1 Introduction and General Remarks
- The law of enforcement proceedings is a key subject of procedure.
Enforcement involves the machinery of society operating within the legal regime of the rule of Law and
procedural fairness. Actions that undermine orders of the court or other enforceable titles have moral,
social, economic, and even political connotations.
- This report discusses the procedure by which judgments and other
enforceable titles are enforced against the debtor for the benefit of individual and singular creditors
and the conflicts between their fundamental rights. This process is distinct from insolvency procedures,
which tend to a collective satisfaction for all creditors with a claim against the same debtor. Both
procedures have common characteristics and features, and they are interconnected. Each insolvency
regulation is drafted in the manner most regarded, in a particular legal system, as the most suitable to
effectively pursue the underlying policy and prevailing purpose of the insolvency law, be it the
protection of the debtor or his creditors or the preservation of employment.[1]
- Enforcement proceedings entail coordination with,
and cooperation of, separate enforcement bodies. The public interest in legal certainty, transparency,
and respect for fundamental rights assumes a major role in the enforcement process.[2] The singular civil
enforcement process encompasses relevant features both of substantive private and procedural law. The
efficacy and efficiency of enforcement proceedings are an important key point to evaluate the rule of
law.[3]
- The limitation of party autonomy in certain areas of enforcement
(for example the possibility of creating and granting, without additional safeguards, an enforcement
title different to a judgment), aims to protect the debtor against unjust enforcement proceedings
against them.[4] This does not prevent the parties from agreeing, as is permitted in declaratory
proceedings, to an advance waiver of the use of certain defences or exceptions that remain within the
framework of respect for autonomy and free disposal of the parties. In the enforcement context, there
are also other limitations seen in the enforcement context on certain objects or the choice of the
enforcement proceeding to be applied, as well as the exclusion of the possibility of creating or
abolishing (or even annulling) the right of the parties to access the enforcement proceedings as
creditor, debtor or interested third party. Enforcement proceedings should be a place for the rights of
both parties and their interests to be balanced adequately.[5]
- The enforcement proceeding is deeply linked with both substantive
and procedural law.[6] In order to commence enforcement proceedings, a legally enforceable title is required.
Enforcement in a narrow sense means the right to start enforcement proceedings, and, in a broader sense,
refers to the totality of substantive and procedural legal consequences originating from the legal
relation, which affect the rights and obligations of the participants of the enforcement proceedings.
One characteristic element of this totality is the application of sanctions, which may be directed
against persons or property. Within these sanctions, the creditor shall, within the legal framework,
have the privilege to specify the type of property of the judgment debtor from which to secure
enforcement of his claim. In the course of judicial enforcement, executive force may be employed to
force a party compelled for payment of money or for some other conduct to fulfil such obligation. The
essence of judicial enforcement lies in the application of executive force. This takes place only in the
event of the lack of voluntary performance; executive force is resorted to, in any case, secondarily,
with a subsidiary character. The executive force is a provision expressly serving the purpose of the
protection of creditors and the general interests of the rule of law so that the bailiff does not need
to send a second, completely unnecessary warning to the debtor to perform voluntarily, but instead he or
she appears at the debtor’s apartment and seizes the debtor’s personal assets to cover the
debt.
- It is perhaps this difficulty of plurality and the
heterogeneity of adjudication that would permit a double procedural-material review and new litigation
at the enforcement stage. In some legal systems, the diffuse, nebulous and sometimes contradictory
results of declaratory proceedings could negatively affect the celerity and organization of the
enforcement proceedings. This may explain why in some legal systems it is strange and rare to find a
theorized treatment of the Civil Enforcement Procedural Law as a systematized field. This was observed
and highlighted in 1986 by the German professor Stürner[7] in relation to the research and academic work on
civil enforcement in Germany at that time. The same observation had been noted thirty years before in a
classic work on Enforcement Law in the Spanish tradition by Carreras[8]. These findings remain true today, and the publications and
research on the subject vary greatly in quality, quantity and relevance between the different families
of law. Is the law of civil enforcement, with the very broad exception of certain legal systems, an
exotic and under-explored field? If the answer - as I suppose - is yes, would the dimension of
creditor-debtor fundamental rights provide a new and attractive focus to revitalize the interest and
relevance of the subject? A basic work with entire comparative contributions on this subject is a
collective book containing essays in honour of Professor Gaul, published in 1996 with more than 700
pages under the editorship of the Greek Professor K Beys.[9] This book provides a comprehensive study on the
violation of fundamental rights and enforcement proceedings.
- The conflicts between the fundamental rights of the debtor and the
creditor’s right of enforcement were initially discussed most deeply in the German
bibliography[10],
given that they, were mainly German Constitutional Court decisions that described the minimal standards
to be recognized from the debtor’s perspective: human dignity, the protection of property, the
inviolability of personal privacy, the inviolability of the home, personal freedom, the protection of
the family, and personal data protection.[11] Particular cases were connected with a core of
questions. Examples include: should a forced sale with an auction price under 50% of the current market
value not be tolerated considering the debtor’s right to be fully heard? Should a bailiff (as a
judicial assistant) be able to search a home without judicial authorization? Should certain penalties
and coercive measures imposed on a debtor for not complying with an ‘abstain from doing’
judgment be tolerated? Should the personal situation of a debtor who is depressed and in suicide risk be
considered, according to the Social State principle?[12] Should proportionality be considered on a
case-by-case basis, according to constitutional standards, in the sense of weighing the harm to the
debtor against the benefit to the creditor? Should it be determined by the criteria of a Constitutional
Court, or by a detailed enforcement law regulation and the application of proportionality on a
case-by-case basis, according to the legislator’s use of the provision? The subject is part of the
connexion between Constitutional and Procedural Law.[13]
2 Constitutionality of the Enforcement Procedure in the Framework
of Fair and Due Process of Law
- It might be said that civil procedure could achieve its goal only
with a judgment which recognizes a substantive right, but such a statement would be
incorrect.[14] An encounter between the process and the material right should materialize, and this
encounter culminates in the concrete factual refund of the substantive legal order violated: the
effective satisfaction of the right claimed, recognized, and declared.[15] The general principles of civil
procedure are so general that they are also applicable to the enforcement stage. Or it may be possible
to find some special principles applicable to the enforcement. These may have certain similarities with
the so-called ‘formative principles of the civil proceeding’ applicable to the declaratory
proceeding, but with some autonomous features that could be applied in this special field of
enforcement.[16]
- Civil enforcement is comprised of a plurality of discontinuous
procedural acts without a uniform nature, which is in contrast to declaratory proceedings and their
homogeneity: In the implementation of a judgment, there is a decision of the court, ‘an
enforceability declaration’ which this renders enforcement activities permissible and gives legal
support to the executive activities of the State so long as they are carried out within the framework of
legality and according to a constitutionally based fair and due process.[17] The coercive activities might
primarily affect the debtor’s assets and secondarily affect the debtor personally by, for example,
restricting their freedom.[18] Additionally, a third possibility is that third-party interests may be affected by
enforcement proceedings. Third parties may, therefore, seek to be incorporated into the proceedings, to
have their rights adjudicated in the declaratory and ancillary proceedings. This will arise, for
example, where the third party alleges an independent, exclusive right to the assets disputed by the
original creditor-debtor parties.
- If we need to test the proportionality of the enforcement
proceeding in general, we could do it. The balancing of legal principles is a highly significant method
of applying the law.[19] Based on an understanding of legal principles as optimization
requirements, the article presents the laws, structures and axioms of balancing, on the basis of which
the balancing as a whole can be described as a rational, transparent and efficient method. Then the
handling of knowledge uncertainties and combinations of principles as well as the role of abstract
weights and formal principles are discussed.[20] The proportionality test of the limitation of
fundamental rights within the enforcement proceedings needs to mention the four
sub-components[21]:
(i) the measure should have a proper purpose; (ii) the measures undertaken to such a limitation should
be rationally connected to the fulfilment of that purpose; (iii) the measures undertaken should be
necessary in that there are no other alternative measures similarly for the purpose with lesser harm;
(iv) the importance of achieving the purpose and the social importance of preventing the limitation of
fundamental rights should be balanced (proportionality strictu sensu).[22] This chapter deals with the
general constitutional foundation of enforcement proceedings. The proper purpose is the protection of
fundamental rights of one party (creditor) to claim the enforcement and the use of all means of
enforcement to satisfy his right. The modern constitutional theory recognizes positive and negative
constitutional rights and stipulates a really wider judicial review of the law’s constitutionality
around the main issue: describing the scope and limitations of constitutional rights.[23]
- The limitations of constitutional rights are sometimes ruled in
general in the Constitution but certainly in the sub-constitutional law (statutes or common
law).[24] The
enforcement proceedings impose limitations to fundamental rights so the question arises whether these
limitations are in accordance with the Constitution and whether this control is centred on
proportionality.[25] We could test the constitutionality of the entire enforcement proceeding in the
framework of the rule of law, but we could also test each enforcement act. To answer the question of the
conflict between the fundamental rights of creditor and debtor, the main problem is the limitation of
the fundamental rights.[26]
- The organic and procedural structure of an enforcement proceeding
has to be rational and adequate to that purpose. Finally, the main problem could arise in the test of
the balancing of interests and preventing unnecessary limitation of fundamental rights (to be analysed
in the next chapter). Although the constitutional theory behind the enforcement might be obvious, it is
a prerequisite to dealing with the particular, case-by-case instances of conflicts between the
fundamental rights of the creditor and debtor.[27] It also provides a general framework in which
to find answers to complex problems arising within the singular civil execution process. First, it must
be remembered that enforcement is a complex relationship with at least three centres of interest: the
creditor, the debtor and the enforcement organ.[28] Secondly, we will set out the principles, and
then develop a couple of principles that are common to declaratory proceedings.[29] Finally, we will consider the
special principles of enforcement, which have been influenced both by Public and Private law.
- To deal with the conflict between fundamental rights of creditor
and debtor in the enforcement process, it is important first to explain the general and comparative
foundations and the organic structure of the enforcement procedure. (i) The enforcement might be
court-centred, bailiff-centred or mixed, and might be organized on a decentralized or centralized model.
These aspects are highly relevant to the dynamics of the proceedings. (ii) Because of both the public
law and procedural aspects of the law of enforcement, there are prerequisites to be satisfied by the
creditor before he may commence enforcement proceedings in which he has a dominant position. He needs an
enforceable title, and there are some further (more or less detailed) requirements.
- Enforcement procedures integrate fundamental
procedural rights. In general, the creditor has a right to performance. The right to justice includes
the right of access to the courts, the right to a fair trial and the right to enforce a judgment within
a reasonable time.[30] In France, this was solemnly enshrined in national law in Article 1 of the Law of 9
July 1991 on Enforcement Procedures regarding the execution of all obligations, which means the
obligations of judgments.[31] The protection of these rights is distinct from the legislative, doctrinal, and
especially functional and practical importance assigned to other rights or guarantees such as access to
justice and the right to an effective remedy. Furthermore, in Japan the right of access to the courts
(Sec 32 of Constitution of Japan) is normally considered as including the right to a speedy and public
trial by an impartial tribunal and the right to the execution procedure that realizes a right
effectively and efficiently (the right to an effective execution).[32] The same assertion can be found
at the procedural level in the Uruguayan legal system and the so-called right to
effective judicial protection. This right, widely recognized in international
standards, has been ratified by Uruguay, and the Art 8 and 25.1 of the Inter American Convention on
Human Rights. In the current Constitution, this right can be considered inherent to the human
personality or the republican form of government, and therefore tacitly covered by the constitutional
system (Art 72 of Constitution of Uruguay).[33] The Constitution of Portugal guarantees
everyone the right of access to a fair trial (Article 20). The procedural law recognizes the debtor the
full right to contest the enforcement action to defend himself. Furthermore, the debtor is guaranteed
supervision of executive acts and the right to complain about illegal or abusive executives acts during
the enforcement proceeding. Also, Art 118 of the Spanish Constitution makes it explicit that the State
is under an obligation to enforce the final judicial decision and in Art 24 Par I enlarges the right of access justice and to the court.
2.1 European Court of Human Rights on Enforcement Proceedings: Some
Cases
- The European Court of Human Rights has declared
that the fundamental right to effective enforcement forms part of Art 6 ECHR in a very extensive list of
leading cases[34],
beginning with Hornsby v Greece (1997), followed by
Guincho v Portugal (1984), Martins v Portugal (1988), Burdov v
Russia (2002), Bodan Vod Greek-Catholic Parish v
Romania (2013), Çaquir and Others v Turkey (2013) and also in
other cases not mentioned in this report.[35]
- In Hornsby v Greece (Judgment of 19 March 1997) as long as self-tutelage is proscribed, the States are
obliged by Art 6 of the ECHR to provide an appropriate organizational structure and procedure for the
fulfilment and satisfaction of the credit. The formula in this ruling says it all: It would effectively
become illusory if a state party could allow a final and binding decision to be reached if it is
eventually going to be inoperative. The execution of the decision integrates the right to a fair and
equitable trial.
- With this, the reasonable period of time becomes an imperative
applicable not only to the duty to judge but also to the duty of enforcing what is judged, and the means
that have as their object the satisfaction of the credit already recognized in a sentence cannot be
excluded. Otherwise, the failure of the system to function and the adequate protection of the
interests of the creditor and debtor would lead to the denial of justice (Horvat
v Croatia, Judgment of 26 July 2001).
