Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27880/95

by Bogdan JASINSKI

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 January 1995

by Bogdan Jasinski against Denmark and registered on 18 July 1995 under

file No. 27880/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish citizen, born in 1942. He is a

fisherman, director and sole shareholder in the limited company

OTECH Pty. Ltd. He resides in Ustka, Poland.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 28 September 1990 OTECH Pty. Ltd. was founded as a family

business involving the applicant, his wife and his son. The applicant

subsequently took over all shares of the company. On 14 January 1991

OTECH Pty. Ltd., represented by the applicant, purchased a fishing

vessel in Denmark from a private person. The price was fixed at

1,500,000 DKK and was paid partly in cash and partly through a

mortgage-agreement with first priority in the vessel. The deal was

finalised on 31 January 1991 following which the applicant commenced

his trade as a fisherman. The vessel was entered into the Polish Ships'

Registry in Gdansk on 10 February 1992.

Subsequently, the vendor transferred the mortgage-agreement to

a bank which, in 1993, requested the Nexø Bailiff's Court (Nexø

fogedret) to levy execution on the vessel as the mortgage-agreement

allegedly had not been honoured by the purchaser.

On 10 June 1993 the Nexø Bailiff's Court held a meeting on board

the vessel which at the time moored at Nexø. Having heard the applicant

the Court decided to levy execution on the vessel and to deprive the

applicant in his capacity as director of OTECH Pty. Ltd. of the right

to dispose of the vessel. The applicant and the rest of the crew were

ordered to leave the vessel immediately.

The applicant then obtained certain assistance through the Polish

Consulate and an appeal was lodged against the Bailiff Court's decision

to the High Court of Eastern Denmark (Østre Landsret) which upheld it

on 4 August 1993 after an examination of the written observations

submitted. On 26 October 1993 the applicant applied for leave to appeal

to the Supreme Court (Højesteret). This was refused on 29 November

1993. Subsequent requests for leave to appeal, most recently on

11 January 1995, remained unsuccessful.

In the meantime the vessel was moved from Nexø to Frederikshavn

where the bank, i.e. the creditor, apparently in August 1993,

instituted enforcement proceedings in the Frederikshavn City Court

(retten i Frederikshavn) in order to recover the debts. A compulsory

auction sale of the vessel was scheduled for 16 December 1993 but it

appears that a number of problems arose as to the list of priority

creditors. On 29 December 1993 the applicant was informed by the Court

that the auction had been postponed until 13 April 1994 due to the

conflict concerning creditor priorities and due to the fact that the

vessel was registered in Poland which again involved interpretation of

Polish law and the assistance of the Ministry of Foreign Affairs.

It appears that the applicant challenged the list of priority

creditors established by the Frederikshavn City Court and that the

auction was therefore postponed again. By letter of 14 April 1994 the

Court requested the applicant to appear on 5 May 1994 and to submit

evidence and further information showing the order of creditor

priorities as stated by him.

It is unclear whether the applicant appeared in court but the

auction sale was postponed until 1 September 1994 as the priority

question of the two major creditors from Denmark and Poland,

respectively, remained unresolved. The applicant was informed of this

on 9 May 1994.

It appears that the Frederikshavn City Court then obtained an

expert opinion from the director of the Legal Sciences Institute of the

Polish Academy of Sciences which was transmitted to the applicant on

21 July 1994 for comments. At the same time the Court decided to

postpone the auction sale until 6 October 1994.

On 19 October 1994 the Frederikshavn City Court informed the

applicant that the above expert opinion had been transmitted to the

Polish Embassy which had forwarded it to the Polish Ministry of

Justice. As comments from the Polish authorities had not yet been

submitted the Court furthermore decided to postpone the auction until

further notice.

It appears that a further court session was held on 17 August

1995 following which the parties were, on 6 September 1995, summoned

to appear on 16 November 1995 for the auction sale. The auction sale

took place on that date and the vessel was sold for 1,000 DKK to the

bank which had instituted the enforcement proceedings. The bank also

had to cover the costs and expenses incurred in connection with the

maintenance and necessary repairs, port dues and insurance premiums for

the vessel as well as the costs incurred in connection with the auction

sale.

