FIRST SECTION
DECISION
Application no. 43569/13
Zorislav SEKUL
against Croatia
The European Court of Human Rights (First Section), sitting on 30 June 2015 as a Chamber composed of:
Isabelle Berro, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 25 June 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Zorislav Sekul, is a national of Croatia and Australia, who was born in 1936 and lives in Supetar. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad.
2. The Croatian Government ("the Government") were represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant and his wife moved to Croatia from Australia sometimes in 1997/1998 and they bought a flat in Supetar from B.M. and D.M.E. Although there was no written purchase agreement, the applicant paid the full purchase price and moved into the flat.
5. Meanwhile, the applicant's wife was admitted to a nursing home in Nerežišća and the applicant moved to a rest home in Supetar.
1. Civil proceedings instituted by the applicant
6. On 18 January 1999 the applicant brought an action in the Supetar Municipal Court (Općinski sud u Supetru) against B.M. and D.M.E., seeking a court order for the conclusion of a written sale and purchase agreement concerning the flat.
7. On 10 May 1999 the Supetar Municipal Court ruled in the applicant's favour but on 4 October 2002 the Split County Court (Županijski sud u Splitu), as the court of appeal, quashed the first-instance judgment and remitted the case on the grounds of inadequate reasoning of the judgment.
8. In the resumed proceedings, on 14 January 2003, the applicant, represented by lawyer Z.I., amended his civil action seeking the award of title of ownership over the flat and the performance of certain construction works by B.M. and D.M.E.
9. During the proceedings, B.M. and D.M.E. lodged a counterclaim against the applicant seeking annulment of the oral sale and purchase agreement.
10. On 22 August 2003 the Supetar Municipal Court accepted the applicant's action, awarded him the title of ownership over the flat and ordered B.M. and D.M.E. to perform the requested construction works. It also dismissed B.M.'s and D.M.E.'s counterclaim.
11. On 9 June 2005 the Split County Court upheld the first-instance judgment concerning the title of the applicant's ownership and the dismissal of B.M.'s and D.M.E.'s counterclaim, whereas it quashed the part of the judgment concerning the performance of construction works and in that part remitted the case for re-examination.
12. In the resumed proceedings the applicant complained to the Split County Court about the length of the proceedings before the Supetar Municipal Court.
13. On 25 January 2008 the Split County Court found a violation of the applicant's right to a hearing within a reasonable time, awarded him 7,000 Croatian kunas (HRK) in compensation and ordered the Supetar Municipal Court to decide the case within six months.
14. In September 2008 lawyer Z.I. informed the Supetar Municipal Court that he no longer represented the applicant, and in January 2009 lawyer J.A.M. informed that court that he was the applicant's representative.
15. On 30 January 2009 the Supetar Municipal Court partially accepted the applicant's civil action concerning the construction works, ordering B.M. and D.M.E. to carry out some additional works on the doors and windows, façade and the parquet floor in the applicant's flat. In addition, it authorised the applicant, in the case of a failure of B.M. and D.M.E. to comply with that order, to carry out the construction works himself at the expense of B.M. and D.M.E. The applicant was also awarded costs and expenses in the amount of HRK 88,732.
16. This judgment was upheld on appeal by the Split County Court on 21 January 2010. It thus became final, and on 17 March 2010 it became fully enforceable.
2. The enforcement proceedings against B.M. and D.M.E.
17. On 29 November 2011 the applicant, represented by lawyer D.R., instituted enforcement proceedings against B.M. and D.M.E. in the Supetar Municipal Court concerning the performance of construction works ordered in the judgment of 30 January 2009 (see paragraphs 15 and 16 above). Relying on section 217 of the Enforcement Act, the applicant requested that B.M. and D.M.E. should comply with their duty to finish the construction work within a period of eight days and, in case of a failure on their part to comply with the judgment, to pay an enforcement fine (sudski penali) of HRK 500 for every further day of delay.
18. After unsuccessful friendly settlement arrangements, and several orders of the Supetar Municipal Court to correct his request for enforcement, on 29 June 2012 the applicant reiterated his request, under section 217 of the Enforcement Act, asking that B.M. and D.M.E. be given an additional period of fifteen days to comply with the judgment and, in case of a failure on their part, to pay an enforcement fine of HRK 500 for every further day of delay.
19. On 5 July 2012 the Supetar Municipal Court accepted the applicant's request and ordered B.M. and D.M.E. to comply with the judgment of 30 January 2009 within a period of fifteen days, and, in case of a failure to that effect, to pay an enforcement fine in the amount of HRK 500 to the applicant for every further day of delay.
