THIRD SECTION

DECISION

Application no . 27903/10 ZIPP BRATISLAVA SPOL. S R.O . against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 19 November 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Luis López Guerra, Kristina Pardalos , Johannes Silvis, Valeriu Griţco , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 10 May 2010 ,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, ZIPP BRATISLAVA spol . s r.o . , is a private limited company, which was established under Slovakian law in 1993, and has its registered office in Bratislava.

2. The appliant company was represented before the Court by Ms E. Ľalíková , a lawyer practising in Bratislava .

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

A. The circumstances of the case

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

1. Underlying facts

4. By judgments of the Bratislava Regional Court ( Krajský súd ) and the Supreme Court ( Najvyšší súd ) of 18 April 2002 and 23 May 2003, respectively, the applicant company was ordered to pay an amount of money (“the order”) to another private company within fifteen days of the date on which the order became final and binding ( právoplatnosť ).

5. Subsequently, the judgment creditor petitioned for enforcement, relying on a certificate ( doložka ) issued by the Regional Court on 11 August 2003 to the effect that, following service of the above-mentioned judgment of the Supreme Court on the parties, the order had become final and binding on 27 July 2003 and that , upo n the expiry of the period allowed for voluntary compliance with i t, the order would become enforceable ( vykonateľnosť ) on 13 August 2003.

6. The enforcement was authorised by the Bratislava III District Court ( Okresn ý súd ) (“the Enforcement Court”) , following which a judicial enforcement officer (“JEO”) issued a notice of enforcement ( upovedomenie o začatí exekúcie ) notif ying t he applicant company that enforcement proceedings had commenced against it.

7. By what can be described as two separate rulings, t he notice of enforcement specified the principal amount to be enforced and the amount of the costs of the enforcement, the latter sum being equivalent t o some 28,600 euros.

8. At the same time, the JEO ordered ( príkaz na začatie exekúcie ) the applicant company ’ s bank to freeze the applicant company ’ s bank accounts.

9. In response, the applicant company challenged the notice of enforcement by way of an objection ( námietky ) lodged with the Enforcement Court , arguing that the judg ment of the Supreme Court of 23 May 2003 had not been served on it and that, consequently, the order could not have and had not become final, binding and enforceable.

Formally speaking, the applicant company ’ s objection was aimed at the permissibility of the enforcement itself, and not at the ruling concerning the costs of the enforcement.

10. On 1 4 November 2003 the Enforcement Court dismissed the applicant company ’ s objection. Although it acknowledged that the Regional Court ’ s certificate of 11 August 2003 was erroneous on the grounds asserted by the applicant company, the Enforcement Court found that the Regional Court had already corrected its error by ensur ing service of the Supreme Court ’ s judgment on the applicant company and by issu ing a new certificate with the correct dates on which the order had become final , binding and enforceable.

11. The enforcement was consequently completed by the forcible taking of the entire enforced amount, that is to say including the costs of the enforcement , from the applicant company ’ s bank account.

12. However, upon an extraordinary remedy lodged on the applicant company ’ s behalf by the Prosecutor General, on 24 February 2005 the Supreme Court quashed the d ecision of 14 November 2003 and ordered that the Enforcement Court re-examine the applicant company ’ s objection.

13. The Supreme Court held in general terms that an authorisation of enforcement of an order for payment of an amount of money by freezing bank accounts necessitated that the order must have become enforceable by the time the enforcement petition was lodged. It was not sufficient for such an order to have become enforceable later or to be enforceable at the time an objection against a notice of enforcement was determined. In other words, if an order had not become enforceable by the time of the petition for enforcement, the enforcement petition ought to be dismissed.

14. The Supreme Court further held, specifically, that:

“By [their] unlawful actions the [JEO] and the Enforcement Court prevented [the applicant company] from paying its debt to the creditor in the grace period envisaged by the [order], whereby financial damage [ was ] caused to [the applicant company] consisting of the costs of the enforcement proceedings paid.”