It is not clear whether the applicant was present at the auction

but he was informed of the outcome on 1 December 1995.

The applicant then addressed himself to the High Court of Western

Denmark (Vestre Landsret) trying again to challenge the initial

decision of the Nexø Bailiff's Court of 10 June 1993 to levy execution

on the vessel and to challenge the compulsory auction of the vessel.

By decision of 19 April 1996 the High Court stated that the applicant

could not challenge the initial decision which had been upheld by the

High Court of Eastern Denmark on 4 August 1993. Furthermore, the Court

found no reason to annul the compulsory auction. Leave to appeal

against this decision was refused on 23 October 1996.

COMPLAINTS

The applicant complains that in the proceedings in which the Nexø

Bailiff's Court levied execution on the vessel on 10 June 1993, a

decision which was subsequently upheld by the High Court of Eastern

Denmark on 4 August 1993, he did not have a fair and public hearing.

In particular as regards the proceedings in the High Court the

applicant submits that he was never informed of any procedural steps

and he was represented by a person he had never heard of and who had

no authority to represent him.

As regards the enforcement proceedings in the Frederikshavn City

Court the applicant complains that they were not terminated within a

reasonable time which again increased the costs of the proceedings.

The applicant invokes Article 6 of the Convention.

THE LAW

1. The applicant complains of the execution proceedings in the Nexø

Bailiff's Court and the High Court of Eastern Denmark and invokes in

this respect Article 6 (Art. 6) of the Convention maintaining that he

did not have a fair and public hearing.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

In the present case the decision of 29 November 1993 to refuse

leave to appeal to the Supreme Court was the final decision regarding

the subject of this particular complaint, whereas the application was

submitted to the Commission on 17 January 1995, that is, more than six

months after the date of this decision. Furthermore, an examination of

the case does not disclose the existence of any special circumstances

which might have interrupted or suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant further complains of the length of the enforcement

proceedings before the Frederikshavn City Court and invokes Article 6

(Art. 6) of the Convention also in this respect.

In so far as relevant this provision reads as follows:

"In the determination of his civil rights ..., everyone is

entitled to a ... hearing within a reasonable time ..."

The Commission has no doubt that the proceedings involved a

"civil right" within the meaning of the above provision as they

concerned, inter alia, complicated questions of ownership and mortgage

priorities. On the other hand the Commission notes that the vessel in

question was owned by OTECH Pty. Ltd. in which the applicant was the

sole shareholder at the relevant time. The Commission does not consider

it necessary to determine whether the applicant may, in these

circumstances, be considered to be a "victim" within the meaning of

Article 25 (Art. 25) of the Convention because even assuming this to

be the case the complaint is in any event inadmissible for the

following reasons.

The Commission recalls that the proceedings appear to have

commenced in the Frederikshavn City Court in August 1993 and that they

ended on 1 December 1995 when the applicant was informed of the outcome

of the auction sale. The period in question accordingly lasted

approximately two years and four months. The auction sale was first

fixed for 16 December 1993 which date had to be vacated as the

applicant challenged the creditor priority list obtained by the court.

As the vessel was registered in Poland further investigations into

Polish law involving the Danish and Polish Ministries of Foreign

Affairs proved necessary and an expert opinion was obtained which

required the submission of further observations also from the Polish

Ministry of Justice. The Commission considers that the delays caused

thereby cannot, on the basis of the facts submitted, be imputed to any

act or omission on the part of the Danish authorities, but are rather

the consequence of a system of mutual assistance in which the

requesting State is dependent on the co-operation of others.

In addition the Commission acknowledges that, in any auction sale

of foreign registered ships, time must be allowed for all the routine

work which the authorities carry out and which the documents only

reflect indirectly. In this respect the Commission also notes that the

Frederikshavn City Court at regular intervals monitored the

developments and kept the applicant informed thereof. Thus, in the

circumstances of the present case the Commission concludes that the

length of the proceedings in question did not exceed what may be

considered "reasonable" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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JASINSKI v. DENMARK

JASINSKI v. DENMARK

LEXI