- Even the European Court of Human Rights delves further into the
organization and institutional framework of the execution, identifying the systemic deficiency of a
legal system in relation to the malfunction of its internal legislation on execution. That affects a
large number of citizens who cannot be satisfied with their rights already declared in court
(Trana v Italy, Judgment of 16 January 2008). The
creation of effective procedures to reduce payment terms (only designed to work and thus be dissuasive),
help to stimulate the economy. It not only requires speed and efficiency, which means that we want to
achieve a result within a reasonable time and with greater economic efficiency (Mehmet v Turkey, Judgment of 17 October 2007). In Burdov v Russia (Judgment of 15 January 2009), the European
Court itself warned and urged the Russian authorities not to delay and proceed with the timely payment
of the debts that had already been established by the courts. In addition, it was recognized that, in
the face of such a delay, Member States are obliged to compensate the damages caused by the failure to
satisfy the credit. The compensable damages must include moral damage (which includes not only
uncertainty and anxiety, but also due protection to the sense of injustice) suffered by citizens.
- With regard to the specific performance and the measures of
coercion, the Court has also said that the purpose of such provision is to force the debtor to comply,
overcoming the resistance of his opposition or his carelessness, indifference or negligence. The purpose
of the sanction is not to compensate the loss suffered by the creditor to live, but to force the debtor
to comply, overcoming the resistance of his opposition or his carelessness, indifference or negligence
(Ignaccolo-Zenid v Romania (Judgment of 25 January
2000); and again incorporated in Ouzunides and others v Greece (Judgment of 18 April 2002)).
- In one example, the ECHR ruled that the refusal to enforce a
judgment ordering the destruction of a building depriving the applicant of the view and the light 14
years after the judgment was rendered is contrary to law enforcement within a reasonable time. A State
must facilitate a private person’s access to a court. It must ‘assist the applicant in its
efforts for the enforcement of judgments’ and is condemned even though the delay took its origin
in the lack of diligence of a bailiff. The execution must be complete, perfect and certainly not
partial.[36]
2.2 Interamerican Court of Human Rights on Enforcement Proceedings:
Some Cases
- The Inter-American Court of Human Rights has also considered the
existence of a right to effective enforcement. As an introductory proposal, it referred to ‘the
proceedings before the unjustified refusal to performance with a provision through which [the creditor]
seeks to break the will of the debtor by reserving the exercise of force by the State [...]’. The
lack of timely, reasonable and adequate satisfaction of a undoubted titled right (judicially-granted or
conferred by virtue of a provision contained in ‘general enforceable titles’) not only
violates the guarantee of effective legal protection, but is also contrary to access to justice, and the
fair and equitable process that is due as of right.[37] The constitutional issues involved in the
enforcement are linked to each other through their public character, both because of the public concern
and also given that the public may be affected by a state organ or authority. Furthermore, when
enforcement arises in private claims, the constitutional limitations and constraints on any public power
are applied to the enforcement. It must, however, be recognized that the enforcement body is involved in
the proceedings not out of self-interest but rather because of the creditor’s rights. The
enforcement proceedings should ensure the procedural fairness and equal treatment of the interested
parties.[38]
- The Inter-American Court of Human Rights in Five Pensionists v Peru (Judgment of 28 February 2003) declared the independence of the Judicial Power. At the
same time, the right to equality, which should support the parties in the process, is notoriously
violated, as the execution of the judicial sentence is subject to the will of one of them, paradoxically
the defeated party. In view of the above, the Court considered that at this stage there was a clear
breach of the aforementioned judgments issued by the Constitutional and Social Law Chamber of the
Supreme Court of Justice on 2 May, 28 June, 1 and 19 September and 10 October 1994, in favour of the
five pensioners. Given that there are already judgments issued in the development of guarantee actions,
which give protection to the status quo, the State
cannot deviate from said decisions under penalty of incurring violations of the right to property and
judicial protection.
- The Court has also recognized the substantive and procedural rights
to due and fair credit protection. In the leading case of Furlán and
family v Argentina (Judgment of 31 August 2012), the Court considered that
it was proven that, after an unjustified delay in the civil proceeding for damages, Sebastián Furlán had to initiate a second
administrative stage in order to obtain payment of the compensation awarded by court ruling.
Notwithstanding that the duration of said enforcement process was already jointly analysed in the
previous chapter, the Court will examine the following arguments: i) whether the execution of the
judgment was complete and comprehensive; ii) if the application of Law 23.982 of 1991 on
Economic-financial Emergency was justified in the present case, and iii) if the foregoing had an impact
on the right to property. From the facts described above, the Court considered that the execution of the
judgment that granted the compensation was neither complete nor comprehensive, since it has been proven
that Sebastián Furlan should have received ARS 130,000 and actually received approximately ARS
38,000, which it is an amount that is excessively less than that which had been initially ordered.
- Taking the foregoing into account, the Court considered that in the
case at hand, the execution of the judgment that awarded the compensation to Sebastián Furlán was not effective and led to his lack
of judicial protection, since it did not fulfil the purpose of protecting and compensating the rights
that had been violated and that were recognized through the court ruling. Based on the foregoing, the
Court observed that in this case there was an interrelation between the problems of effective judicial
protection and the effective enjoyment of the right to property. In effect, when applying a
proportionality judgment to the restriction of the right to property that occurred, it is found that Law
23.982 fulfilled a conventionally admissible purpose, related to the handling of a serious economic
crisis that affected various rights of citizens. The means chosen to face this problem could be ideal to
achieve this end and, in principle, it can be accepted as necessary, taking into account that sometimes
there may not be less harmful alternative measures to face the crisis. However, based on the information
available in the file, the restriction on Sebastián
Furlán's right to property is not provided in the strict sense
because it did not contemplate any possibility of application that would make the reduction in the
compensation amount that corresponded to him less burdensome. There is no type of pecuniary or
non-pecuniary forecast in the file that could have moderated the impact of the reduction in compensation
or other types of measures adjusted to the specific circumstances of a person with various disabilities
that required, for their due attention, of the money already provided by the court as an acquired right
in your favour. In the specific circumstances of this case, the non-payment of the full sum ordered by
the court in favour of a poor, vulnerable person required a much greater justification for the
restriction of the right to property and some type of measure to prevent an excessive effect. Due to all
the foregoing, the Court considered that the right to judicial protection and the right to private
property, enshrined in Articles 25.1, 25.2.c and 21, in relation to Article 1.1 of the American
Convention, were violated in prejudice of Sebastián Claus
Furlán.
- In addition, the Court stated the violation of other judicial
guarantees. In this point, the Court analysed the arguments presented by the parties and the
Inter-American Commission regarding: i) Sebastián
Furlán's right to be heard, and ii) the non-participation of the
counsellor for minors in the civil proceedings for damages and damages. Likewise, the Court reiterated
that boys and girls exercise their rights progressively as they develop a greater level of personal
autonomy. Consequently, the applicator of the right, whether in the administrative or judicial sphere,
must take into consideration the specific conditions of the minor and his / her best interests to agree
to his / her participation, as appropriate, in the determination of his / her rights. Considering this,
the minor shall seek greater access, as far as possible, to the examination of her own case. Likewise,
the Court recalled that the Committee on the Rights of the Child has indicated that Article 12 of the
Convention on the Rights of the Child not only establishes the right of each child to express their
opinion freely in all matters that affect them, but also the article covers the subsequent right to have
such views duly taken into account.
- In Mejía Idrovo v
Ecuador (Supervision decisions of 4 September 2012), the Court has decided
on the judicial protection and effective judicial protection in the enforcement of judgments (Article 25
of the American Convention). In view of the facts with respect to which violations of Article 25 of the
Convention are alleged, the Court observed the following points of controversy: a) the suitability and
effectiveness of the unconstitutionality remedy; b) the scope of the duty to repair said remedy; c)
compliance with the judgment of the Constitutional Court, and d) execution of the judgment of
non-compliance issued by the Constitutional Court. Based on the foregoing, the Court analysed in the
following whether: a) the unconstitutionality appeal provided judicial protection in accordance with the
provisions of Article 25.1 of the American Convention, and b) whether effective judicial protection was
provided by the authorities for the enforcement of internal judgments in accordance with Article 25.2.c)
of the Convention. Regarding the suitability of the unconstitutionality appeal, the Court finds that
there is no controversy between the parties as to whether said appeal was adequate to protect the rights
that the alleged victim alleged before the Constitutional Court. However, the State has stated that Mr
Mejía Idrovo should have alleged paragraph 2 of
Article 276 of the current Constitution and not paragraph 1, since the latter could only suspend its
effects and not have retroactive effects. Likewise, the State stated that Mr Mejía Idrovo should have exhausted a civil action for
damages against the State. In this regard, the Court is subject to the decision and scope of the
Judgment issued by the Constitutional Court itself on 8 October 2009, through which it interpreted the
Judgment of 12 March 2002 of the Constitutional Court and referred to the scope of the reparation and
argued that this includes the reinstatement of Mr. Mejía
Idrovo without considering this as a retroactive effect as well as the
recognition of his economic rights and the right of repetition. Due to the foregoing, the Court found
that the unconstitutionality appeal was the appropriate remedy suitable to protect the rights infringed
in this case.
- Regarding the effectiveness of the remedy, the Court has
established that for the remedy to be effective it is not enough that it is provided for by the
Constitution or the law or that it is formally admissible, but that it must be truly suitable for
establishing whether a human rights violation has occurred and for providing what is necessary to remedy
it. Those remedies that, due to the general conditions of the country or even the particular
circumstances of a given case, are illusory cannot be considered effective. Specifically, the Court
considered that in order to maintain the useful effect of the decisions, the domestic courts, when
issuing their rulings in favour of the rights of individuals and ordering reparations, must establish
clearly and precisely - in accordance with their scope jurisdiction - the scope of reparations and the
forms of execution thereof. In accordance with the standards of this Court and international human
rights law, the scope of these measures must be comprehensive in nature, and if possible, return the
person to the state before the crime occurred (restitutio in
integrum). Among these measures are, depending on the case, the restitution of
goods or rights, rehabilitation, satisfaction, compensation and guarantees of non-repetition,
inter alia. In the case at hand, once it was established
that the unconstitutionality appeal was adequate to remedy the rights alleged by Mr. Mejía Idrovo, the Court observed that the Constitutional Court
ruling of 12 March 2002, although it declared unconstitutionality of the executive decree of
availability and dismissal, as well as generally ordered that the damages to the alleged victim be
repaired, the alleged victim lacked precision and clarity in determining the scope of the referred
reparations and their manner of execution. Subsequently, the Order of the President of the Court of 30
May 2002, contributed to further confuse the scope of the judgment delivered by the plenary session of
the Constitutional Court by restricting its application unilaterally, declaring it non-retroactive and
therefore preventing the reinstatement of the plaintiff to the Armed Forces. However, later the
Constitutional Court clarified the meaning and scope of what was ordered in the judgment of 12 March
2002.
3 The Fundamental Right to Enforce a Claim
- Civil enforcement has increased in importance not only within the
European Union (as a result of the need for the free (and secure) movement of goods and the enforceable
protection of credit), but also in Latin America, Asia and Oceania, as academics in these regions became
increasingly aware of its legal significance and socio-cultural-economic dimensions.[39] Constitutional
imperatives and human rights both at the regional and national level impose on States the obligation to
provide the right of access to justice, to claim, to defend oneself against another, to provide evidence
and to participate in all stages that may influence the judicial decision. These obligations have
assumed increasing relevance at the later stage of enforcing the judgment handed down.[40] Legal systems are
based on the idea that all subjective rights can be enforced unless otherwise provided for in the law,
with these exceptions being of limited importance, and therefore legal systems must contain a detailed
set of rules which define the creditor’s rights and strike a balance between effective enforcement
and protection of the debtor.[41] When the court decides that enforcement of a
judgment or order is to take place, there are legal remedies available to creditors to enforce a debt,
and, although the related procedures are frequently time-consuming and potentially costly, and there is
no guarantee that the creditor will actually receive all of the funds owed them.
- The creditor of money judgments can initiate
enforcement according to various processes: seizure of the debtor’s goods, attachment of earnings
orders, garnishing proceedings (third party debt orders), or by charging orders against real property. There are also special procedures relating to
the recovery of movable and real estate property. Non-money debts can also be enforced. In such cases,
non-compliance with an order or an injunction can be sanctioned by a range of coercive measures. In some
systems, these may have a punitive nature, for example, the English contempt of court proceedings
(committal proceedings). The guarantee of the
fundamental right to an effective judicial remedy provided by Article 6 ECHR is not limited in its
scope to the declaratory phase, but is also applicable to the successful completion of any eventual
enforcement proceedings. Most other subjective rights also enjoy the protection of fundamental rights
enshrined by the Constitution and Human Rights Conventions.[42] The Article 6 guarantee does recognize that in
some cases, these fundamental guarantees must be limited where conflict arises with the fundamental
rights of others.[43] It is a constitutional right that claims supported by relevant substantive law should
be effectively enforced. The enforcement is applied to claims arising from a private as well as a public
law relationship.[44] There is a connection between the fundamental right to judicial protection and the
right of property (from the creditor side).
- Any
subjective right can be pursued with the help of the
courts and the state officials who are competent for compulsory enforcement. This is true regardless of
whether the debtor is a private person or the State, ie,
the Federations, a State or a subdivision of the Federations, like a federal authority, or a subdivision
of a State, like a State authority or a municipality; this is also applicable to the centralized and
unitarian State organization. There are some special rules concerning the enforcement of claims against
the State; however, enforcement against the State only occurs very rarely, as the State normally abides
by final judgments of the courts. According to the German Law, the creditor has a fundamental right to
protection by the judiciary (Justizgewährungsanspruch). The legal scholars remark that most subjective rights are also backed by individual
constitutional guarantees. All substantive rights which have an economic value are protected by the fundamental right to property
guaranteed by Art 14 of the Federal Constitution (Grundgesetz, GG). Art 14 GG protects the right to property in a large sense, including all claims
against debtors based on substantive (private or public) law.[45] The only small exception to the enforceability
of all ‘substantive rights’ are a few ‘natural obligations’.[46]
- Art 14 GG protects property in wider sense. It is not only
applicable to protecting all claims or assets which have a pecuniary value against expropriation and
other forms of disturbance by the State, but is also interpreted to require the State to provide for
effective means of protecting these claims.
