SECOND SECTION

DECISION

Application no. 14749/06 Güner ERAYMAN against Turkey

The European Court of Human Rights (Second Section), sitting on 11 June 2019 as a Committee composed of:

Julia Laffranque, President, Ivana Jelić, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 24 March 2006,

Having regard to the decision of 29 May 2018 to strike the application out of the list of cases,

Having regard to the decision of 2 October 2018 to restore the application to its list of cases,

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

Having deliberated, decides as follows:

PROCEDURE

1. The applicant, Ms Güner Erayman, was a Turkish national, who was born in 1969. She died on 1 June 2017.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. On 29 May 2018, following the applicant ’ s death , the Court decided to strike the application out of its list of cases pursuant to Article 37 § 1 (c) of the Convention since no request had been submitted by her heirs to pursue the examination of the case.

4. By a letter dated 12 July 2018 the applicant ’ s two sons, Mr Ali Yeşil and Mr G ö khan Yeşil , requested the Court to restore the application to its list of cases. They also informed the Court that they wished to pursue the application in her stead.

5. By a decision of 2 October 2018, the Court decided to restore the application to its list of cases in accordance with Article 37 § 2 of the Convention.

6. For practical reasons, Ms Er a yman will continue to be called “the applicant” in this decision although her two sons are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ VI, and Çakar v. Turkey , no. 42741/98, § 2, 23 October 2003).

THE FACTS

A. The circumstances of the case

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

8. In 1993 the applicant and her husband divorced. The applicant was granted the custody of their two children and the father was ordered to pay monthly maintenance for them.

9. On 26 March 2003 the applicant lodged an action with the Kırklareli Civil Court of General Jurisdiction (“the civil court”) against the father, requesting increased maintenance for the children.

10. On 29 April 2004 the civil court accepted the applicant ’ s claim and ordered the father to pay the applicant 145 Turkish liras (TRY) (approximately 84 euros (EUR) at the time) in monthly maintenance for the two children. The judgment became final on 8 June 2004.

11. Between June 2004 and September 2009 the applicant initiated several enforcement proceedings against the debtor father to obtain the maintenance awarded by the civil court. At the end of those proceedings, the debtor was convicted several times for failing to pay his outstanding maintenance pursuant to Section 344 of the Enforcement and Bankruptcy Act (see paragraph 19 below).

12. In the meantime, on 6 June 2005, a bailiff had gone to the café managed by the debtor in order to make an assessment of his possessions at the request of the applicant. On the same date the bailiff imposed an attachment order on certain items and, with the consent of the applicant, left them to the debtor as a trustee, reminding him of his criminal and civil liabilities in discharging his duty as a trustee.

13. On 27 December 2005 the Kırklareli Criminal Enforcement Court noted that the father ’ s outstanding debt from June 2004 to 12 October 2005 was TRY 3,771.

14. On 11 April 2007 the Kırklareli Magistrates ’ Court convicted the debtor of abusing the duty of trusteeship pursuant to Article 289 of the Criminal Code on the ground that he had disposed of the assets on which the attachment order was imposed, and sentenced him to one month and seven days ’ imprisonment, commuted to a fine of TRY 740.

15. On 8 September 2009 the applicant filed a new petition with the Kırklareli Criminal Enforcement Court (“the criminal enforcement court”) complaining about the non-payment of the maintenance awards.

16. On 19 January 2010 the debtor pleaded before the criminal enforcement court that he had been paying his maintenance debt by instalments of TRY 200 as he had insufficient financial means to make payment in full.

17. On the same date the criminal enforcement court sentenced the debtor to three months ’ imprisonment for his failure to pay his maintenance debt, holding that he had an outstanding debt of TRY 2,970 (approximately EUR 1,420 at the time). It also noted that the sentence would be quashed in case of the payment of the outstanding amount.

18. In a letter of 21 February 2010, the applicant informed the Registry that the debtor had made a payment of TRY 2,970 and that his sentence had consequently been quashed.

B. Relevant domestic law

19. Section 344 of the Enforcement and Bankruptcy Act (Ä°cra ve iflas Kanunu) provides that, following a complaint by the creditor, a debtor who has failed to pay a maintenance ordered by a court may be sentenced to imprisonment for up to three months. If repayment is made while the sentence is being served, the debtor shall be released.

COMPLAINT

20. Without relying on any Article of the Convention, the applicant complained of the non-enforcement of the civil court ’ s judgment ordering her former spouse to pay maintenance for their children. She further alleged that the criminal enforcement court had made an error in the calculation of the outstanding amount as the debtor had owed her more than the amount specified in its decision of 19 January 2010.

