
Supreme Court judgment of 1990. Consequently, he insisted that he had
been deprived of effective access to court in violation of Article 6
§ 1 of the Convention.
The
Government admitted that the attachment order concerning the
applicant’s funds had not been tried by a court and that it was
not due to a failure by the applicant to comply with the procedural
rules but a result of the Supreme Court’s 1990 judgment which,
in turn, had been based mainly on Chapter 18, Article 14 of the
Enforcement Code. However, they noted that the right to access to
court was not an absolute right but could be subjected to limitations
although the limitations applied should not restrict or reduce the
access left to the individual in such a way or to such an extent that
the very essence of the right was impaired.
In
the present case, the Government submitted that it was clear that the
domestic courts’ decisions had had a legal basis in Swedish law
and that they did not disclose any arbitrariness. They did not
dispute, however, that the applicant had received instructions
stating that an appeal against the attachment order had to be made
within three weeks from the date when the decision had been served on
him and that by lodging his appeal on 22 September 2005 he had
complied with these instructions as well as with the relevant
provision in the Enforcement Code. In the light of this, the
Government acknowledged that some doubt could arise as to whether the
relevant appeals provisions could be considered sufficiently clear or
sufficiently attended by safeguards to prevent misunderstanding
regarding procedures for making use of the available remedies, as
required by the Court’s case-law (such as F.E. v. France,
30 October 1998, § 47, Reports of Judgments and Decisions
1998 VIII).
In
the Government’s view, the limitation of the applicant’s
access to court had pursued legitimate aims, namely the proper
functioning of the legal system as well as legal certainty. They
argued that attachment of property was a coercive measure aiming at
executing an enforcement title and was carried out in the interest of
the creditors. The proper functioning of the legal system, as well as
the financial and economic system in general, required not only that
creditors had access to the judiciary to obtain an enforcement title,
but also that they were offered the possibility of enforcing their
rights speedily and efficiently, thereby preventing the debtor from
withholding property. Moreover, the limitation to appeal once a
decision on the distribution and payment of attached funds had gained
legal force was intended to create certainty and predictability as to
the legal effects of that latter decision and for the creditors
involved.
Lastly,
the Government reiterated that States were afforded a certain margin
of appreciation in balancing the means employed and aim sought to be
achieved. In this respect, they stressed that an attachment order
could only concern debts that had already been established by a court
or a public authority, such as in the present case, the Tax
Authority. Thus, in principle, a defendant’s objections to an
attachment order could not bear upon the correctness of the
enforcement title as such but were limited to issues which could
constitute impediments to the attachment, for example as in the
applicant’s case, that the Enforcement Authority had not
sufficiently considered what the debtor needed for his basic living
expenses. Here the Government considered that there was nothing to
indicate that there had been any impediments to the attachment of the
applicant’s funds.
Consequently,
the Government held that there were several arguments in favour of
the conclusion that the limitation of the applicant’s right of
access to court had been proportionate but that it could be
questioned whether the limitation had been clear enough. They
therefore left it to the Court to decide whether there had been a
breach of Article 6 § 1 of the Convention in the present case.
2. The Court’s assessment
The
Court reiterates that Article 6 § 1 of the Convention secures to
everyone the right to have any claim relating to his or her civil
rights and obligations brought before a court or tribunal. In this
way it embodies the “right to a court”, of which the
right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect (see Golder v. the
United Kingdom, 21 February 1975, §§ 35-36, Series A
no. 18).
However,
the Court observes that the right of access to a court is not
absolute and may be subject to legitimate restrictions, particularly
regarding the conditions of admissibility of an appeal. Where an
individual’s access is limited either by operation of law or in
fact, the restriction will not be incompatible with Article 6 where
the limitation does not impair the very essence of the right and
where it pursues a legitimate aim, and there is a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Ashingdane v. the United Kingdom,
judgment of 28 May 1985, § 57, Series A no. 93 and F.E.,
cited above, § 44).