3.1 The Structure and Cultures of the Enforcement: Complex
Relationship and its Principles
- The so-called principles of singular civil enforcement are useful
to explain and support both the structure and the dynamics of enforcement proceedings. The principles
allow for a better explanation and comprehension lege lata as lege ferenda of the singular
civil enforcement. In this area, we are not usually concerned with efficient credit protection, or costs
but we are aiming to achieve a suitable framework for the exercise of executive power and coercion of
the State over the person and property of the debtor.[47]
- Should we therefore test enforcement law by application of the
proportionality principles of constitutional law? Faced with this question, it could be argued that
there would be damage suffered by the procedural principles and maxims if they were not compatible with
proportionality, and it could even be claimed that they go against principles and rationales applicable
on a much more general level to the legal system, such as justice, fairness or the guarantee of the fair
and due process of law. A legal system without principles is destined to degenerate and lead to anarchy,
injustice, or lack of consistent observance of the law as a result of the loss of legitimacy.[48]
- Enforcement necessarily entails the exercise of executive actions.
This implies the existence of an enforceable title and also a procedure with formalities that must be
observed, which are not required in declaratory proceedings. The first requirement of the effective
action is primarily an enforceable title, which is usually written. Two topics deserve special
attention. First, the constitutional principles considered in the underlying dispute and adjudication in
the declaratory proceeding do not arise at the enforcement stage. However, secondly, certain principles
pertinent to the declaratory proceedings could be applied to the enforcement proceedings. Something
similar to this has happened with celerity and procedural economy, which should also now be found in
enforcement proceedings.
- The importance of the principles or general foundations in the Law
of Enforcement assumes a key role when they relate to the triangular relationship. (i) The creditor
requests the enforcement organ to act in enforcement proceedings. Where there is still a lack of
compliance by the judgment debtor, the enforcement organ uses all suitable mechanisms and adequate
proportionality to achieve the satisfaction of the creditor’s rights.[49] (ii) The relationship between
the enforcement organ and the debtor or person against whom judgment has been executed cannot be
explained only using the classic principles of the due and fair process of declaratory proceedings. It
is the debtor who is going to be limited in his assets and personal sphere. (iii) The substantive and
procedural relationship between the creditor and debtor (obligation) must also be remembered, given this
relationship increases the legitimacy of aggression towards the personal or property sphere of the
debtor. I will now discuss the delicate field of fundamental rights and the constitutional justification
for benefitting the creditor at the expense of the debtor. The Spanish enforcement proceeding is
synthesised in the inspiring principle of protecting the creditor’s interest by fully enforcing
them while minimizing the damages suffered by the debtor (proportionality).[50] This starting statement must be
qualified: The constitutional tests and standards might not be directly applied to the determination of
whether enforcement should be permitted, but they are relevant because the Law of Enforcement derives
its normative legitimacy from acting in accordance with Constitutional Law.[51] If an enforcement act limits a
fundamental right, its adequacy and rationality (proportionality) could be tested according to, firstly,
the Law of Enforcement, and secondly, constitutionality standards.[52]
- Where there is no act of opposition by the debtor or a third party,
the enforcement procedure can theoretically be divided into three distinct sections. There may be an
additional section when there is opposition to the enforcement by the debtor or an interested third
party. The first phase starts with the request for enforcement or executive claim and ends with the
delivery of the order of compliance and request to perform. Prior to this first phase, some legal
systems have a pre-phase one step to confirm the existence of an enforceable title. The second phase
consists of two subphases that occur simultaneously and in parallel. The first sub phase concerns
preparatory measures to enforcement, which acknowledge the existence of a threat to the debtor’s
assets and protect against the risk of their dissipation (attachment orders, interim administration,
garnishment etc).[53] In parallel, the second subphase permits the debtor (the executed) or third parties to
assert their respective opposing positions.[54] It is rarely the case that such opposition is
successful, but such challenges are discussed below as a fourth possible stage. The third phase entails
the discharge of assets (forced auction) to obtain sufficient liquidity to satisfy the creditor. By
adapting the object of enforcement and the precise claim, this basic structure can also be applied
mutatis mutandi (with different enforcement measures)
to non-monetary obligations.
- The eventual fourth stage concerning the
opposition either of the debtor or of third parties, will involve the initiation of ancillary,
simplified declaratory proceedings, including an evidentiary phase in order to reach a final decision.
During this stage, the procedural principles developed for declaratory proceedings are applied. The
present work suggests that these principles may share some common aspects with the singular civil
enforcement process. Declaratory proceedings require the necessary frameworks to be in place to hear
contradictory arguments and to adjudicate on questions of rights. Formality is common in the declaratory
proceeding, but it is also used with certain specificity in the enforcement stage. Even if the creditor
encourages swift progress through the different stages, the enforcement process will be notoriously
marked by a limited officiality.[55]
3.2 General Regulation of Civil Enforcement Proceedings
- The substantive classifications with the most practical relevance
in all systems are the division between monetary (debt collection) and non-monetary claims. This
supports the distinction between the monetary and non-monetary enforcement, and between direct and
indirect enforcement, which relates to the tools available to obtain performance from the recalcitrant
debtor. Enforcement proceedings are organized and could be classified according to different theoretical
or practical criteria, and the observation and respect of the enforcement rules should also be checked
at the end. The criteria would be:[56] (i) the type or kind of claim to be enforced;
(ii) the object upon which the enforcement is levied; (iii) the kind of enforcement activities
(specific/non-specific performance, direct/indirect enforcement or the use of coercive measures); (iv)
the kind of enforceable instruments that can give rise to enforcement proceeding (judgments or
extrajudicial instrument); and (v) the enforcement organ for each enforcement.
- The main criterion considered in the Central European Legal System
is the nature of the claim. For example, German Law distinguishes between enforcement for the payment of
money, for the delivery of property, and for the doing of or abstaining from any act.[57] The Romanic Legal
Family deals with non-monetary and monetary claims in the same way but is strongly concerned with the
different forms of proceeding to obtain money, which vary according to the object against which
enforcement is sought. Here, the object of enforcement is deemed more important than the nature of the
claim to be satisfied. The ground of distinction is between enforcement against a person (natural
enforcement/ en nature/ in
natura) and enforcement against assets. Many Latin-American Legal
Systems[58] use
the type of enforcement title as the main distinction (eg, judicial and extrajudicial) with different
procedures and scope of review and remedies available to different forms of title.
- English Law[59] considers the different kinds of assets upon
which the enforcement is levied, and there are different procedures and distinctions integrated into an
enforcement by officers and by the courts (High or County). Although the old distinction between equity
and common law has been lost in the USA and in England, the remnants remain in relation to the
enforcement proceeding for equitable remedies.[60]
- The parties involved in enforcement proceedings may be considered
in a wide or narrow sense. They may include only those directly involved in the enforcement (the
creditor and debtor) or they may include all persons who participate in the enforcement, for example,
the bidders in the forced sale, any concurrent creditors against the same debtor, or a third-party
garnishee (a person who is the debtor’s debtor). Even though compulsory enforcement primarily
serves the interest of the creditor, the enforcement also takes into account the interests of the debtor
and protects him or her from unfair or disproportionate enforcement. The protection of the debtor can
also be traced back to the catalogue of fundamental rights in the German Constitution according to the
German Constitutional Court.[61] Special interest surrounds the question concerning enforcement against the State and
public companies. This question is important from the creditor’s point of view because his rights
might be protected more or less effectively when the debtor is the State, from whom the fundamental
right to enforcement could potentially prove problematic.[62] From the constitutional perspective, it could
be difficult to hold the State as debtor, and therefore to enforce a judgment is complicated. In the
Romanic and Latin-American systems, this entails special, indirect enforcement proceedings, where no
direct coercion is allowed to compel performance from the State. The Central European legal systems
allow (with less complication) enforcement against the State.[63]
- Let us mention some regulations and ECtHR cases. In Germany, the
claims of a private party against ‘the State’ arising from public law relationships are
normally satisfied once there is a final decision.[64] In relation to Germany, it should be noted at
the outset that the Federation and the States and their agencies normally fulfil claims that have been
determined in a final judgment or for which there is another enforceable title. Thus, enforcement
against the State does not play an important role. In German civil matters as well as in some public law
and social security matters, there are a few special rules for enforcement proceedings concerning a
monetary claim against ‘the State’.[65] Monetary claims against the State are most
commonly based on public law relationships. In these cases, the first instance court assumes the
function of a central authority. It has to warn the debtor and –in line with § 882a Code
of Civil Procedure (GCCP, Germany) – may not order enforcement measures against objects which are
indispensable for the fulfilment of the debtor’s public function or if the enforcement measures
sought by the creditor would contradict the public interest. Furthermore, coercive measures against
Federal agencies based on public law claims are, in principle, excluded.[66] Finally, in Argentina, the
enforcement against the State has become a complex enforcement regime nowadays, which was subjected to
creditors, who in order to give effect to favourable judgments must respect certain terms and conditions
that differ and impede the enforcement.[67] The enforcement against the State is primarily
governed by the Argentinian Supreme Court decision ‘Pietranera’,[68] which established the doctrine that the declarative nature of recognized conviction and
that the individual cannot proceed to immediate enforcement.[69] Additional regulation until today has made the
situation even more complicated with regards to the restriction to order provisional measures against
the State. The ECtHR has decided in cases connected with the ‘debtor State’ (Pashov and Others v Bulgaria (Judgment of 5 February 2013)[70] and also Marinković v Serbia (Judgment of 22 October
2013)[71]).
3.3 The Enforcement Body
- The enforcement organ consists of the persons,
officials, and individuals (judges/master/bailiff) who intervene in the enforcement proceeding. Despite
the obvious assumption that the debtor’s assets are not to be found in the judicial office, all
enforcement systems (even those which are court-centred) need the necessary personnel (of varying
degrees of specific qualification) to assist, especially in relation to material enforcement measures to
be taken against the debtor. The discussions of the professionalisation of enforcement organ like the
French Commissaire de Justice (before Huissier de Justice) or the Portuguese or Dutch Bailiffs is a central
point to bear in mind. Constitutional issues arise when considering whether a system is effective at
protecting the contradictory debtor-creditor interests. There is no case directly addressing the issue
whether and to what extent extra judicial enforcement proceedings are compatible with the Convention. In
Annoni di Gussola et al v France[72], the Court expressed reservations against a
‘privatization’ of justice. However, this decision did not deal with enforcement
proceedings[73] but with the striking of a cassation on motion of the defendant in cassation on the
ground that the judgment of the lower court was not complied with. What aroused the Court’s
criticism was that a measure in the public interest such as the temporary striking of a cassation was
conditioned upon a motion by the applicant’s opponent. This decision, therefore, is clearly
limited to the facts of the case before the Court and provides little guidance for the permissibility of
extra-judicial enforcement proceedings under the Convention.
- Since Article 6 only applies to final determinations of dispute,
thus requiring the existence of an actual dispute, no prior judicial authorization is necessary for
enforcement proceedings. Thus, it seems that extra judicial enforcement proceedings are in line with
Article 6 as long as the right of access to a court under art 6 ECHR is not violated. This is also true
for enforcement proceedings entrusted to private professionals like the huissier/commissaire de Justice (bailiff/court officer) in Latin
countries and the Scottish sheriff’s officer. If,
however, a debtor contests his obligation (and there has not already been a judicial decision in a prior
proceeding), there has to be court proceeding available to decide on the parties ‘civil rights and
obligations’.
- It is likely, however, that the Court will view the activity of
private individuals acting without prior court authorization with more scrutiny in light of Article 8
compared to searches and seizures performed in the exercise of a valid court order.[74] Furthermore, often
domestic constitutional law will place limits to the
exercise of what are essentially governmental functions by private individuals.[75] Indeed, it can well be argued
from a domestic civil law point of view that the enforcement of court decisions belongs to the core of
State functions and cannot be left to private individuals.[76]
- A doctrine in Spain and the Latin-American systems addresses a
highly centralized court system and uses references to this to support this option against any kind of
enforcement carried out the judiciary, including where the judge only has to order the beginning of the
enforcement. In these court-centralized systems, all additional enforcement activities are performed by
auxiliary officers[77], and the Bailiff model is deemed a dangerous privatization of an exclusive judicial activity
(enforcement) and for this reason could be held unconstitutional. A similar discussion, albeit with a
specific difference, took place in Germany with regard to the liberalisation of a legal profession of
the ‘Gerichtsvollzieher’.[78] It should be noted that in bailiff-centred
systems the parties can request the court to control of acts of the bailiffs. The need for transparency,
efficiency and fair treatment of a claim in enforcement proceedings remains as valid for a court-centred
model as for a bailiff-centred model. The court-centred model reflects the ‘constitutional
principles’ regarding who should be the enforcement organ, but the system can be objected to from
the perspective of efficiency, effectiveness, and transparency regarding the best interest of both the
creditor and debtor.[79]
- Thus, there are judicial systems in which the enforcement organ is
a court concerned to enforcing judgments and other enforceable titles. Spain, Italy, Central and South
American countries are high court-centred systems based on certain constitutional imperatives, which
consider enforcement as an adjudicative task that is a continuation of the declaratory
proceedings.[80] It should be remarked that the court activity is in fact delegated to the
court’s assistants who have different and varied training and limited discretionary powers in
relation to the enforcement. The role of the judge is concentrated in the formal direction and control
of the execution. He acts only when a conflict arises or to order coercive or compulsory
measures.[81]
- These models can be evaluated based on three
relevant vectors as follow: (i) Organic-institutional Vector (legal framework of the organic function
within the institutional model, control, responsibility, and required level of training); (ii)
Functional Vector (functional competence in the implementation and beyond (official business),
dedication and unofficial activities, implementation of technologies); and (iii) Financial Vector (with
fees, without fees and a combinatory system). Relevant to this study is the World Bank report on costs
of implementation and enforcement officers, with further evidence to analyse each potential model. In
conclusion, support for the transparency, efficiency and the whole enforcement organ favoured the
bailiff-centred model.[82] Furthermore, there are recommendations in Europe for alternative models to the
court-centred approach.[83] As conclusions, the main recommendations are drawn from comparative experience based
on recognised good practice outlined by the CEPEJ.[84] The bailiff-centred model needs special
attention for the checks and balances in place, control and deontological aspects already in place.