15. However, despite the Supreme Court ’ s order to do so, the Enforcement Court did not re-examine the applicant company ’ s objection. The last decision in that respect was given by the Constitutional Court on 19 September 2007 .

In it, the Constitutional Court observed that the enforcement proceedings had meanwhile been terminated and that restitutio in integrum i n enforcement proceedings was not permissible. The enforcement of the order had been carried out and, in the given situation , the Enforcement Court was not be liable to re - examine the matter.

2. Claim for damages

16. Meanwhile, relying on the State Liability Act 1969 (Law no. 58/1969 Coll., as in force at the relevant time) , the applicant company had lodged a claim for damages against the State, in the person of the Ministry of Justice . It argued that the enforceability certificate of 11 August 2003 and the decision of 14 November 2003 ha d amounted to, respectively, a wrongful official action ( nesprávny úradný postup ) and an unlawful decision ( nezákonné rozhodnutie ).

Relying further on the Supreme Court ’ s conclusions (see paragraphs 1 3 and 1 4 above), the applicant company submitted that the impugned wrongful official action and unlawful decision had caused it pecuniary damage consisting of the costs of the enforcement proceedings, which the applicant company could have avoided, had it had at its disposal the grace period allowed to it in the order. As a result of the impugned action and decision, however, the applicant company had been deprived of th at grace period ; had been forced into enforcement proceedings ; and had been made to bear the costs of the enforcement, which it sought to have compensated .

17. The action was examined at first instance by the District Court. One of the hearings took place on 22 June 2006. At that hearing the applicant company ’ s lawyer specifically submitted that the applicant company ’ s objection (see paragraph 9 above) had not been aimed at the ruling in the notice of enforcement concerning the costs of the enforcement.

18. Subsequently, the action was dismissed by the District Court and the Regional Court on 2 October 2006 and 17 February 2009 , respectively. The courts made the following key findings.

The action had been aimed at obtaining compensation in respect of the costs of the enforcement. However, the certificate of 11 August 2003 taken alone was not directly linked to the costs reclaimed. Furthermore, the ruling on the costs of the enforcement in the notice of enforcement could and should have been challenged by way of an objection. As the applicant company had not challenged that specific ruling, it had failed to satisfy the requirement under the State Liability Act 1969 for the admissibly of a compensation claim under that Act first to exhaust appropriate legal remedies.

In addition, as the objection actually filed by the applicant company had not been aimed at the specific ruling on the costs of the enforcement, the decision on that objection had had nothing to do with those costs. Therefore, there was no causal nexus between, on the one hand, the impugned certificate and decision and, on the other hand, the alleged damage.

19. The ordinary courts ’ conclusions were endorsed by the Constitutional Court in a decision of 13 October 2009 to dismiss as manifestly ill-founded the applicant company ’ s constitutional complaint of a violation of its rights of access to court, to a fair hearing and to the protection of property.

In so far as in its constitutional complaint the applicant company had also challenged the length of the proceedings, the Constitutional Court observed that, at the time of the introduction of the constitutional complaint, the proceedings had already been completed. The examination of their length could thus no longer serve to expedite them.

Therefore, in line with the Constitutional Court ’ s established practice, the applicant company no longer held any interest in having the length ‑ of ‑ proceedings complaint examined.

The Constitutional Court ’ s decision was served on 12 November 2009.

COMPLAINTS

20. The applicant company complained under Article 1 of Protocol No. 1 to the Convention that its claim for damages against the State ha d been arbitrarily dismissed .

21. T he applicant company also complain ed under Article 13 of the Convention that it ha d not had an effective remedy at its disposal in respect of its complaint under Article 1 of Protocol No. 1.

22. Lastly, r elying on Article 6 § 1 of the Convention, the applicant company complain ed that the dismissal of its compensation claim ha d been contrary to its rights of access to court and to a fair hearing, and that the length of the proceedings concerning this claim had been excessive.