Moreover,
the Court notes that the rules governing the formal steps to be taken
and the time-limits to be complied with in lodging an appeal are
aimed at ensuring the proper administration of justice and compliance
with the principle of legal certainty for all parties involved in a
dispute. These are, as noted by the Government, legitimate aims for
regulating the access to court. However, these aims are directed not
only to protect creditors but also to protect the debtors. Thus,
while the Court agrees with the Government that creditors have an
interest to enforce their rights speedily and efficiently, it also
considers that the debtors have to be able to protect correctly their
interests. In principle, this does not rule out that once a decision
on the distribution and payment of attached funds has gained legal
force, certain limitations on appeal of the actual attachment
decision may be imposed in order to create certainty and
predictability as to the legal effects of the decisions.
A
distinction has to be made though, between imposing certain
limitations and effectively hindering an appeal on the merits. In
this respect, the Court observes that for the right of access to
court to be effective, an individual must have a clear, practical
opportunity to challenge an act that is an interference with his
rights (see F.E., cited above, § 46). In the Court’s
view, this includes the need for legal certainty for the debtor to be
able to trust that the time-limit for appeal given in the law and
expressly mentioned in a decision is valid and not open to
exceptions, unless those exceptions are explicitly mentioned.
Otherwise, trust in the legal system and instructions given by the
authorities would be eroded.
Furthermore, as the Court has established in earlier
cases, the parties to a dispute must be able to avail themselves of
the right to bring an action or to lodge an appeal from the moment
they can effectively apprise themselves of court decisions imposing a
burden on them or which may infringe their legitimate rights or
interests (see for example Miragall Escolano and Others v. Spain,
nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98,
41446/98, 41484/98, 41487/98 and 41509/98, §§ 33 and
37, ECHR 2000 I).
Turning
to the case at hand, the Court notes from the outset that the
applicant’s formal right to access to court was guaranteed in
law, namely through Chapter 18, Article 7, paragraph 2, of the
Enforcement Code which stated that he had three weeks to appeal
against the attachment order from the date when the decision was
served on him. Moreover, it is undisputed that the applicant lodged
his appeal to the District Court within the time limit
prescribed.
However,
in the present case, this right was circumvented by the rapid payment
of the attached funds to the creditor, namely, the State. Thus, the
attachment took place on 19 August 2005 and the attached funds were
paid to the creditor on 24 August 2005 while the applicant was only
served the decision of the attachment order on 8 September 2005, when
he returned from vacation. Consequently, the decision of distribution
and payment of funds gained legal force on 15 September 2005, whereas
the time-limit for appeal against the attachment order expired on 29
September 2005. Since the Supreme Court’s 1990 judgment, with
reference to Chapter 18, Article 14, of the Enforcement Code,
had established that an appeal against an attachment decision that
was lodged after a decision regarding the payment of the attached
funds had gained legal force could not be considered by the court,
the applicant was in reality blocked from having his appeal tried,
despite having followed the instructions about appeal in the
attachment decision. Moreover, since he had not been informed about
the distribution and payment of the attached funds, he was not aware
of this limitation. To the Court, this cannot be considered
satisfactory and it is of the opinion that the national system lacked
safeguards to avoid such a situation.
The
Court further notes that, in accordance with the Enforcement Code
(see above § 20), the attachment of bank funds is safeguarded by
a notification prohibiting the bank from fulfilling its obligations
to others than the Enforcement Authority and the bank is, as a rule,
requested to pay the attached funds to the Enforcement Authority. In
these circumstances, the Court considers that the creditor’s
interest must be considered to have been sufficiently secured once
the attachment was carried out since the applicant could then no
longer administer his funds. It must then have been for the applicant
also to be able to protect his interests.
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant did not have a clear practical
opportunity to challenge the attachment order and that the very
essence of his right to effective access to court was thereby
impaired.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed EUR 10,000 in respect of non-pecuniary damage.
The
Government argued that the finding of a violation would in itself
constitute sufficient just satisfaction. In any event, they regarded
the sum claimed as excessive in comparison with sums awarded by the
Court in similar cases and considered that any compensation should
not exceed EUR 1,000.
The
Court considers that the applicant must have suffered some
non-pecuniary damage which cannot be compensated solely by the
finding of the violation of Article 6 § 1. Ruling on an
equitable basis, the Court awards the applicant EUR 1,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant did not claim compensation for costs and expenses incurred
before the Court. Accordingly, the Court considers that there is no
call to award him any sum on that account.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amount, to be converted into the currency of the respondent State at
the rate applicable at the date of settlement, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