- In the more than 40 years since its adoption, the ECHR has also
significantly influenced civil procedure in all European countries. While the right to be heard,
generally expressed in the maxim audiatur et altera pars, and general notions of procedural
fairness were by no means new to European States, the Convention has directed attention to many aspects
hitherto neglected and has brought about significant improvements and refinements. This influence,
however, has in large measure been restricted to the procedure until a judgment is rendered, whereas the
possible implications of the Convention for enforcement proceedings have received comparatively little
attention. Contrary to the considerable amount of literature dealing with domestic constitutional
guarantees and enforcement law, relatively little has been written on the influence of the ECHR in this
respect. Only in recent years in the case law of the European Court of Human Rights concerning the
enforcement of civil judgments have become more frequent.
- This paper will try to examine the influence of the ECHR in this
respect on an abstract level, not so much against the background of any particular legal system. In
light of the author’s legal education and professional background, however, naturally emphasis
will be placed on civil law countries and particular German speaking countries, ie, countries with whose
language and legal system I am most familiar with.
- Analysing the influence of the ECHR on enforcement proceedings is
difficult in several respects: One reason is that the wording of the Convention itself is not very
specific. Thus, as a main source of the law we have to rely on decisions of the European Court of Human
Rights. Unfortunately, the decisions of the Court often lack the precision of reasoning we are used to,
or at least expect from domestic courts. Thus, the factual and domestic legal background of many
decisions is not always entirely clear. What is more important perhaps is that the Court decides on a
case-by-case basis with the main emphasis clearly being placed on an attempt to do justice in individual
cases.[85] The
function of providing orientation for future cases and systematic development of the law seems to be of
secondary importance to the Court. An attempt to deduce general principles from the decisions of the
Court thus faces considerable difficulty. In many respects, the case law of the Court seems to resemble
the parts of a giant jig-saw puzzle which have to be assembled in order to get a full picture of the law
of human rights. While certainly not endeavouring to assemble the entire puzzle, this paper attempts to
explore how some parts of the case law may fit together. The requirements of the Convention in the area
of enforcement law outlined in this article not only provide a guideline for present day enforcement
practice, but may also serve as the framework for future reform in this field.
3.4 Substantive Guarantees
3.4.1 From Perspective of the Judgment Creditor
3.4.1.1 The
Protection of Property (Article 1 of Protocol No 1)
- Arguably the most important substantive guarantee
the Convention provides for a creditor is Article 1 of Protocol No 1, which guarantees the
‘peaceful enjoyment’ of one’s ‘possessions’.[86] This provision contains the only
protection of a purely economic right in the framework of the Convention.[87] While possessions in the sense
of Article 1 of Protocol No 1 are in the first place all those rights which are called property rights
in the national systems, the Convention guarantee is not limited to the technical notion of property in
national law. Rather, the term ‘possession’ or ‘biens’ in this provision has an
autonomous meaning. Therefore, the Commission has held from the very beginning that all rights which are
well-founded in national law can basically benefit from the guarantee of Article 1. They may be claims,
immaterial rights or even rights granted under public law.[88] Today it is well established that a
‘claim’ can constitute a ‘possession’ within the meaning of Article 1 of
Protocol No 1 if it is sufficiently established to be enforceable.[89]
- While the State cannot be held responsible for a
debtor’s lack of means,[90] failure to provide adequate means to enforce a
‘claim’ may constitute a violation of Article 1 of Protocol No 1. It has to be pointed out,
however, that the protection granted by Article 1 of Protocol No 1 is not absolute. Member States
clearly enjoy a wide margin of appreciation as to
the ways and means of enforcement of civil judgments[91] and as to ascertaining whether the consequences
of enforcement are justified in the general interest for the purpose of achieving the object of the law
in question. Particularly in spheres such as housing, which play a central role in the welfare and
economic policies of modern societies, the Court will respect the legislature’s judgment as to
what is in the general interest unless that judgment is manifestly without reasonable
foundation.[92] Thus, a temporary stay of enforcement proceedings for social reasons, eg, in eviction
proceedings, generally will be compatible with the Convention.[93]
- A violation of a creditor’s substantive rights
as protected by the Convention, therefore, will only be found in extreme cases which amount to a
de facto denial of enforcement. This may also be true if a retroactive statute were enacted
which, in effect, completely bars enforcement of a court decision.[94] Similarly, a gross violation of procedural fairness which results in an
arbitrary denial of an application for enforcement measures may amount to a violation also of a
creditor’s substantive rights.[95] Apart from such extreme cases, however, Article
1 of Protocol No. 1 offers little guidance as to the rights a creditor should enjoy in order to be able
to enforce a judgment debt. In most cases, therefore, the focus of the examination of the influence of
the Convention on enforcement proceedings will have to be directed at the applicability of the more
specific procedural guarantees set forth in Article 6.
3.4.1.2 The
Right to Respect for Private and Family Life (Article 8)
- Occasionally, a failure to enforce a judgment may also deserve
scrutiny in light of Article 8 ECHR.[96] Thus, in 2004 in Cvijetic v Croatia the Court held that a States’ failure
to enforce an eviction judgment may constitute a
violation of Article 8. This, however, apparently is only true if someone seeks to regain his private
dwelling place. Clearly, Article 8 is not available to the owner of an apartment who seeks eviction of a
tenant for failure to pay his rent without any intent of using the apartment himself.[97]
- Another area where Article 8 is of possible
relevance for enforcement proceedings is the enforcement of decisions on custody
and rights of access. It is well established that the enforcement of these
decisions falls under art 8 European Convention on Human Rights (ECHR).[98] Thus, in this case Articles 8
and 6 overlap to a certain extent.[99] While the essential object of Article 8 is to
protect the individual against arbitrary action by public authorities, there are also positive
obligations inherent in an effective ‘respect’ for family life.[100] The Court has repeatedly held
that Article 8 includes a right for parents to have measures taken that will permit them to be
reunited with their children and an obligation on the national authorities to take such
action.[101] While due to the special nature of these cases, any obligation to apply coercion in
this area is limited, the Court stresses that national authorities have to take all the necessary steps
to facilitate execution as could reasonably be demanded in the special circumstances of the
case.[102] Necessary measures may include the advice of social services, assistance of
psychologists or child psychiatrists.[103] Furthermore, public authorities have to
attempt to locate the child, at least to some extent, ex officio.[104] This position is likely to be
in conflict with the traditional view held in many countries that it is for the creditor to take the
initiative and point out to the authorities the location where enforcement measures are to take place.
3.4.2 From Perspective of the Judgment Debtor
3.4.2.1 The
Protection of Property (Article 1 of Protocol No 1)
- Article 1 of Protocol No 1 does not forbid enforcement proceedings
per se.
A seizure of assets belonging to the debtor in the course of enforcement proceedings does not constitute
an ‘expropriation’ in the sense of this provision. Moreover, such a measure clearly is in
the public interest and ‘provided for by law’. Several decisions of the Commission point out
that Article 1 of Protocol No 1 primarily is aimed at providing protection against arbitrary
expropriation, but not against lawful enforcement of a court decision Also the Commission in
dismissing the complaint as manifestly ill-founded indicated[105]. While this suggests that rights under this
provision may be violated if the debtor’s property is sold at an unreasonably low price, there is
arguably no general ‘proportionality’
requirement under the Convention. In this context, it has to be remembered that a debtor – as long
as he is solvent (otherwise he can, and in most countries has to, file for the opening of bankruptcy
proceedings) – can always avoid enforcement proceedings by voluntarily complying with the
judgment. Some national courts, however, assume that there is a prohibition under (domestic)
constitutional law against sales at an unfairly low price.[106]
- Some decisions of the Court even suggest that even
the seizure of goods belonging not to the debtor, but to a third
party may be permissible under certain circumstances.[107] In dealing with
fiscal rights of preference under Dutch law, the Court noted that the power of recovery against goods
which are in fact in a debtor’s possession although nominally owned by a third party was not an
uncommon device to strengthen a creditor’s position in enforcement proceedings; it could not be
held incompatible per se with the requirements of
Article 1 of Protocol No 1.[108] Thus, the right of landlords levying distress
for rent to seize any third party goods found on the rented premises under English law seems to be in
accordance with the Convention. The same holds true for the traditional civil law rule that a landlord
enjoys a lien ex lege on all goods found on the
premises occupied by the tenant (invecta et illata).
3.4.2.2 The
Right to Respect for Private and Family Life (Article 8)
- A search of debtor’s residence and subsequent
seizure of goods in the course of enforcement proceedings per se probably does not constitute a violation of art 8 ECHR. Even if this is seen as an
interference, it will generally be justified as being in accordance with the law and aimed at the
protection of the rights and freedoms of others. While there is no general warrant requirement under Article 8, recent case law suggests that a warrant may be required if the statute
authorizing the search and seizure lacks the necessary specificity.[109] Moreover, the absence of a
warrant may be factor considered by a court when assessing the overall circumstances of a search or
seizure.[110] Also, in many countries there may be a warrant requirement under domestic
constitutional law.[111]
- It should be noted that while the rights provided for by the
Convention generally also apply to legal persons, only individuals are protected by Article 8. Thus, according to a decision of the ECJ concerning the
search of business premises of Hoechst AG, Art 8 ECHR
does not include companies.[112]
3.4.2.3 Compulsion and Personal Liberty
- Enforcement law, particularly in connection with the enforcement of
judgments enjoining a debtor to perform, or refrain from certain activity, often provides for sanctions
in case the debtor fails to comply with the judgment. This is perfectly in line with the substantive
guarantees of the Convention. In fact, Article 5 paragraph 2 ECHR expressly even permits detention for non-compliance with a lawful court order or in
order to secure the fulfilment of an obligation prescribed by law.
- In other contexts, enforcement proceedings can also involve
elements of compulsion. A debtor is often required to provide information as to his financial situation
and the whereabouts of his assets. While such compulsion does not violate the Convention,[113] the subsequent use
of such information in a criminal proceeding may be ‘unfair’ under Article 6
ECHR.[114]
4 Procedural Guarantees: Applicability of Art 6 ECHR
4.1 Introduction
- While the substantive guarantees of the ECHR and Protocol No 1
generally pose few problems in the context of enforcement proceedings since they are not very specific,
they provide for numerous exceptions and States always have a certain margin of appreciation. The scope
of applicability of the procedural guarantees of Article 6 to enforcement proceedings is more difficult
to determine. Article 6 paragraph 1, first sentence ECHR provides: ‘In the determination of his
civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal established by
law’. As indicated in the introduction to this paper, the significance of this provision for
enforcement proceedings has received only little attention so far. National courts apparently have some
difficulty in determining the possible impact of Article 6 on enforcement proceedings, sometimes
resorting to apodictic, yet inconsistent if not outright contradictory views.[115] Yet the possible implications
of a full applicability of Article 6 to enforcement proceedings are quite far-reaching: If this
provision were fully applicable to enforcement proceedings, this would extend not just the reasonable
time requirement and some very general notions of fairness to enforcement proceedings, but all specific
guarantees Article 6 provides for, such as the requirement of a public hearing and of a public tendering
of the decision would also apply to enforcement proceedings. This would place many continental
procedural systems at considerable difficulty. Suffice it to point out that in some countries at least
certain enforcement measures, particularly seizures, may take place without prior court authorization.
Even in countries which require such judicial authorization, the decision is usually made in an
ex parte proceeding in which defendant is not heard.
Furthermore, in most countries the decision on such applications is rendered without a hearing taking
place; most countries resort to a mostly, if not exclusively, written proceeding.
- There may also be some less obvious consequences: In
Morel v France, a decision concerning a French bankruptcy
proceeding, the Court has expressed reservations against a judge opening a bankruptcy proceeding if he
had been involved in a reorganization proceeding previously.[116] Does this mean that, assuming Article 6 fully
applies to enforcement proceedings, the judge authorizing enforcement proceedings must not be the same
judge who rendered the judgment enforcement of which is now sought? The answer is probably no. As the
Commission has stated repeatedly: ‘It does not jeopardize the impartiality of a judge if he has
previously dealt with other cases brought against the same person’.[117] The decision in Morel, which applied principles originally developed in the field of
criminal procedure[118] to bankruptcy proceedings, should probably be limited to the specific facts of the
case. While in the case of a reorganization proceeding and a subsequent bankruptcy proceeding concerns
about an involvement in the judge in the reorganization proceeding may seem understandable (although, in
the authors opinion, a little far-fetched), this certainly does not apply to an order authorizing
enforcement proceedings. In light of both the routine character of such decisions and of the fact that
such decisions are rendered in a highly formalized proceeding leaving little room for judicial
discretion, it appears extremely unlikely that participation of the judge of the title stage in
subsequent enforcement proceedings is considered a violation of Article 6.
