Published on 2 November 2021

FIFTH SECTION

Application no. 11843/16 Tadeush KOBETS against Latvia lodged on 25 February 2016 communicated on 11 October 2021

SUBJECT MATTER OF THE CASE

The application concerns the inability to fully enforce a decision of 29 October 2012 ordering compensation to be paid to the applicant from frozen funds located in a private bank (the Bank).

By a decision of 29 October 2012 (which took effect on 21 February 2013) the domestic courts convicted an individual of fraud. The applicant, who was one of the two victims in those proceedings, was awarded compensation to be paid using half of the funds that had been declared illegally acquired and which had been seized by placing a restriction on those funds in the Bank (the frozen funds). In sum, the applicant was to receive funds in the amount of 423,331.51 US dollars (USD) and 88,283.58 euros (EUR).

Meanwhile, the Bank entered into liquidation. The Bank’s liquidator refused a request to pay the compensation to the applicant; instead she placed the applicant on the creditors’ list. By a final decision of 9 September 2013 the domestic courts held that the liquidator’s actions had been unlawful.

Meanwhile, civil proceedings (no. C04331013) were instituted and, on 6 August 2013, an interim measure was ordered and another restriction was placed on the frozen funds, which effectively prohibited any transfer of money to the applicant. By a decision of 13 October 2015 that interim measure was lifted.

However, on 17 December 2014 the Bank was declared insolvent, an insolvency administrator was appointed and on 2 July 2015 the bankruptcy proceedings were completed. The amount reserved to the applicant as one of the Bank’s creditors, i.e., EUR 19,128.21, was entrusted to a notary, who transferred it to a bailiff once the interim measure in the civil proceedings was lifted. Eventually the applicant received EUR 16,608.38; EUR 2,519.83 were paid to the bailiff to cover his expenses.

The applicant’s attempts to have criminal proceedings instituted against the Bank’s liquidator were unsuccessful.

The applicant complains under Article 6 and Article 1 of Protocol No. 1 about his inability to obtain the compensation award owing to the actions taken by the Bank’s liquidator. He alleges that his inability to obtain full compensation also derived from the decisions by the domestic courts to institute civil proceedings, order an interim measure and place another restriction on the frozen funds which had to be used to pay him compensation. He also relies on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Can the State be held responsible for actions taken by the Bank’s liquidator (see Kotov v. Russia [GC], no. 54522/00, §§ 92-106, 3 April 2012 )?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

3. Was the applicant’s inability to fully enforce the decision of 29 October 2012 given in its favour, compatible with the right to a court guaranteed by Article 6 § 1 of the Convention? In particular, has the State complied with its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without any undue delay (see Fuklev v. Ukraine , no. 71186/01, § 84, 7 June 2005)?

4. Has the State complied with its positive obligations under Article 1 of Protocol No. 1 to provide judicial mechanisms for the protection of the applicant’s property rights ( see Kotov , cited above, §§109-15; Blumberga v. Latvia , no. 70930/01, § 67, 14 October 2008; and Fuklev , cited above, § 91 )?

5. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention (see, for example, Fuklev , cited above, § 87)?