FOURTH SECTION

DECISION

Application no . 32503/05 Kostadin Apostolov KOSTOV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 16 October 2012 as a Committee composed of:

Päivi Hirvelä , President, Ledi Bianku , Zdravka Kalaydji eva , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 August 2005,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kostadin Apostolov Kostov , is a Bulgarian national who was born in 1939 and lives in Sofia . He is represented before the Court by Mr A. Kashamov , a lawyer practising in Sofia . The Bulgarian Government (“the Government”) are represented by their Agent, Mrs M. Dimova , of the Ministry of Justice.

A. The circumstances of the case

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

1. The first set of civil proceedings

3. On 29 December 2000 the applicant brought a claim against a limited liability company LD-Construction Company (“LDC”), seeking a judicial declaration that a preliminary contract for purchase of a real property had become final and binding. He also claimed damages, plus interest. The applicant did not request a preliminary injunction of the LDC ’ s property with a view of securing a future judgment debt, as he could have.

4. By a judgment of 25 April 2003 the Sofia City Court granted the applicant ’ s claim but failed to rule on the claimed interest.

5. Upon the LDC ’ s appeal, by a final judgment of 12 August 2004 the Sofia Court of Appeal upheld the judgment of 25 April 2003.

6. On 8 October 2004 the applicant requested that the judgment of 25 April 2003 be supplemented concerning interest. Shortly afterwards he also requested the rectification of an alleged manifest error of fact in the same judgment. The first request was dismissed as time-barred in a decision of 23 November 2004 of the Sofia City Court. This decision was upheld on appeal by the Supreme Court of Cassation on 12 October 2006. The rectification request was dismissed in a judgment of the Sofia Court of Appeal of 18 January 2008 as it concerned in reality a claim to supplement the judgment and the rel eva nt deadline had already expired. On 11 November 2008 the applicant ’ s further appeal was dismissed by the Supreme Court of Cassation.

2. The attempts to collect the debt

7. Meanwhile, on 19 June 2003 LDC sold some of its real property, including a store, to company D. The two companies were managed by the same individual.

8. LDC was also in debt to the applicant ’ s granddaughter T.D. On 26 March 2004 the applicant, in his capacity as a guardian and representative of T.D., sent a writ of execution to the enforcement judge, issued on the basis of a notary deed, seeking payment. Shortly afterwards, the enforcement judge attached bank accounts and imposed a ban on the debtor to dispose of the store. It turned out, however, that the bank accounts were almost empty. As for the store, the ban was lifted in February 2005 following a request by the owner, company D. (see paragraph 7 above).

9. In the meantime, on the strength of the judgment of the Sofia Court of Appeal of 12 August 2004, on 7 October 2004 the applicant obtained a writ of execution for the amount of 11,659.95 Bulgarian levs (BGN), plus costs and expenses. On 15 October 2004 he presented the writ to the enforcement judge and requested to join as creditor the enforcement proceedings against LDC, initiated by T.D. He also requested the public sale of the store.

10. In November 2004 the enforcement judge sent at least two enforcement warnings to LDC. They returned unclaimed and the enforcement judge sought assistance from the police. On 8 December 2004 a police officer informed the enforcement judge that he could not find a representative of the debtor at the designated address.

11. Between December 2004 and February 2005 the enforcement judge contacted the property register and the tax authorities in order to obtain information about existing property and the current address of LDC. She also imposed a ban on the debtor to perform transactions with two of its garages. As it turned out later, on the day of the ban the debtor had mortgaged them. On 15 March 2005 the ban was registered in the property register.

12. The enforcement judge also instructed the applicant to submit certain information regarding the debtor. Thus on 22 November 2004 she requested the applicant to secure from the commercial register a certificate concerning LDC ’ s latest address and also to submit its tax and commercial numbers as well as documents, certifying the title to the store. It appears that the applicant did not submit the requested documents. In March 2005, the enforcement judge again instructed the applicant to submit the debtor ’ s actual address but to no avail.

13. In March 2005 the applicant filed complaints against the enforcement judge to the Sofia City Court and the Ministry of Justice, claiming that the enforcement judge had unjustifiably delayed the proceedings. The examination of the complaint addressed to the Sofia City Court could not proceed as a copy thereof could not be served on LDC. The other complaint was examined by the Ministry of Justice which informed the applicant that the enforcement judge could not proceed with the enforcement because she could not find the debtor at the add ress to serve a warning notice.

14. In April 2005 the enforcement judge unsuccessfully attempted to serve documents on the debtor at the address of company D., which had the same manager as the debtor.

15. It appears that between March 2005 and July 2009 the applicant did not request any enforcement measures from the enforcement judge.