- Another problem that an application of Article 6 to enforcement
proceedings would bring about is the principle of ‘equality of arms’. This principle, which
the Court derives from the general fairness requirement of Article 6, can be defined as the requirement
to be able to comment on all the evidence adduced or observations filed with a view to influencing the
court’s decision. It is worth noting here that in many European countries, applications for the
authorization of enforcement proceedings are dealt with ex parte.
- In one of the few decisions squarely addressing the issue, the
Commission has held:[119]
As a general rule, enforcement proceedings following a civil court judgment do not
come within the scope of art 6-1 ECHR. They do not themselves determine a dispute relating to civil rights,
but presuppose a prior determination these rights by an independent court. However, in the context of
enforcement proceedings questions might have to be determined which involve a decision on civil rights of
the parties, such as partition of property.
- While the complaint was dismissed as manifestly ill-founded, the
Commission noted: ‘Insofar as the execution proceedings in the present case may be considered to
constitute the determination of civil rights, the Commission has accordingly examined this complaint in
light of Art 6-1 of the Convention’. In the following sections, an attempt will be made to explore
what decisions in an enforcement proceeding have to be regarded as determinations of civil rights and
obligation and thus requiring compliance with the guarantees provided for by Article 6.
4.2 Development of the Case-Law
- The European Court of Human Rights reads Article 6
broadly and interprets it as a guarantee of a ‘right to a court’[120], of which the right of access to
court is but one aspect.[121] While the wording of Article 6 seems not to cover enforcement proceedings, in a number
of cases the Court applied the reasonable time requirement to enforcement proceedings. In the opinion of
the Court, the right to a court guaranteed by Article 6 ‘would be illusory if a State’s
domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment
of one part. It would be inconceivable that Article 6 ECHR should describe in detail procedural
guarantees afforded to litigants – proceedings that are fair, public and expeditious –
without protecting the implementation of judicial decisions; to construe Article 6 as being concerned
exclusively with access to a court and the conduct of proceedings would be likely to lead to situations
incompatible with the principle of the rule of law which the Contracting States undertook to respect
when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded
as an integral part of ‘trial for the purposes of Article 6’.[122] While sometimes the Court
used the term ‘enforcement’ in a non-technical sense and subjected the implementation of the
decision of an administrative court reversing the decision of an administrative authority to the
reasonable time requirement,[123] several decisions of the Court actually deal
with the duration of enforcement proceedings in the technical sense of the word.[124]
- In what probably has to be regarded as a
significant, if largely unobserved development, the Court recently held that res
judicata is also protected under Article 6.[125] It would be an infringement
of the rights guaranteed by Article 6 to allow a final decision to be set aside on the application of
the public prosecutor, a procedural device traditionally found in many Eastern European countries. In
the opinion of the Court, one of the fundamental aspects of the rule of law is the principle of legal
certainty, which requires, among other things, that where the courts have finally determined an issue,
their ruling should not be called into question.[126] Legal certainty presupposes respect of the
principle of res judicata, that is the principle of
finality of judgments. The Court also stated that departures from that principle are justified only when
made necessary by circumstances of a substantial and compelling character.[127]
4.3 Analysis
- When analysing the applicability of Article 6 to
enforcement proceedings, a number of important principles of Article 6 have to be remembered which,
although well-established, frequently tend to be overlooked in the discussion of the matter: First,
Article 6 applies only to decisions about civil rights and obligations, ie, substantive rights and obligations, not to decisions on purely procedural questions. Second, from the fact that the French text
of Article 6 speaks of ‘contestation’ it has been inferred that for Article 6 to be
applicable the settlement of a dispute concerning a
right or obligation must be at issue.[128] Thus, Article 6 paragraph 1 requires not only
that the matter concerns civil rights or obligations, but that there be a dispute (contestation)
concerning the particular rights or obligations. The dispute must be genuine and of a serious nature.
The claimed judicial proceedings must lead to a ‘determination’ of civil rights or
obligations.[129] Thirdly, Article 6 only applies to final determinations as opposed to preliminary decisions.
- While enforcement proceedings have to be seen as a part of the
original proceeding for purposes of the reasonable time requirement, they normally do not entail a
decision about a ‘civil right’, nor do they ordinarily decide a ‘dispute’
(contestation). This is true from the viewpoint of both parties: As for the debtor, the institution of
enforcement proceedings ordinarily requires that a determination of the obligation of debtor has already
occurred in a prior proceeding. Furthermore, in light of remedies available to the debtor, be it an
appeal or the institution of a separate lawsuit challenging the enforcement proceedings, the decision on
an application for authorization of enforcement proceedings (which in continental Europe is often
granted ex parte) clearly does not constitute a final
determination for purposes of Article 6. But the same is true from the creditor’s point of view:
The creditor generally has a choice of several enforcement methods; a decision on any one application
for authorization of particular enforcement measures does not affect the existence of his
claim.[130]
- Yet the Court has found that enforcement proceedings constitute an
integral part of the trial. While this phrase may be
helpful in justifying the extension of the reasonable time requirement to enforcement proceedings (which
apparently is the primary reason why the Court adopted it), it offers little guidance as to whether and
to what extent the other guarantees provided for by Article 6 also apply to enforcement proceedings.
Since enforcement proceedings normally do not fulfil the requirements for the applicability of Article 6
outlined above (a fact which can hardly be assumed to have escaped the Court), the term integral part of the trial probably should not be understood as
implying a full application of all guarantees provided by Article 6 to enforcement proceedings. The best
explanation seems to be that for purposes of Article 6 the proceedings at the title stage and
enforcement proceedings have to be examined together for some purposes without all guarantees of Article
6 necessarily also applying to the latter. Thus, apart from the reasonable time requirement (the
application of which to enforcement proceedings is well established) enforcement proceedings are
probably only subject to a general fairness test, ie, whether basic
notions of fairness have been complied with.[131] For a proceeding to be
fair under Article 6 ECHR, sufficient legal ways of
enforcement have to be available (with States probably – as in the context of the ‘right to
a court’ in general – enjoying a certain margin of appreciation here), but the only
procedural requirements the Convention imposes on enforcement proceedings is that they are decided
within a reasonable time and that they conform to general notions of fairness whereas the other more
detailed guarantees of Article 6 do not apply to enforcement proceedings as such.[132] Thus, the
Commission probably stated the law correctly when observing that ‘as a general rule, enforcement
proceedings following a civil court judgment do not come within the scope of Article
6’.[133] In some instances, however, a determination of civil rights and obligations does occur
in enforcement proceedings. These instances will be examined in the next section of this paper.
4.4 Full Application of Guarantees of Article 6 ECHR
- If a determination of civil rights occurs only at
the enforcement stage, the requirements of Article 6 ECHR have to be met in this respect. For purposes
of the Convention, it is immaterial whether the proceeding leading to a decision is categorized as being
part of the ‘title stage’ of the proceedings or part of enforcement proceedings under
national law.[134] A good example for a determination of civil rights only at what is considered to be the
enforcement stage under national law is Portuguese law according to which in an action for damages the
final determination of ‘quantum’ can be
reserved for the enforcement proceedings.[135] In a number of decisions dealing with this
aspect of Portuguese law, the Court has held that if the national law of a State makes provision for
proceedings consisting of two stages – one when the court rules on the existence of an obligation
to pay and another when it fixes the amount owed – it is reasonable to consider that, for purposes
of Article 6 paragraph 1, a civil right is not ‘determined’ until the amount has been
decided.[136] The determination of a right entails deciding not only on the existence of that right,
but also on its scope or the manner in which it may be exercised.[137]
- Another example are severance (partition) proceedings: In some
countries, the decision as to how a jointly owned property be partitioned is rendered only at the
enforcement stage.[138] In these cases, it is quite clear that the decision involves a ‘determination of
a civil right’, even if it is rendered at a stage of the proceedings categorized as
‘enforcement proceedings’ under national law.[139]
- Another area where Article 6 may be of importance on the
enforcement stage is eviction proceedings. In
Immobiliare Saffi v Italy[140], the Court held:
As the tenant did not contest termination, the only outstanding point concerned the
date of repossession. For so long as that date was put back owing to the tenant’s refusal to leave
voluntarily, which entailed a de facto extension to the
lease and a subsequent restriction on the applicant’s right of property, there continued to be a
dispute for the purposes of art 6.
While this probably only was intended to justify the application of the time
requirement of Article 6 ECHR, a determination of a ‘civil right’ may occur in eviction
proceedings if the court can stay or defer enforcement and, thus, in effect extend the lease.[141]
- The imposition of sanctions for failure to comply with a court order also raises questions as to whether Article 6
applies to such proceedings. While the kind of action(s) that the defendant is required to perform or
abstain from has been determined at the title stage of the proceedings, the question of whether the
defendant actually failed to comply with the decision was not at issue.
- One final example may illustrate some of the difficulties the issue
of whether or not a determination of a civil right occurs in enforcement proceedings may pose in a civil
law system: In some countries, the court, by ex parte order, levies an attachment on
defendant’s wages and simultaneously orders the employer to pay the wages to the judgment
creditor. It has been suggested that this was already a determination of civil rights and, therefore,
the order to the employer should be issued separately only after the attachment order was served upon
the defendant and he had an opportunity to be heard.[142] Regardless of the possible merits of this
view under national law, reliance on Article 6 of the Convention in this context seems misplaced. As
pointed out supra, the guarantees of this provision do not apply to all decisions having some influence
on the civil rights of a person, but require that there is a genuine dispute. In the context of
enforcement proceedings, since the possibility of attachment proceedings is a standard way of
enforcement authorized by statute, it is hard to envisage in what respect there could be a genuine
dispute (contestation) triggering the guarantees of
Article 6. Moreover, the Convention does not necessarily require that defendant is heard ex ante; even
if – arguendo – we assume that Article
6 applies to this situation at all, the requirements of the Convention could be satisfied if there are
remedies ex post enabling the debtor to challenge the attachment.
Abbreviations and Acronyms
|
ACCP
|
Code of Civil Procedure (Argentina)
|
|
ALI
|
American Law Institute
|
|
ARS
|
Argentine Peso
|
|
Art
|
Article/Articles
|
|
BGH
|
Bundesgerichtshof (Federal Court of
Justice) [Germany]
|
|
CEPEJ
|
Conseil de l'Europe Commission européenne pour
l’efficacité de la justice (Council of Europe European
Commission for the efficiency of justice)
|
|
cf
|
confer (compare)
|
|
ch
|
chapter
|
|
CIDH
|
Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
|
|
CJEU
|
Court of Justice of the European Union
|
|
EBRD
|
European Bank for Reconstruction and Development
|
|
ECLI
|
European Case Law Identifier
|
|
ECtHR
|
European Court of Human Rights
|
|
ed
|
editor/editors
|
|
edn
|
edition/editions
|
|
eg
|
exempli gratia (for example)
|
|
ELI
|
European Law Institute
|
|
etc
|
et cetera
|
|
EU
|
European Union
|
|
EUR
|
Euro
|
|
ff
|
following
|
|
fn
|
footnote (external, ie, in other chapters or in citations)
|
|
GCCP
|
Code of Civil Procedure (Germany)
|
|
GDPR
|
General Data Protection Regulation (EU)
|
|
GG
|
Grundgesetz (Federal Constitution)
(Germany)
|
|
ibid
|
ibidem (in the same place)
|
|
ICPR
|
Civil Procedure Regulations (Israel)
|
|
ICT
|
Information and Communication Technologies
|
|
ie
|
id est (that is)
|
|
IIDP
|
Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
|
|
ITL
|
Italian Lira
|
|
n
|
footnote (internal, ie, within the same chapter)
|
|
no
|
number/numbers
|
|
para
|
paragraph/paragraphs
|
|
pt
|
part
|
|
Sec
|
Section/Sections
|
|
supp
|
supplement/supplements
|
|
trans/tr
|
translated, translation/translator
|
|
UK
|
United Kingdom
|
|
UKCPR
|
Civil Procedure Rules (UK)
|
|
UNIDROIT
|
Institut international pour l'unification du droit
privé (International Institute for the Unification of
Private Law)
|
|
UP
|
University Press
|
|
US / USA
|
United States of America
|
|
USD
|
United States Dollar
|
|
v
|
versus
|
|
vol
|
volume/volumes
|
|
WB
|
World Bank
|
Legislation
International/Supranational
European Convention for Human Rights.
Ibero-American Convention for Human Rights.
National
Abgabenordnung (Fiscal Code) (Germany).
Bundesverwaltungsvollstreckungsgesetz (Federal Code of
Compulsory Enforcement in Public Matters) (Germany).
Civil Code (Bürgerliches Gesetzbuch, BGB)
(Germany).
Civil Execution Act (Japan).
Code de Procedure Civil (Code of Civil Procedure)
(France).
Code of Civil Procedure (Japan).
Code of Civil Procedure (Portugal).
Code of Civil Procedure (Zivilprozessordnung)
(Germany).
Constitución Española (Constitution of
Spain) (Spain).
Exekutionsordnung (Enforcement Act) (Austria).
General Code Process (Uruguay).
Gesetz zur weiteren Fortentwicklung des Finanzplatzes
Deutschland of 21 June 2002, Federal Gazette (Bundesgesetzblatt, BGBl), part I, p 2010 (Germany).
Grundgesetz (Basic Law for the Federal Republic of
Germany) (Germany).
Insolvenzordnung (Insolvency Code) (Germany).
Law 19.090 (Uruguay).
Ley de Enjuiciamiento Civil Española (Civil
Procedural Rules) (Spain).
Sozialgerichtsgesetz (Social Security Courts Act)
(Germany).
Verwaltungsgerichtsordnung (Code of Administrative
Court Procedure) (Germany).
Cases
International/Supranational
CIDH Baena vs. Panamá,
Decision 28 November 2003 (2003).