20. On 13 July 2012 B.M. and D.M.E. challenged the time-limit set out for the enforcement, seeking its postponement due to the upcoming tourist season. On 10 May 2013 the Supetar Municipal Court dismissed the request unfounded.
21. On 27 May 2013 B.M. and D.M.E. appealed to the Split County Court against the dismissal of their request for the postponement of the enforcement, arguing in particular that the construction works could not be performed during the tourist season and that the applicant had denied their workers access to the flat.
22. On 23 July 2013 the Split County Court dismissed the appeal lodged by B.M. and D.M.E. as unfounded, upholding the Supetar Municipal Court's order for the payment of an enforcement fine.
23. The applicant did not seek the enforcement of that order by seeking payment of the awarded amount.
3. Enforcement proceedings against the applicant instituted by Z.I.
24. On 23 October 2008 lawyer Z.I., who represented the applicant in his civil proceedings instituted against B.M. and D.M.E. (see paragraphs 8-14 above), asked a public notary in Solin to issue an enforcement order on the applicant's property in general for the payment of lawyer's fees in the amount of HRK 83,229.86, together with the statutory default interest.
25. The following day the public notary accepted the request and issued an enforcement order on the applicant's property. It instructed the applicant that he could lodge an objection against the order with the competent civil court within a period of eight days following its service on him.
26. The material available to the Court contains a delivery note of this decision dated 31 October 2008, bearing in handwriting the applicant's last name.
27. As there was no objection against the public notary's decision it became final on 8 November 2008.
28. On 12 February 2009 the applicant, represented by lawyer J.A.M., requested the public notary to re-open the proceedings arguing that he had not received the enforcement order on 31 October 2008, and that he had only later learnt of its existence. He also challenged the validity of the enforcement order.
29. After receiving the request, the public notary forwarded it to the Supetar Municipal Court for its examination and decision.
30. On 9 June 2009, after hearing the parties' arguments, the Supetar Municipal Court declared the applicant's request inadmissible as being lodged out-of-time. In particular, the Supetar Municipal Court found that there was no doubt that the enforcement order issued by the public notary had been served on the applicant on 31 October 2008, which was therefore taken as the date when the three-month time-limit for lodging a request for re-opening had started running. Accordingly, as the applicant's request had been lodged on 12 February 2009, it followed that it was lodged out-of-time.
31. The Supetar Municipal Court informed the applicant that he could lodge an appeal against this decision with the Split County Court. The applicant did not avail himself of that possibility.
32. Meanwhile, Z.I. asked the Supetar Municipal Court to enforce the public notary's enforcement order by the judicial sale of the applicant's flat. Following the applicant's protests, the Supetar Municipal Court on 8 February 2010 invited the parties to provide further comments on the case.
33. After receiving the parties' further submissions, on 23 February 2010 the Supetar Municipal Court, in view of the applicant's specific complaints, advised him to institute a separate set of civil proceedings requesting an interdiction of the further enforcement on his property based on Z.I.'s enforcement request. The applicant did not avail himself of this possibility.
34. On 20 May 2010 a hearing was held before the Supetar Municipal Court with a view of establishing the value of the applicant's flat. It was decided that the competent tax authority would be requested to provide the relevant information in that respect.
35. On 3 February 2011 the Supetar Municipal Court, on the basis of available information, set the value of the flat at HRK 84,000 and ordered its judicial sale on 13 April 2011.
36. On 7 April 2011 Z.I. asked the Supetar Municipal Court to postpone the judicial sale of the applicant's flat for a further six months so as to allow him the possibility to settle the debt by other means.
37. In October 2011 Z.I. requested the Supetar Municipal Court to resume the enforcement proceedings.
38. In January 2014 Z.I. informed the Supetar Municipal Court that so far he managed to receive HRK 22,307.21 from the applicant and that the applicant still owned him HRK 60,922.55. He therefore adjusted his claim, asking seizure of the amount awarded to the applicant on account of costs and expenses of the proceedings against B.M. and D.M.E. (see paragraph 15 above).
39. On 7 February 2014 the Supetar Municipal Court accepted Z.I.'s revised enforcement request.
40. It appears that the enforcement proceedings are still pending.
B. Relevant domestic law
1. Constitution
41. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:
Article 29
"In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law."
Article 35
"Everyone has a right to respect for and legal protection of his ... family life, ..."
Article 48
"The right of ownership shall be guaranteed ..."
2. Enforcement Act
42. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette, nos. 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05 and 67/08), which was in force between 11 August 1996 and 14 October 2012, read as follows:
Institution of the proceedings
Section 3
"(1) The enforcement proceedings shall be instituted upon the request of the creditor ..."