16. On 23 July 2009 the applicant presented LDC ’ s new address and on 31 August 2009 a warning notice was served on it.

17. On 7 September 2009 the applicant filed a complaint to the Sofia City Court, claiming that for a period of five years the enforcement judge had been inactive and that, in particular, he had failed to serve a warning notice on the debtor. By a judgment of 16 March 2010 the Sofia City Court rejected the complaint, finding that the enforcement judge undertook measures for collecting the debt and managed to serve a warning notice shortly after he had obtained the actual address of the debtor.

18. It is not clear whether the applicant approached the enforcement judge after 2010.

3. The second set of civil proceedings

19. On 20 April 2005 the applicant brought an action for fraudulent conveyance ( actio pauliana ), on behalf of the minor T.D. and on his behalf, before the Sofia City Court against LDC and companies D. and E. in respect of the sale of 19 June 2003 (see paragraph 7 above) as well as in respect of certain mortgage contracts, including the one of February 2005 (see paragraph 11 above). The applicant requested, in particular, that the contracts be declared null and void only in respect of T.D. as they had adversely affected her rights. He did not make any statements concerning his rights. The applicant submitted three addresses of LDC, one of the company and the others of the company ’ s managers.

20. Following requests and appeals on behalf of T.D., a court hearing was scheduled for 30 October 2007.

21. In a judgment of 1 February 2011 the Sofia City Court allowed the action in respect of T.D. as regards the sale contract of 2003 and the mortgage contracts of February 2005. In respect of the applicant, the court noted that he had not made any claim concerning his own property and refused to make a ruling in respect of him.

22. The applicant and T.D. appealed against the judgment. As of February 2012, the proceedings were pending before the Sofia Court of Appeal.

B. Rel eva nt domestic law

1. Institution of enforcement proceedings

23. Article 325 § 1 of the Code of Civil Procedure 1952 (“the 1952 Code”) in force at the material time provided that upon receipt of the writ of execution, the enforcement judge was duty-bound to send a notice to the debtor in order to invite him to pay voluntarily. The notice also contained a warning that in case of non-payment within seven days of the receipt, the enforcement judge would undertake compulsory enforcement measures (Article 325 § 2).

24. Article 327 of the 1952 Code provided that in case the debtor ’ s whereabouts were unknown, the enforcement judge could request the rel eva nt District Court to appoint an ad hoc representative. The wording of the said Article indicates that such a representative could be appointed only if the debtor was an individual.

25. The new Code of Civil Procedure 2007 (“the 2007 Code”) which came into force on 1 March 2008 contained similar provisions.

2. The role of the creditor in enforcement proceedings

26. Article 323 of the 1952 Code provided that the enforcement proceedings were to be instituted upon the request of the creditor and after the latter had submitted a valid writ of execution or other equivalent document. The creditor was under the obligation to state against what possessions (bank accounts, immovable property, etc.) of the debtor he or she would like the enforcement to be directed (Article 323 § 3). Throughout the proceedings the creditor could request the enforcement actions to be directed against different possessions of the debtor. Had the creditor not requested enforcement actions to be undertaken for a period of two years, the enforcement proceedings were to be terminated (Article 330 § 1 д).

27. Those provisions were repeated almost verbatim in the 2007 Code.

3. Actio pauliana

28. Pursuant to section 135(1) of the 1950 Obligations and Contracts Act the creditor could request the court to set aside as null and void actions of the debtor with which the debtor had intentionally caused him or her damage. The judgment allowing such a claim produces effect only in respect of the creditor who requested it and does not benefit any other creditors of the defendant.

COMPLAINTS

29. The applicant complained under Articles 6 § 1 and 13 of the Convention about the protracted enforcement of the judgment in his favour and the alleged failure of the enforcement judge to cooperate with him.

30. He further complained, relying on Article 6 § 1, about the failure of the domestic court to give a judgment on the claimed interest and the outcome and length of the ensuing proceedings for supplementing the judgment of 25 April 2003 and for rectification of a manifest error of fact. Lastly, the applicant complained under Article 6 § 1 about the length of the second set of civil proceedings.

THE LAW

A. Complaint under Articles 6 § 1 and 13 in respect of the non ‑ enforcement of the judgment in the applicant ’ s favour

31. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained about the protracted enforcement of a judgment in his favour and the alleged failure of the enforcement judge to cooperate. The Court considers that these complaints fall to be examined solely under Article 6 § 1, which reads in so far as rel eva nt:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

32. The Government contested the applicant ’ s position, stating that the reasons for the delay were due to the lack of sufficient cooperation on the part of the applicant. The applicant responded that the enforcement judge should have proceeded with the enforcement despite the impossibility to serve a warning notice on the debtor by means of, for instance, requesting the appointment of an ad hoc representative.

33. The Court reiterates that execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). However, a delay in the execution of a judgment may be justified in particular circumstances (see Burdov v. Russia , no. 59498/00, § 35, ECHR 2002-III) and the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (see Sanglier v. France , no. 50342/99, § 39, 27 May 2003).