CIDH Cinco Pensionistas vs Perú (2003) 28 February 2003 (2003).
CIDH Furlan vs Argentina,
Decision 31 July 2012 (2012).
CIDH Mejia Idovro vs Ecuador,
Decision 5 July 2011 (2011).
CJEU Denilauler/Couchet Frères, Judgment of 21 May 1980, As 125/79, Rec 1980, n 5.
ECHR Airey v Ireland, Judgment
of 9 October 1979, series A no 32.
ECHR Annoni di Gussola v France,
Judgment 17 October 2000.
ECHR Annoni di Gussola v
France, judgment of 14 November 2000 No. 31819/96 and 33293/96 final February 2001.
ECHR Antonakopoulos et al v Greece (1994).
ECHR Bentham, Judgment of 23
October 1985, Series A no 97.
ECHR Bieliec vs Montenegro (2009).
ECHR Brumarescu v Romania,
Judgment of 28 October 1999, Reports 1999-VII.
ECHR Burdov v Russia, Judgment
of 18 April 2002.
ECHR Chappell v UK, Judgment of
30 March 1989, series A no 152-A.
ECHR Comingersoll S.A. v Portugal, Judgment of 6 April 2000.
ECHR Commission of the European Communities v the
Hellenic Republic, Judgment of 15 March 1988, no 147/86.
ECHR Crémieux v France,
Nr. 1147/85.
ECHR Cvijetic v Croatia,
Judgment of 26 February 2004 (eviction proceedings lasting from 1994 – 2002).
ECHR De Becker Judgment of
27 March 1962, Series A no 4.
ECHR DeCubber v Switzerland,
Judgment of 26 October 1984.
ECHR Di Pede v Italy,
Zappia v Italy (1996).
ECHR Dimitrios Georgiades v Greece, Judgment of 28 March 2000.
ECHR Edificaciones March Gallego S.A. v
Spain, Judgment 19 February 1998, Reports 1998-I, § 34.
ECHR Emsenhuber v Austria,
Decision of 11 September 2003, no 54536/00.
ECHR Eriksson v Sweden, Judgment
of 2 June 1989, Series A no 156.
ECHR Funke v France, judgment of
25 February 1993, A256-A § 57.
ECHR García Manibardo v Spain, Judgment 15 February 2000, § 36, ECHR 2000-II).
ECHR Gasus Dosier- und Fördertechnik GmbH v The
Netherlands, Judgment of 23 February 1995, A306-B.
ECHR Golder v United Kingdom,
Judgment of 21 February 1975, Series A no 18.
ECHR Guincho v Portugal,
Judgment of 10 July 1984, Series A no 81.
ECHR H v Belgium, Judgment of 30 November 1987, Series A
no 127.
ECHR Hokkanen v Finland,
Judgment of 23 September 1994, Series A no 299-A.
ECHR Hornsby v Greece, Judgment
of 25 February 1997, Reports 1997-II.
ECHR Ignaccolo Zenide v Romania,
Judgment of 25 January 2000, Reports 2000-I.
ECHR Immobiliare Saffi v Italy,
Judgement of 28 July 1999, ECHR 1999-V.
ECHR Ivanova v Finland, Judgment
of 28 May 2002, no 53054/99.
ECHR J.B. v Switzerland, no
31827/96, ECHR 2001-III.
ECHR Kansal v UK, Judgment 27
April 2004.
ECHR Keegan v Ireland, Judgment
of 26 May 1994, Series A no 290.
ECHR König, Judgment of 28
June 1978, Series A no 27.
ECHR Krombach v Bamberski,
Judgment of the ECJ of 28 March 2000.
ECHR Krombach v France, Judgment
of 13 February 2001.
ECHR Kyrtatos v Greece, Judgment of 22 May 2003.
ECHR Le Compte, Van Leuven and De Meyere, Judgment of 23 June 1981, Series A no
43.
ECHR Margareta and Roger Andersson v Sweden, Judgment of 25 February 1992, series A no 226-A.
ECHR Martin Moreira v Portugal,
Judgment of 26 October 1988, Series A no 143.
ECHR McMichael v United Kingdom, Judgment of 24 February 1995, series A no 307-B.
ECHR Miailhe v France, Judgment
of 26 September 1996, Reports 1996-IV.
ECHR Morel v France, Judgment of
16 May 2000, No 34130/96.
ECHR Nicolow vs Macedonia (2007).
ECHR Nuutinen v Finland,
Judgment of 27 June 2000, Reports 2000-VIII 1994.
ECHR Olsson v Sweden (no
2), Judgment of 27 November 1992, Series A no 250.
ECHR Palumbo v Italy, Judgment
of 30 November 2000.
ECHR Pralika vs Bosnia Hersegovina.
ECHR Pudas v Sweden, Judgment of
27 October 1987, Series A no 125-A.
ECHR Rybakykh v Russia, Judgment
of 24 July 2003.
ECHR Silva Pontes v Portugal,
Judgment of 22 February 1994.
ECHR Sophia Gudrun Hansen v Turkey, Judgment of 23 September 2003.
ECHR Stran Greek Refineries and Stratis Andreadis v
Greece, Judgment of 9 December 1994, Series A no 301-B, § 59.
ECHR Sylvester v Austria,
Judgment of 24 April 2003.
ECHR Vasilopoulou v Greece,
Judgment of 21 March 2002.
ECHR W v Austria, No 10757/84,
DR 56, 36.
ECHR Weh v Austria, 8 April
2004.
ECHR X v Germany, Decision of 14
March 1980, application no 8469/79.
EU Commission decision Krone v Austria, Judgment of 21 May 1997, No
28977/95.
National
BGH JZ 2005, 525, 526 (Supreme Court, Germany).
BVerfG 49, 220 (Constitutional Court, Germany), Decision 27 September 1978.
BVerfGE 1, 97, 105 (Constitutional Court, Germany).
BVerfGE 22, 180, 204 (Constitutional Court, Germany).
BVerfGE 36, 73, 84 (Constitutional Court, Germany).
BVerfGE 46, 325 (332) (Constitutional Court, Germany) [NJW 1978, 368].
BVerfGE 49, 220, 232; 51, 97, 113; 57, 346, 356-357 (Constitutional Court,
Germany).
BVerfGE 51, 97 (Constitutional Court, Germany) [NJW 1979, 1539].
BVerfGE 56, 37 (Constitutional Court, Germany) [NJW 1981, 1431].
BVerfGE 59, 231, 263 (Constitutional Court, Germany).
BVerfGE 65, 182, 193 (Constitutional Court, Germany).
BVerfGE 68, 193, 222; 83, 201, 208 f (Constitutional Court, Germany).
Pietranera, Josefa y otros v Gobierno
Nacional (Supreme Court, Argentina) Judgment 7 September 1966 [265.291].
VfSlg 14.473 (Constitutional Court, Austria).
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Stürner R, ‘Prinzipien der Einzelvollstreckung’ (1986) ZZP 99, 291-332.
Tarzia G, ‘Aussichten für eine Harmonisierung des
Zwangsvollstreckungsrcchts in der Europäischen Union’, (1996) ZeuP 231-242.
Terhechte J, Konstitutionalisierung und Normativität der
europäischen Grundrechte (Tübingen Mohr Siebeck 2011).
Trocker N, ‘The Right to Effective Enforcement of Civil Judgments and
Orders’ (2008) ZZPINT 13, 115.
Uzelac A, ‘The Role played by the Profession of Bailiffs in the Proper and Efficient
Functioning of the Judicial System: An Overview with Special Consideration of the Issues Facedby Countries
in Transition’, in The Role, Organisation, Status and Training of Bailiffs
– Strengthening the Enforcement of Court Decisions in Civil and Commercial Cases (Varna Bulgaria 2002).
,
On the goals of civil procedure see Goals of Civil Justice and Civil Procedure in
Contemporary Judicial Systems (Cham Heidelberg Springer 2014).
Van Rhee R and Uzelac A, Enforcement and Enforceability. Tradition and
Reform (Antwerp Intersentia 2010).
Verbic F, ‘El nuevo régimen de medidas cautelares contra el Estado Nacional y su
potencial incidencia en el campo de los procesos colectivos’ (2013) Sup. Esp., La Ley 1.
Vittoria P, ‘Giusto processo ed effettività della tutela giurisdizionale esecutiva
nelle recenti e meno recenti modifiche del codice di procedura civile’ (2009) in Riv. es. forz., 365ff.
Webber G, The Negotiable Constitution: on the Limitations of
Rights (Cambridge University Press 2009).
Wolf M, ‘Eigentumschutz in der Zwangsvollstreckung’, in K Beys, Grundrechtsverletzungen bei der Zwangsvollstreckung (Athen Dike
International 1996) 201.
Zöllner W, ‘Materielles Recht und Prozeßrecht‘ (1990) Archiv für die civilistische Praxis 190, 471-495.
Zucca L, ‘Conflicts of Fundamental Rights as Constitutional
Dilemmas’, in E Brems, Conflicts Between Fundamental Rights (Antwerp Intersentia 2008) 19-37.
[1] M Cole, ‘Il Diritto
concursuale statunitense in un contesto globale’, in F Giovanni, Quaderni
di Giurisprudenza commerciale, Soluzione Negoziali e Istituti Preconcorsuali Nella Gestione Della
Crisi (Giuffrè Editore 2013) 223 – 234.
[2] J Lebre de Freitas, A ação executiva (Coimbra 2014) 9-20.
[3] N Fischer, German National Report (Seoul 2014) 1-12.
[4] G Lüke, Die öffentlich-rechtliche Theorie der
Zwangsvollstreckung und ihre Grenzen (Frankfurt 1953) 5-15.
[5] J Stamm, Die Prinzipien und Grundstrukturen des Zwangsvollstreckungsrechts (Mohr Siebeck 2007) 15-19.
[6] Lebre de Freitas (n 2)
21-24.
[7] R Stürner, ‘Prinzipien
der Einzelvollstreckung’ (1986) 99 ZZP 291, 291-332.
[8] J Carreras, El embargo de bienes (Bosch 1957) 6.
[9] F Gaul, ‘Zur Problematik der
Grundrechtsverletzungen in der Zwangsvollstreckung’, in K Beys (ed), Grundrechtsverletzungen bei der Zwangsvollstreckung (Dike
International 1996) 27 f.
[10] L Rosenberg, H Gaul, E Schilken
and E Becker-Eberhard, Zwangsvollstreckungsrecht (Munich Beck 2010).
[11] The German Constitutional Court
decisions with the individual opinion of justice Böhmer are the main starting point (BVerfGE 49,
220 (Constitutional Court, Germany), Judgment 27 September 1978).
[12] See the decisions BVerfGE 1, 97,
105; 36, 73, 84; 65, 182, 193; 22, 180, 204; 59, 231, 263 (Constitutional Court, Germany).
[13] K Schwab and P Gottwald,
‘Verfassung und Zivilprozess’, in W Habscheid (ed), Rechtsschutz und
verfassungsmässige Ordnung (Bielefeld 1983) 1 f.
[14] A Uzelac, ‘On the goals of
civil procedure’, in A Uzelac (ed), Goals of Civil Justice
and Civil Procedure in Contemporary Judicial Systems (Springer 2014)
3-20.
[15] G Tarzia, ‘Aussichten
für eine Harmonisierung des Zwangsvollstreckungsrechts in der Europäischen Union’ (1996)
ZeuP 231, 231-242.
[16] S Guinchard, ‘La garantie
de l’éxecution de la decisión du Juge’, in S Guinchard, C Chainas, C S Delicostopoulos et al (ed), Droit Processuel (Dalloz 2009) 1015 ff.
[17] H Gaul, E Schilken and E
Becker-Eberhard, Zwangsvollstreckungsrecht (12th
edn, C.H. Beck 2010) 5-20.
[18] H Gaul, Rechtsverwirklichung durch Zwangsvollstreckung aus rechtsgrundsätzlicher und
rechtsdogmatischer Sicht (1999) 112 ZZP 135.
[19] R Alexy, ‘The construction
of constitutional rights’ (2010) 4 Law & Ethics of Human Rights 20–32.
[20] M Klatt, ‘Die
Abwägung von Rechtsprinzipien’, in C Hiebaum (ed), Handbuch
Gemeinwohl (Springer 2021) 2-16.
[21] A Barak, Proportionality. Constitutional Rights and their Limitations (Cambridge University Press 2012) 1-12.
[22] R Alexy, ‘Proportionality
and rationality’ in V C Jackson und M V Tushnet (ed), Proportionality: New
frontiers, new challenges (Cambridge University Press 2017) 13-29.
[23] V Ferreres Comella, Constitutional Courts and Democratic Values: A European Perspective (Yale University Press 2009) 10-25.
[24] R Alexy, ‘Constitutional
Rights and Proportionality’ (2014) Revus -
Journal for Constitutional Theory and Philosophy of Law 22, 51-65.
[25] N Emiliou, The Principle of Proportionality in European Law: A comparative Study (Kluwer 1998) 25-50.
[26] B Lepa, Insolvenzordnung und Verfassungsrecht (Duncker & Humblot
2001) 5-20.
[27] O Cherednychenko,
‘Fundamental Rights, in European Private Law and Financial Service’, in H Micklitz (ed),
Constitutionalization of European Private Law (Oxford
University Press 2014) 203-208.
[28] H Rüßmann,
‘Buchbesprechung zu Jauernig, Zwangsvollstreckungs- und Konkursrecht‘ (1989) ZZP 102,
398-404.
[29] J Peyrano, El proceso civil. Principios y fundamentos (Astrea 1978)
10-30.
[30] E Jeuland, France National Report (Seoul 2014) 1-10.