THE LAW

A. Preliminary issue

21. The Government contested the Court ’ s decision of 2 October 2018 to restore the application to its list of cases (see paragraph 5 above), considering that there were no justified or exceptional circumstances according to Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court.

22. The Court notes that it may take the decision to restore the case to its list of cases at any moment if it is satisfied that the circumstances justify such a course (Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court). As regards the Government ’ s disagreement with the Court ’ s decision of 2 October 2018, it sees nothing in the Government ’ s submissions of such nature to warrant a new consideration of the matter ( Aleksentseva and Others v. Russia , nos. 75025/01 and 18 others, § 15, 17 January 2008).

B. Complaint under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 to the Convention

23. The applicant complained of the non-enforcement of the civil court ’ s judgment ordering her former spouse to pay maintenance for their children. In her letter of 21 February 2010, she further alleged that the criminal enforcement court had made an error in the calculation of the outstanding amount as the debtor had owed her more than the amount specified in its decision of 19 January 2010.

24. The Government maintained that the applicant had recovered the amount due by the debtor and that the remedies which were available to her were effective.

25. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention (see, among many others, Güler and Kekeç v. Turkey , nos. 33994/06 and 36271/06, §§ 20-28, 7 June 2011).

26. The Court recalls that in cases of the enforcement of a final court decision rendered against private actors, the State is not, as a general rule, directly liable for debts of private actors. The State ’ s obligations under Article 6 and Article 1 of Protocol No. 1 are limited to providing the necessary assistance to the creditor in the enforcement of the respective court awards, for example, through enforcement proceedings or bankruptcy procedures (see Marinković v. Serbia , no. 5353/11 , § 38 , 22 October 2013, and mutatis mutandis Kotov v. Russia [GC], no. 54522/00 , § 90, 3 April 2012 ). Accordingly, where an applicant complains about the inability to enforce a judgment against private persons, the Court ’ s task is to examine whether measures applied by the authorities were adequate and sufficient and whether they acted diligently in order to assist a creditor in the execution of a judgment ( Anokhin v. Russia (dec.), no. 25867/02, and Fociac v. Romania , no. 2577/02, § 70, 3 February 2005).

27. Turning to the present case, the Court observes that the applicant was able to initiate several enforcement proceedings to obtain the maintenance awarded by the civil court. At the end of those proceedings, the debtor was convicted several times for failing to pay his outstanding maintenance pursuant to Section 344 of the Enforcement and Bankruptcy Act. The Court further notes that the debtor pleaded before the criminal enforcement court that he had been paying his outstanding debt by monthly instalments as he had insufficient financial means to make payment in full. In this regard, the Court recalls that a failure to enforce a judgment because of the debtor ’ s indigence cannot be held against the State unless and to the extent that it is imputable to the domestic authorities, for example, to their errors or delay in proceeding with the enforcement ( Vrtar v. Croatia , no. 39380/13 , § 96, 7 January 2016).

28. Moreover, the Court notes that an attachment order was imposed on certain possessions of the debtor at the café managed by him. However, the debtor disposed of these possessions while they were left to him as a trustee and he was consequently convicted of abusing the duty of trusteeship pursuant to Article 289 of the Criminal Code. The Court considers that the domestic authorities cannot be held responsible for this act of the debtor, since the possessions were left to him with th e consent of the applicant (see paragraph 12 above).

29. The Court further notes that the debtor made a payment for the outstanding amount of his debt, albeit with delay. Given the above considerations, the Court considers that this delay was not attributable to the domestic authorities, but rather to the debtor ’ s financial means and actions.

30. As regards the applicant ’ s claim that the criminal enforcement court had made an error in the calculation of the outstanding amount in its decision of 19 January 2010, the Court notes that this allegation is not supported by any concrete evidence. While it is true that the amount specified in the decision of 27 December 2005 was higher than the one mentioned in the decision of 19 January 2010, the Court is ready to accept, in the absence of any proof to the contrary, that this was due to the instalments paid by the debtor before the latter date (see paragraph 16 above).

31. Having regard to the foregoing, there is no indication that the measures applied by the domestic authorities in order to enforce the civil court ’ s judgment were not adequate or sufficient or that the delay in enforcement was attributable to the respondent State.

32. It follows that 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.

Done in English and notified in writing on 4 July 2019 .

Hasan Bak ırcı Julia Laffranque Deputy Registrar President