34. The Court notes that in the present case, the dispute was between private parties and the Court ’ s only task is to examine whether the measures applied by the authorities were adequate and sufficient (see Ruianu v. Romania , no. 34647/97, § 66, 17 June 2003). Thus the point in issue is whether the delay in executing the judgment was imputable to the authorities. More particularly, noting that the applicant complains solely of the alleged inactivity of the enforcement judge, the Court will limit its examination to this aspect.

35. The Court notes that the proceedings concerning the applicant were initiated in October 2004 and in March 2010 they were still pending. However, the Court observes that in the period between October 2004 and April 2005 all of the applicant ’ s requests to the enforcement judge were met in a timely manner. The enforcement judge banned transactions with certain property of the debtor and attached bank accounts in due course following such requests. The enforcement judge also made consistent efforts to find and serve documents on LDC. In the light of that, the applicant ’ s statement that the enforcement judge did not provide sufficient cooperation appears ill-founded.

36. As for the period after April 2005, the applicant did not request any enforcement measures. In this connection, the Court reiterates that a successful litigant may be required to undertake certain procedural steps and to act with a certain diligence in order to recover a judgment debt (see Burdov v. Russia (no. 2) , no. 33509/04, § 69, ECHR 2009 ‑ ... ) and under the domestic legislation creditors were under the obligation to show initiative. Thus they are required not only to request the opening of the enforcement proceedings, but also to periodically request specific enforcement actions to be carried out (see Hadzhinikolov v. Bulgaria [Committee], no. 24720/04, § 30, 26 July 2011). In the present case, the Court cannot overlook the fact that it was for the applicant, in his capacity as a creditor, to show the necessary diligence throughout the proceedings. In particular, it appears from his submissions that the applicant was aware of the addresses of the company ’ s managers and provided them in his statement of claim of 20 April 2005 (see paragraph 21 above). There is no indication, however, that those addresses were ever submitted to the enforcement judge.

37. Further, the Court is conscious of the fact that in all probability after April 2005 the applicant did not approach the bailiff because he was awaiting the outcome of the actio pauliana . However, it is not clear whether the company had sold all its assets and the said proceedings were the only avenue of eventually obtaining payment. Moreover, in those proceedings the applicant failed to advance any claims that his rights had been adversely affected, meaning that possible positive outcome could benefit only T.D. in her capacity as a creditor who had brought the actio pauliana (see paragraph 31 above).

38. Lastly, the fact that some of the property had been transferred before the initiation of the enforcement proceedings and that some of the accounts had been emptied could not be imputed to the authorities (see, by contrast, Grivneac v. Moldova , no. 35994/03, § 23, 9 October 2007 ). In this connection, the Court reiterates that the State cannot be held responsible for delays in the enforcement caused by the debtors ’ inability to pay (see Samoylenko and Polonska v. Ukraine , no. 6566/05 , § 27, 18 December 2008; Hadzhinikolov , cited above, § 44 ). Indeed, the rel eva nt law made available tools to prevent such developments, such as a request for a preliminary injunction and the applicant could have submitted such a request in 2000, when he brought his claim.

39. In the light of the aforementioned considerations, the Court considers that the delay in the enforcement was chiefly caused by the applicant ’ s failure to request a preliminary injunction on property of LDC, his insufficient cooperation and the debtor ’ s lack of financial resources .

40. It follows that the State has not failed to take adequate measures in order to ensure the enforcement of the judgment, the above complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 § 1 in respect of the length of the second set of civil proceedings

41. The applicant further complains under Article 6 § 1 that the length of the second set of civil proceedings was excessive. Article 6 § 1, in so far as relevant, reads as follows:

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

42. The Government argued that the case was complex and that the proceedings were delayed due to the procedural behaviour of the plaintiff.

43. The Court observes that in his statement of claim, filed to the Sofia City Court, the applicant only claimed alleged rights on behalf of T.D. (see paragraph 19 above). He did not mention that the said actions had any adverse effect on his rights. Later, in its judgment of 1 February 2011 the domestic court found that the applicant did not seek protection of his civil rights but solely of the rights of his granddaughter.

44. In view of that and in the absence of any statement advanced by the applicant to the opposite, the Court is not persuaded that the proceedings complained of concerned the applicant ’ s civil rights and obligations or that they were in any way decisive for their determination (see, for example, Destilacija PLC v. Bosnia and Herzegovina ( dec .), no. 11683/08, 17 May 2011). Article 6 therefore does not apply.

45. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

C. Other complaints

46. The applicant further complained, relying on Article 6 § 1 about the failure of the domestic court to give a judgment on the claimed interest and about the outcome and the length of the ensuing proceedings for supplementing the judgment of 25 April 2003 and for rectification of a manifest error of fact.

47. The Court has examined these complaints as submitted by the applicant. 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 Convention or its Protocols.

48. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President