[31] Pursuant Article L 111-1 of the
Code of Civil Enforcement Procedures: ‘a creditor may, under the conditions provided by law,
compel the defaulting debtor to perform his obligations towards her. Any creditor may pursue a
precautionary measure to safeguard its rights’. Also, Article L 111-2 rules ‘The creditor
with a writ of execution showing a liquid and payable debt can continue the enforcement of the
debtor's assets in the conditions of each measurement execution’.
[32] Fort the procedural and
enforcement Law in Japan, please see the Civil Execution Act
https://www.japaneselawtranslation.go.jp/en/laws/view/70/en (accessed June 2024) The Code of Civil
Procedure https://www.japaneselawtranslation.go.jp/en/laws/view/2834/en accessed June 2024.
[33] S Pereira Campos and G Valentin,
Uruguay National Report
(Seoul 2014) 1-10.
[34] N Trocker, ‘The Right to
Effective Enforcement of Civil Judgments and Orders’ (2008) ZZPINT para 13, 115.
[35] Hornsby
v Greece (ECtHR), Judgment of 19 March 1997
[ECLI:CE:ECHR:1997:0319JUD001835791], Nr 18357/91, Reports of judgments and decisions, 1997 II 495; See
also Denilauler v Couchet Frères (CJEU), Judgment
of 21 May 1980 [ECLI:EU:C:1980:130], As. 125/79, Rec. 1980, 1553, para 5.
[37] Five Pensioners v Peru (CIDH), Judgment of 28 February
2003 and the later cases Baena-Ricardo et al. v Panama (CIDH) Judgment of 28 November 2003 and Mejía Idrovo v
Ecuador (CIDH) Judgment of 5 July 2011.
[38] M Cappelletti, The Judicial Process in Comparative Perspective (Clarendon Press
1989) 243 f.
[40] J Picó i Junoy,
Las garantías constitucionales del proceso (Bosch 1997) 10-25.
[41] K Kerameus, ‘Die
Angleichung des Zivilverfahrensrechts in der Europäischen Union vor dem Hintergrund der Schaffung
eines Europäischen Zivilgesetzbuches’, in European Parlament, Untersuchung der Privatrechtsordnungen der EU im Hinblick auf Diskriminierungen und die
Schaffung eines Europäisches Zivilgesetzbuch (JURI 103 DE 1999)
85-95.
[42] German Federal Code of
Compulsory Enforcement in Public Matters (Bundes-Verwaltungsvollstreckungsgesetz, VwVG).
[43] Federal Supreme Court
(Bundesgerichtshof, BGH), JZ 2005, 525, 526.
[44] J Stamm, Die Prinzipien und Grundstrukturen des Zwangsvollstreckungsrechts (Mohr Siebeck 2007).
[45] C Kern, ‘Principios de la
ejecución individual de acuerdo al Código Procesal Civil alemán: Transparencia y
eficiencia’, in A Perez Ragone and P Tavolari, Derecho Procesal Civil
Comparado: Homenaje a Rolf Stürner (Thomson Reuters 2013) 133,
135.
[46] G Schulze, Die Naturalobligation (Mohr
Siebeck 2008) 5-20.
[48] L Alexander and K Kress,
‘Against Legal Principles’ in A Marmor (ed),
Law and Interpretation: Essays in Legal Philosophy (1995)
279.
[50] Ley de
Enjuiciamiento Civil Española (Spanish Civil Procedural
Rules).
[52] P Gilles, ‘Thesen zur
einigen der rechts- und verfassungs-, -verfahrens- und justizpolitischen Aspekte des Themas:
Grundrechtsverletzungen bei der Zwangsvollstreckung’ in K Beys (ed), Grundrechtsverletzungen bei der Zwangsvollstreckung (Dike
International 1996) 111 f.
[53] M Wolf, ‘Eigentumsschutz
in der Zwangsvollstreckung’ in Beys K (ed), Grundrechtsverletzungen bei
der Zwangsvollstreckung, (Dike International 1996) 201.
[54] L Haertlein, Exekutionsintervention und Haftung (Tübingen, Mohr Siebeck
2008) 5-30.
[55] K Kerameus, Enforcement Proceedings (International Encyclopaedia of Comparative
Law-Civil Procedure, vol XVI, Mohr Siebeck 2002) 5-30.
[57] German Insolvency Code
(Insolvenzordnung, InsO).
[58] G Priori, Proceso y Constitución. Efectividad y ejecución de las resoluciones
judiciales (Palestra 2014) 1-120.
[59] I Spry, The Principles of Equitable Remedies (Sidney, Thomson Reuter
2010) 340.
[61] N Fischer, Vollstreckungszugriff als Grundrechtseingriff (Frankfurt am
Main, Vittorio Klostermann 2006) 10-25.
[62] Cf the case Hornsby v Greece (n 35) Report 1997-II, 40.
[64] German Federal Code of
Compulsory Enforcement in Public Matters (Bundes-Verwaltungsvollstreckungsgesetz, VwVG).
[65] German Social Security Courts
Act (Sozialgerichtsgesetz, SGG).
[66] M Klatt, ‘Die
Abwägung von Rechtsprinzipien’, in C Hiebaum, Handbuch
Gemeinwohl (Springer 2021) 2-16.
[67] E Oteiza, Argentina National Report (Seoul, 2014) 1-15.
[68] Pietranera, Josefa y otros v Gobierno Nacional (Supreme Court,
Argentina), Judgment of 7 September 1966 [Fallos: 265.291].
[69] E Oteiza, ‘El
cercenamiento de la garantía a la protección cautelar en los procesos contra el Estado por
la ley 26.854’ (2013) La Ley, Sup Esp 2013.
[70] Pashov
and Others v Bulgaria (ECtHR), Judgment of 5 February 2013 [ECLI:CE:ECHR:2013:0205JUD002087507] para
58: ‘The problem was exacerbated by the fact that Bulgarian Law does not provide for enforcement
proceedings against the State institutions[…]’.
[71] Marinković v Serbia (ECtHR), Judgment of 22 October 2013
[ECLI:CE:ECHR:2013:1022JUD000535311] para 39: ‘When it comes to the execution of final court
decisions rendered against the State or entities that do not enjoy sufficient institutional and
operational independence from the State, it is not open to the State to cite either the lack of its own
funds or the indigence of the debtor as an excuse for the non-enforcement of those
decision’.
[72] Annoni
di Gussola and others v France (ECtHR), Judgment 14 November 2000
[ECLI:CE:ECHR:2000:1114JUD003181996], No. 31819/96 and 33293/96 final February 2001.
[73] Although the case also involved
a private sale of car in the course of ‘enforcing’ a debt, this issue was not reached by the
court.
[74] Miailhe
v France (ECtHR), Judgment 26 September 1996
ECLI:CE:ECHR:1996:0926JUD001897891], Reports 1996-IV.
[75] VfSlg 14.473 (Constitutional
Court, Austria), Judgment of 14 March 1996.
[76] This consideration will only
prevent a full privatization of enforcement proceedings in many countries. It does not affect, however,
the organization of enforcement organs and their remuneration as long as there is sufficient control
over them by public authorities.
[77] B Hess, ‘Different
Enforcement Structures’ in C Van Rhee and A Uzelac (ed), Enforcement and
Enforceability: Tradition and Reform (Intersentia 2010) 41.
[78] D Eickmann, Vollstreckungssysteme und Gerichtsvollzieherstellung in Europa (1980) 129-136.
[79] S Díez Riaza,
Armonización europea en material de ejecución civil: Especial
consideración de la introducción del huissier de justice en nuestro
ordenamiento (Consejo General de Procuradores 2002) 1-25.
[80] M Kengyel and V Harsági,
Grenzüberschreitende Vollstreckung in der Europäischen Union (Sellier 2011) 385-395.
[81] A Jongbloed, The bailiff in Europe, utopia or reality? (Kluwer 2004)
159-165.
[82] K Henderson et al, Barriers to the Enforcement of Court Judgments and the Rule of Law (World Bank 2003).
[83] H Gramckow, ‘Effective
Processes and Enforcement Agents’ (Washington, World Bank 2012), passim; Cf A Uzelac, ‘The Role played by the Profession of
Bailiffs in the Proper and Efficient Functioning of the Judicial System: An Overview with Special
Consideration of the Issues Faced by Countries in Transition’ Lecture delivered at the Council of
Europe seminar, ‘The Role, Organisation, Status and Training of Bailiffs – Strengthening the
Enforcement of Court Decisions in Civil and Commercial Cases’ (Varna, Bulgaria, 2002) passim.
[85] F Matscher, ‘Methods of
Interpretation of the Convention’, in R Macdonald, F Matscher and H Petzold, The European System for the Protection of Human Rights (1993)
63.
[86] Article 1 paragraph 1 of
Protocol No 1 provides: ‘Every natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international law’.
[87] J A Frowein, ‘The
Protection of Property’ in R Macdonald, F Matscher and H Petzold, The
European System for the Protection of Human Rights (1993) 515.
[89] Stran
Greek Refineries and Stratis Andreadis v Greece (ECtHR), Judgment 9 December
1994 [ECLI:CE:ECHR:1994:1209JUD001342787], Series A no 301-B, para 59; Burdov v Russia (ECtHR), Judgment 18 April 2002
[ECLI:CE:ECHR:2002:0507JUD005949800]; Immobiliare Saffi v Italy (ECtHR), Judgment 28 July 1999 [ECLI:CE:ECHR:1999:0728JUD002277493] (eviction proceedings).
[90] See, eg, Gasus Dosier- und Fördertechnik GmbH v The Netherlands (ECtHR),
Judgment 23 February 1995 [ECLI:CE:ECHR:1995:0223JUD001537589], A306-B, para 65 in fine.
[91] See also Emsenhuber v Austria (ECtHR), Decision 11 September 2003
[ECLI:CE:ECHR:2003:0911DEC005453600], no 54536/00, where the Court found that a decision
refusing a building permit did not necessarily have to be enforced by tearing down the building built
without a permit, but that another way to give effect to the decision would be by way of pecuniary
compensation to the neighbour for the unlawfully erected building.
[92] Immobiliare Saffi v Italy (n 89) para 49; Palumbo v Italy (ECtHR), Judgment 30 November 2000
[ECLI:CE:ECHR:2000:0622JUD004301298], para 26.
[93] A different result is reached,
of course, if the duration of the stay in effect renders the right enforcement of which is sought
nugatory. For repeated stays of execution by legislative measures, see Immobiliare Saffi v Italy (n 89); Palumbo v Italy (n 92).
[94] Most recently, this issue was
raised in a number of applications against Greece. See, eg, Vasilopoulou v
Greece (ECtHR), Judgment 21 March 2002
[ECLI:CE:ECHR:2001:0322DEC004754199]. The Court noted, however, that Member States here enjoy a
wide margin of appreciation. This aspect of the Court’s case law, however, is beyond the scope of
this article since it deals with an outright denial of enforcement under national law rather than with
the influence of the Convention on enforcement proceedings as such.
[95] It is well established in the
Court’s case law that a violation of Article 6 can, in addition, constitute a violation of a
substantive right. See, eg, cases concerning the enforcement of custody rights and rights of access
discussed.
[96] Article 8 ECHR provides:
‘(1) Everyone has the right to respect for his private and family life,
his home and his correspondence.
(2) There shall be no interference by public authority with the exercise of that
right except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health and morals, or for the protection of the
rights and freedoms of others’.
[97] That the Court is reluctant to
stress the protection under Article 8 too far is also apparent from Kyrtatos v
Greece (ECtHR), Judgment 22 May 2003 [ECLI:CE:ECHR:2003:0522JUD004166698], where
the Court found that extensive construction works in an environmentally protected swamp did not violate
rights of neighbours under Article 8.
[98] Margareta and Roger Andersson v Sweden (ECtHR), Judgment 25 February
1992 [ECLI:CE:ECHR:1992:0225JUD001296387], Series A no 226-A; Nuutinen v
Finland (ECtHR), Judgment 27 June 2000
[ECLI:CE:ECHR:2000:0627JUD003284296], Reports 2000-VIII 1994; Ignaccolo-Zenide v Romania (ECtHR), Judgment 25 January 2000
[ECLI:CE:ECHR:2000:0125JUD003167996], Reports 2000-I; Sophia Gudrun Hansen v
Turkey (ECtHR), Judgment 23 September 2003 [ECLI:CE:ECHR:2003:0923JUD003614197]
(EUR 15,000 non-pecuniary damages awarded); Sylvester v Austria (ECtHR), Judgment 24 April 2003 [ECLI:CE:ECHR:2003:0424JUD003681297].
[99] It has to be remembered, though,
that these provisions serve to protect different interests. While Article 6 affords a procedural
safeguard, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In light of the different interests
protected by these provisions, it is justified to examine the same set of facts under both Articles.
See, eg, McMichael v United Kingdom (ECtHR), Judgment 24
February 1995 [ECLI:CE:ECHR:1995:0224JUD001642490], series A no 307-B, 57, para 91. However,
occasionally the Court focuses only on Article 8 in such cases, considering it not necessary to examine
the facts of the case also under Article 6. See Sylvester v Austria (n 98), para 76.
[100] Keegan v Ireland (ECtHR), Judgment 26 May 1994
[ECLI:CE:ECHR:1994:0526JUD001696990], Series A no 290, para 49.
[101] Eriksson v Sweden (ECtHR), Judgment 2 June 1989
[ECLI:CE:ECHR:1989:0622JUD001137385], Series A no 156, 26-27, para 71; Margareta
and Roger Andersson v Sweden (n 98) 30, para 91; Olsson
v Sweden (no. 2) (ECtHR), Judgment 27 November 1992
[ECLI:CE:ECHR:1992:1127JUD001344187], Series A no 250, 35-36, para 90; Hokkanen
v Finland (ECtHR), Judgment 23 September 1994
[ECLI:CE:ECHR:1994:0923JUD001982392], Series A no 299-A, 20, para 55; Nuutinen v Finland (n 98) 83, para 127; Ignaccolo-Zenide v Romania (n 98) 265, para 94; Sylvester v Austria (n 98) para 58; Sophia
Gudrun Hansen v Turkey (n 98) para 97.
