Published on 2 November 2021

FIFTH SECTION

Application no. 1298/16 SIA RT PIEDZIÅ…AS GRUPA against Latvia lodged on 24 December 2015 communicated on 11 October 2021

SUBJECT MATTER OF THE CASE

The application concerns the inability to fully enforce a decision ordering the bailiff to pay all the amount obtained from an auction of a debtor’s property for the benefit of the applicant company.

On 12 January 2010 bailiff A sold the debtor’s property, that had been mortgaged in favour of the applicant company, in an auction to cover her debts. On 1 September 2010 bailiff B took over bailiff A’s cases and reserved proceeds from that auction in the amount of 244,239,41 Latvian lati (LVL) (approximately 347,521.37 euros (EUR)) to the applicant company pending receipt of a writ of execution.

Meanwhile, the applicant company instituted civil proceedings against the debtor to recover her debt. By a judgment of 21 May 2012 (which took effect on 16 December 2014) the applicant company’s claim was granted. The applicant company obtained a writ of execution and on 15 January 2015 submitted it to bailiff C who had taken over bailiff B’s cases in the meantime. On 20 February 2015 she informed the applicant company that there was a deficit of funds in the amount of EUR 130,738.80, thus paid only the available amount of EUR 216,782.57 to the applicant company’s bank account.

By a final decision of 26 June 2015 the domestic courts found bailiff C’s actions unlawful and ordered her to pay the remaining EUR 130,738.80 to the applicant company (domestic proceedings no. C30334515). The applicant was unable to have this decision enforced as the domestic court recalled the writ of execution issued in this case for reasons which remain unclear.

Following an inventory, on 16 November 2017, bailiff C paid to the applicant company EUR 6,696.41 and, on 14 March 2018, EUR 19,105.50 that had been recovered from bailiff B in the meantime. Thus, the applicant company has been unable to receive EUR 104,936.89 from the amount initially reserved by bailiffs to cover the debt.

The applicant company instituted civil proceedings against bailiff C and several insurance companies, but their claim was dismissed by a final decision of 15 October 2020. It appears that criminal proceedings have also been instituted against bailiff A, but they are currently pending.

The applicant company complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the decision of 26 June 2015 has not been fully enforced and, as a result, it cannot receive EUR 104,936.89 from the amount initially reserved by bailiffs to cover the debt. They allege that the State has failed to comply with its positive obligations to ensure a system of enforcement of judgments and adequate supervision of bailiffs’ services.

QUESTIONS TO THE PARTIES

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

2. Was the applicant company’s inability to fully enforce the decision of 26 June 2015 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)?

3. 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 company’s property rights (see Kotov v. Russia [GC], no. 54522/00, §§ 109-15, 3 April 2012; Blumberga v. Latvia , no. 70930/01, § 67, 14 October 2008; and Fuklev , cited above, § 91)?