Lexploria

Information Note on the Court’s case-law 37

December 2001

Tsironis v. Greece - 44584/98

Judgment 6.12.2001 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Property seized and sold without its owner being informed: violation

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adversarial trial

Property seized and sold without its owner being informed: violati on

Facts : The applicant, a seaman, took out a bank loan to purchase a plot of land. Having fallen behind with the repayments, he was informed that the bank intended to repossess the property. The two parties then reached an agreement whereby the applicant undertoo k to pay the sum owed, and was issued with a document from the bank certifying that that undertaking had been given. In spite of the agreement that had been reached, the bank had the property sold at auction. Notice of the auction was not given to the appl icant, who had moved house in the meantime. Moreover, on the date of the auction he was at sea, a fact which, he asserted, was known to the bank and the bailiff charged with serving him notice. Having learned, on returning to land, that his property had be en sold, he took proceedings with a view to having the sale annulled. His applications were declared inadmissible on the ground that they had been lodged after the sale had gone through.

Law: Compliance with the time-limit laid down by Article 934 of the C ode of Civil Procedure presupposed that the injured party had actually been aware of the act complained of so that he could challenge it in the courts. But the applicant had not been informed of the auction on account of a lack of diligence on the part of the bailiff who should have served him with notice of the sale, and there was no way he could have known that it was imminent. The Greek courts had accepted that the notice was void, but had dismissed the application to have the sale annulled as inadmissib le on the ground that he ought to have lodged it before the auction had taken place. They had thus rigorously applied domestic law. With regard to the proportionality of the above restriction on the applicant’s right of access to a court, not only was he a bsent at the time when the auction procedure was set in motion, but he could not have had any idea that it was a possibility. Furthermore, he had reached an agreement with the bank before going to sea and a decision to sell the property at auction could no t have appeared imminent to him.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 – (a) Government’s prelminary objection: in the Government’s submission, the applicant’s complaint was incompatible with the Convention ratione personae . They argued that the bank in question operated under private-law rules and could not be regarded as belonging to the State. The fact that all of its shares were held by the State was not sufficient, in the Government’s submission, to differentiate it from a pr ivate bank. However, section 26 of Law no. 1914/1990 made the bank’s transformation into a private-law banking establishment conditional on approval of its articles of association by the Minister of Financial Affairs and the Minister of Agriculture. When t he bank asked the notary to auction the property it had not yet become a joint-stock company. In addition, the State was still its sole shareholder and retained all the privileges it had before the bank’s status changed. Accordingly, the objection raised b y the Government had to be rejected.

(b) Repossession and sale by auction of the applicant’s property had constituted interference with his right to the peaceful enjoyment of his possessions and amounted to a deprivation of property. That interference had pursued a legitimate aim in the publi c interest, namely recovery of the debt owed to the bank that had made the loan to the applicant. Under Article 1002 of the Code of Civil Procedure, a person whose property was to be sold at auction was entitled until the sale was effected to pay the sums he or she owed, and in such a case the sale would be cancelled and the repossession order rescinded. Article 934 of the Code provided that an application for a sale by auction to be annulled could be lodged at any time before the auction began. Those right s and remedies could be exercised by the debtor provided that he was aware that there was to be an auction. In that connection, Article 993 § 4 provided that a sale by auction effected without notice being given to the debtor was void. In the present case the notarial act ordering the auction had been drawn up after an agreement had been reached between the applicant and the bank to settle his debts and after his ship had sailed. The applicant was therefore entitled to think that his debt had been settled a nd that the bank would not go ahead with the repossession and auction procedure. Furthermore, the bailiff had served the act in question under the procedure for serving notice to persons whose address was not known. But the applicant had deposited with the police the papers attesting to his change of address and the creditors knew which company he worked for. The applicant had been able to submit serious arguments in support of his application for the sale to be annulled to the courts dealing with his case. His application had nevertheless been declared inadmissible as being out of time. In the final analysis, the way in which the applicant’s creditor had set about expediting recovery of the debt, combined with the courts’ decision to refuse the application as being out of time, when the applicant had no way of reacting to the situation thus created, had upset the fair balance between protecting the right to peaceful enjoyment of possessions and the requirements of the general interest.

Conclusion : violation (unanimously).

Article 41: The Court awarded 6,000,000 drachmas (GRD) in respect of damage sustained by the applicant and GRD 2,000,000 for his costs and expenses.

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