[102] Hokkanen v Finland (n 101) 22, para 58; Ignaccolo-Zenide v Romania (n 98) 265, para 96; Sophia Gudrun Hansen v Turkey (n 98) para 99.
[103] See the Ignaccolo-Zenide and Sophia Gudrun
Hansen (n 98).
[104] Ignaccolo-Zenide v Romania (n 98) para 111; Sylvester v Austria (n 98) para 71.
[105] It is well recognized in
other contexts that the fundamental rights have certain ‘implicit limitations’. What these
are cannot be determined by a general formula; it follows rather from the assessment of the individual
case. See eg, the Golder v
The United Kingdom (ECtHR), Judgment of 21 February 1975
[ECLI:CE:ECHR:1975:0221JUD000445170], Series A no 18.
[106] See BVerfGE 46, 325 (332)
(Constitutional Court, Germany) [NJW 1978, 368].
[107] See, particularly,
Gasus Dosier- und Fördertechnik GmbH v The Netherlands (n 90) (concerning seizure of a concrete-mixer in which the applicant had a fiduciary
ownership).
[108] Gasus
Dosier- und Fördertechnik GmbH v The Netherlands (n 90) para
66.
[109] Crémieux v France (ECtHR), Judgment of 25 February 1993 [ECLI:CE:ECHR:1993:0225JUD001147185], A256-B, para 40, and
Funke v France (ECtHR), Judgment of 25 February 1993
[ECLI:CE:ECHR:1993:0225JUD001082884], A256-A, para 57: ‘Above all, in the absence of any
requirement of a judicial warrant the restrictions and conditions provided for in law […] appear
too lax and full of loopholes for the interferences with the applicant’s rights to have been
strictly proportionate to the legitimate aim pursued.’ It should be pointed out, however, that
these decisions did not concern civil enforcement proceedings, but a search by customs officials in a
criminal proceeding. For another decision concerning a search by customs officials, see Miailhe v France (ECtHR), Judgment of 26 September 1996
[ECLI:CE:ECHR:1996:0926JUD001897891], Reports 1996-IV.
[110] See also Chappell v The United Kingdom (ECtHR), Judgment of 30 March 1989
[ECLI:CE:ECHR:1989:0330JUD001046183], series A no 152-A (concerning an Anton Pillar order, no
violation found).
[111] See BVerfGE 51, 97
(Constitutional Court, German) [NJW 1979, 1539]: While the German Code of Civil Procedure (Art 761 GCCP)
requires a court authorization only for night-time entries of a home, the Constitutional Court has held
that in light of the constitutional protection of homes this provision ought to be extended per analogy
to all entries of a home. The situation is less clear under Austrian law. Section 26 of Exekutionsordnung (the Enforcement Act) authorizes the bailiff
to enter and search the debtor’s residence. While constitutional law contains what would appear to
be an unqualified warrant requirement for all searches, arguably historically the purpose of this
provision was only to provide a protection against searches in the context of a criminal proceeding,
which were seen as particularly intrusive. Some contemporary commentators believe that the warrant
requirement also applies to seizures in the context of civil enforcement proceedings. W Jelinek et al,
‘Verfassungsrechtliche Aspekte der Zwangsvollstreckung in Österreich‘, in K Beys
(ed), Grundrechtsverletzungen bei der Zwangsvollstreckung (Dike International 1996), 301 ff.
[112] Hoechst AG v Commission of the European Communities, Case C-46/87 and
C-227/88 (CJEU), Judgment 21 September 1989 [ECLI:EU:C:1989:337] [NJW (1989) 3080].
[113] The situation is different,
of course, when someone is compelled to provide information in connection with a (pending or
contemplated) criminal proceeding. See, eg, Funke v France (n 111) para 42-44.
[114] See Kansal v The United Kingdom (ECtHR), Judgment 27 April 2004
[ECLI:CE:ECHR:2004:0427JUD002141302]; BVerfGE 56, 37 (Constitutional Court, Germany) [NJW 1981,
1431].
[115] A good example of the
difficulties national courts have in dealing with this question is provided by the Austrian Supreme
Court. In a 1998 decision, it stated that there can be no doubt that Article 6 ECHR does not apply to
enforcement proceedings (3 Ob 243/98a (Supreme Court, Austria), Judgment of 25 November 1998). A few
years earlier, the same court stated that it had ‘always’ applied Article 6 to enforcement
proceedings (3 Ob 42/95 (Supreme Court, Austria), Judgment of 26 April 1995 [SZ 68/83]).
[116] Morel
v France (ECtHR), Judgment of 6 June 2000 [ECLI:CE:ECHR:2000:0606JUD003413096],
No 34130/96.
[117] Schmid v Austria (ECtHR), Commission decision of 09 December 1987
[ECLI:CE:ECHR:1987:1209DEC001183185], No 11831/85, DR 54, 144; Krone v
Austria (ECtHR), Commission decision of 21 May 1997
[ECLI:CE:ECHR:1997:0521DEC002897795], No 28977/95.
[118] It is well established that
under Article 6 the investigating judge (juge d’ instruction) may not be the judge deciding on guilt or innocence of a defendant. See, eg, De Cubber v Switzerland (ECtHR), Judgment of 26 October 1984
[ECLI:CE:ECHR:1984:1026JUD000918680].
[119] Krone
v Austria (n 119). See also CD 42, 145 and DR 48, 225 (application to question
witnesses in a public hearing).
[120] Golder v United Kingdom (n 105).
[121] J A Frowein (n
87) 515.
[122] See, eg, Hornsby v Greece (n 35) 510-511, para 40; Immobiliare Saffi v Italy (n 89) para 63; Antonakopoulos et al v Greece (ECtHR), Judgment of 9 December
1994, Series A no. 301-B; Vasilopoulou v Greece (n
94); Dimitrios Georgiades v Greece (ECtHR),
Judgment of 28 March 2000 [ECLI:CE:ECHR:2000:0328JUD004120998]; Burdov. v Russia
(ECtHR), Judgment of 18 April 2002 [ECLI:CE:ECHR:2002:0507JUD005949800], para 34;
Rybakykh v Russia (ECtHR), Judgment of 24 July 2003
[ECLI:CE:ECHR:2003:0724JUD005285499], para 55.
[123] Hornsby v Greece (n 124). The case concerned an administrative
decision on an application for a license to operate a foreign language school. The case is also
significant in that it is one of the few cases that was decided both by the European Court of Human
Rights and by the European Court of Justice (Commission of the European
Communities v the Hellenic Republic, Case C-147/86 (CJEU), Judgment of 15 March 1988 [ECLI:EU:C:1988:150]). A more
recent example is Krombach v France (ECtHR),
Judgment of 13 February 2001; Krombach v Bamberski, Case
C-7/98 (CJEU), Judgment of 28 March 2000
[ECLI:EU:C:2000:164]).
[124] Martins Moreira v Portugal (ECtHR), Judgment of 26 October 1988
[ECLI:CE:ECHR:1988:1026JUD001137185] (defendant was bankrupt when proceedings were over);
Di Pede v Italy (ECtHR), Judgment of 26 September 1996
[ECLI:CE:ECHR:1996:0926JUD001579789], Zappia v Italy (ECtHR), Judgment of 26 September 1996 [ECLI:CE:ECHR:1996:0926JUD002429594] (enforcement
proceedings concerning a judgment debt of ITL 5 million from 1969 – 1993); Comingersoll S.A. v Portugal (ECtHR), Judgment of 6 April 2000
[ECLI:CE:ECHR:2000:0406JUD003538297] (enforcement proceedings on bills of exchange ‘which by their
very nature need to be dealt with expeditiously’ lasting 12 years); Palumbo v Italy (n 92) (eviction proceedings); Cvijetic v Croatia (ECtHR), Judgment of 26 February 2004
[ECLI:CE:ECHR:2004:0226JUD007154901] (eviction proceedings lasting from 1994 – 2002. The
delay was in part due to demonstrations of war veterans preventing eviction).
[125] Rybakykh v Russia (n 124); see also Brumarescu v Romania (ECtHR), Judgment of 28 October 1999,
Reports 1999-VII.
[126] Rybakykh v Russia (n 124) para 51; Brumarescu
v Romania (n 127) para 61.
[127] Rybakykh v Russia (n 124) para 52.
[128] This concept of
‘dispute’, however, should not be construed too technically and should be given a
substantive rather than a formal meaning: A difference of opinion between the parties concerned is
sufficient, provided that it is ‘genuine and of a serious nature’. This interpretation was
enunciated for the first time in the Le Compte,
Van Leuven and De Meyere v Belgium (ECtHR), Judgment of 23
June 1981, Series A no 43, (ECLI:CE:ECHR:1981:0623JUD000687875), 20. J Frowein (87) 515.
[129] However, the
‘determination’ need not form the main point or even the purpose of the proceedings. It is
sufficient that the outcome of the claimed judicial proceedings may also be ‘decisive for’
or may ‘affect’ the determination and/or the exercise of the right, or the determination
and/or the fulfilment of the obligation, as the case may be. That right or obligation does not have to
constitute the direct object of the procedure; moreover, the determination need not necessarily concern
the existence of a right or obligation, but may also relate to its scope or modalities (Le Compte, Van Leuven and De
Meyere v Belgium (n 130)
22; Benthem v The
Netherlands (ECtHR), Judgment of 23 October 1985, Series A no. 97
[ECLI:CE:ECHR:1985:1023JUD000884880] 15 ff. J A Frowein (n 87) 515.
[130] The result may be different
if the only feasible way of enforcement is denied. This result, however, does not require us to assume
that all guarantees of Article 6 apply to enforcement proceedings. Rather, it can also be explained by
subjecting enforcement proceedings only to a general fairness test as suggested in the text
below.
[131] It is well established that
the ‘right to a court’, of which the right of access is one aspect, is not absolute; it is
subject to limitations permitted by implication and calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard (Annoni di Gussola v
France (n 72), para 48; Edificaciones March Gallego
S.A. v Spain (ECtHR), Judgment 19 February 1998
[ECLI:CE:ECHR:1998:0219JUD002802895], Reports 1998-I, 290, para 34; García Manibardo v Spain (ECtHR), Judgment 15 February 2000
[ECLI:CE:ECHR:2000:0215JUD003869597], ECHR 2000-II, para 36).
[132] This construction of Article
6 is similar to the Court’s decisions on legal aid: While the Court consistently has held that an
application for legal aid falls outside the scope of Article 6 (see, eg, Ivanova
v Finland (ECtHR), Judgment of 28 May 2002 [ECLI:CE:ECHR:2002:0528DEC005305499],
no 53054/99), it has also pointed out that availability of legal aid for indigent defendants may be
important in assessing the fairness of a proceeding (see Airey v Ireland
(ECtHR), Judgment of 9 October 1979 [ECLI:CE:ECHR:1979:1009JUD000628973],
Series A no 32) and that the decision on an application for legal aid may not be arbitrary.
[133] Krone
v Austria (n 119).
[134] It is well established that
the nature of the right or obligation under domestic law is not decisive: what matters is whether
according to general objective principles, in which context the legal systems of the other contracting
States must also be taken into consideration, the character of a ‘civil right’ or
‘civil obligation’ can be assigned to the right or obligation at issue, taking into account
in particular the capacity of the person claiming the right and the conditions in which he exercises or
wishes to exercise it. See König v Germany (ECtHR), Judgment of 28 June 1978, Series A no 27, 30; H. v
Belgium (ECtHR), Judgment of 30 November 1987
[ECLI:CE:ECHR:1987:1130JUD000895080], Series A no 127, 33 – 34.
[135] Section 661 paragraph 2
Portuguese Code of Civil Procedure. See Guincho v Portugal (ECtHR), Judgment of 10 July 1984 [ECLI:CE:ECHR:1984:0710JUD000899080], Series A no 81;
Silva Pontes v Portugal (ECtHR), Judgment of 23 March 1994
[ECLI:CE:ECHR:1994:0323JUD001494089]; see also Martin Moreira v Portugal
(ECtHR), Judgment of 26 October 1988 [ECLI:CE:ECHR:1988:1026JUD001137185], Series A
no 143, para 44. In this case the Court found a violation because already the first stage of proceedings
took too long.
[136] Silva
Pontes v Portugal (n 136) para 30.
[137] Silva
Pontes v Portugal (n 136) para 30, citing Pudas v
Sweden (ECtHR), Judgment of 27 October 1987
[ECLI:CE:ECHR:1987:1027JUD001042683], Series A no 125-A, para 31. In Silva
Pontes, the Court also expressly stated that the dispute (contestation) over the
applicant’s right to damages would only have been resolved by the final decision in the
enforcement proceedings (para 33).
[138] See W. v Austria (ECtHR), Judgment of 13 July 1988
[ECLI:CE:ECHR:1988:0713DEC001075784], No 10757/84, DR 56, 36 (not decided because W. lacked standing).
[139] Krone
v Austria (n 119).
[140] Immobiliare Saffi v Italy (n 89).
[141] In Immobiliare Saffi (n 89) the delay of the enforcement
proceedings was in part (although not exclusively) due to a repeated extension of stays of eviction
proceedings by legislative measures, not by court orders.
[142] T Hoeren, ‘Der
Pfändungs- und Überweisungsbeschluß: Praktikabilität vor Verfassungsrecht?‘,
(1991) NJW 410.