THE LAW

A. Article 1 of Protocol No. 1 alone and in conjunction with Article 13 of the Convention

23. The applicant company complained that its compensation claim against the State had been dismissed in spite of the Supreme Court ’ s judgment of 24 February 2005 and that it had had no effective remedy in that respect, in contravention of Articles 1 of Protocol No. 1 to the Convention and Article 13 of the Convention, which read as follows:

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 13 of the Convention:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

24. In reply, the Government cited extensively from the ordinary courts ’ judgments, which they fully endorsed. In their view, the Supreme Court ’ s judgment of 24 February 2005 could not have served as a basis for any legitimate expectation on the part of the applicant company that its compensation claim would be allowed, because, first, that judgment had not concerned the compensation claim but rather the enforcement proceedings, and second, as regards the enforcement proceedings, it had not concerned the ruling on the enforcement costs, which was at the heart of the present case, but rather the ruling on the legitimacy of the enforcement itself.

25. The applicant company rejoined disagreeing and reiterating its arguments. It emphasised that it had been prevented from paying its adjudicated debt voluntarily, in respect of which situation it had ended up having no remedy. The applicant company also pointed out that, despite the Supreme Court ’ s judgment of 24 February 2005 , the Enforcement Court had failed to determine the permissibility of the enforcement anew. A fresh determination of that question would have entailed a new ruling on the costs of the enforcement and, had the enforcement been declared impermissible, an order for the return of the enforcement costs to the applicant company would have been an automatic statutory consequence.

The applicant company concluded that, in the given circumstances, the enforcement had clearly been unlawful and that it had had a legitimate expectation of being duly compensated.

26 . The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-f ulfilment of the condition (for recapitulation of the applicable principles see, for example, Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX, with further references).

27. Turning to the facts of the present case, the Court observes that the applicant company brought a compensation claim against the State relying on the provisions of the State Liability Act 1969 and the Supreme Court judgment of 24 February 2005 . The action was examined by the ordinary courts at two levels of jurisdiction, which concluded that a claim of that kind was subject to the rule of exhaustion of appropriate remedies, which in the present case required the applicant company to have challenged the ruling on the costs of the enforcement by way of an objection lodged with the Enforcement Court.

28. The Court also observes that there has not been any dispute about the fact that the applicant company actually failed to fulfil that statutory requirement (see in particular paragraphs 9 and 17 above), and that no argument has been raised to the effect that the applicant company should have been exempted from doing so.

29. Furthermore, in so far as the applicant company cited the Supreme Court judgment of 24 February 2005 in order to show that it had had a legitimate expectation of having its compensation claim allowed, the Court notes that the Supreme Court ’ s pronouncements supporting the applicant company ’ s claim were not made in the operative part of its judgment but rather were obiter dicta .

30. Moreover, the Court notes that the Supreme Court made the pronouncements in question in proceedings that concerned parties (the applicant company and the judgment creditor) other than those involved in the proceedings concerning the applicant company ’ s compensation claim (the applicant company and the State) and that the subject-matter of those proceedings (permissibility of the enforcement) was different from the subject-matter of the proceedings concerning the applicant company ’ s compensation claim.

31. The foregoing considerations are sufficient for the Court to conclude that that it has not been shown in the present case that the applicant company ’ s compensation claim amounted to “property” in terms of the Court ’ s case-law. The complaint under Article 1 of Protocol No. 1 is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) .

32. It follows that the applicant company cannot be said to have an “arguable claim” under Article 1 of Protocol No. 1 for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom , 27 Apri l 1988, § 52, Series A no. 131) and that, consequently, the complaint under the latter provision is manifestly ill-founded.

33. In conclusion, for reasons specified above, the relevant part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

34. The applicant company also alleged that the length of the proceedings concerning its compensation claim and its ultimate dismissal had been contrary to its right a fair hearing (including its right of access to court ) within a reasonable time, in violation of its rights under Article 6 § 1 of the Convention.

35. 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 invoked .

It follows that th e remainder o f the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President