Limits on the means and objects of enforcement and injunctions
Section 5
"(1) The court shall order enforcement ... by the means and on the objects set out in the request for enforcement ..."
Legal remedies
Section 11
"...
(2) An enforcement order issued on the basis of a reliable document can be challenged by an objection.
..."
Appeal on points of law, reopening and reinstatement of the proceedings
Section 12
"...
(2) Reinstatement of the proceedings shall be allowed only in case of a failure to meet the time-limits for an appeal or objection."
Application of the provisions of other Acts
Section 19
"(1) In the enforcement proceedings ... the provisions of the Civil Procedure Act shall apply mutatis mutandis, unless otherwise provided under this or some other Act.
..."
Appeal against an enforcement order issued on the basis of an enforceable document
Section 46
"(1) Against the enforcement order the debtor may lodge an appeal:
...
10. if the enforcement of the claim is, even if temporarily, postponed, prohibited, amended or otherwise impossible due to the fact which appeared at the moment when the debtor could not have raised it any longer in the proceedings in which the decision adopted ..., or
11. if the claim, set out in the enforcement document, is time-barred."
Referral [of the case] to the civil proceedings on the basis of an appeal
Section 48
"(1) If an appeal has been lodged for one of the reasons under section 46 § 1 ... (9)-(11) of this Act, the first-instance court [conducting the enforcement proceedings] shall forward the appeal to the creditor for a comment ...
(2) If the creditor accepts that one of the reasons referred to in the appeal exists, the court shall terminate the enforcement proceedings.
(3) If the creditor challenges the existence of those reasons ..., the first-instance court [conducting the enforcement proceedings] shall without further delay instruct the debtor that he or she can, within the period of fifteen days following the finality of the decision [by which the instruction has been issued], institute the civil proceedings asking for an interdiction of the further enforcement on the grounds of the existence of reasons referred to in paragraph 1 of this section for which the appeal has been lodged.
..."
Proceedings concerning an objection against an enforcement order issued
on the basis of a reliable document
Section 54
"(1) If in his or her objection against the enforcement order issued on the basis of a reliable document the debtor has not indicated in which part the order is challenged, it shall be presumed that the order is challenged in whole.
(2) If the enforcement order is challenged in whole, or only in the part in which the debtor was ordered to comply with the claim, the court to which the objection has been submitted shall set aside the enforcement order in the part in which the enforcement had been ordered ... and the proceedings shall continue as if an objection against a payment order [issued by the competent civil court] has been made."
Enforcement fine
Order for an enforcement fine
Section 217
"(1) If the debtor does not comply with his or her non-monetary duty to perform an action ... established in a final court decision ..., the court in the enforcement proceedings shall, on the basis of a request by the creditor, set out a further appropriate time-limit for the debtor [to comply with his or her duty] and [it will also] order that the debtor shall, in case of a failure to comply with his or her duty within that time-limit, pay to the creditor a certain amount of money for each day of delay ... (enforcement fine), starting from the expiry of the time-limit.
...
(4) The payment of the enforcement fine can be sought until, on the basis of the enforceable [title], the enforcement of the non-monetary relief is sought.
(5) The right to [seek] the enforcement fine terminates on the day when the request for enforcement referred to in paragraph 4 of this section is submitted. Enforcement of the payment of [the amount awarded by] the enforcement fine due on that day can be sought [by seizure of the debtor's bank accounts].
..."
Enforcement of the payment of [the amount awarded by] the enforcement fine
Section 218
"On the basis of a final decision ordering the enforcement fine under section 217 of this Act, the court shall, in the same enforcement proceedings where that decision was made, upon the request of the creditor, order the enforcement of the [amount] awarded by the enforcement fine."
Enforcement proceedings concerning the duty to an action which can also be performed by another person
Section 231
"(1) The enforcement of the duty to an action which can also be performed by another person shall be conducted so that the court shall authorise the creditor to commission, within a certain time-limit and on the expense of the debtor, from another person the performance of that action or to carry it out himself or herself.
(2) In his or her request, the creditor may ask the court to order the debtor to deposit in advance certain amount [of money] at the court, necessary for the expenses related to the performance of the action by the third party or the creditor. ..."
Competence of public notaries
Section 252a
"Public notaries shall be competent to decide upon a request for enforcement on the basis of a reliable document, in accordance with this Act."
Proceedings concerning a request [for enforcement]
Section 252d
"(1) If the public notary finds that the request for enforcement is admissible and justified, he or she shall issue an enforcement order on the basis of a reliable document and shall serve it on the parties.
..."
Objection against the enforcement order issued on the basis of a reliable document
Section 252e
"(1) The debtor may lodge an objection against the enforcement order issued on the basis of a reliable document to the public notary who issued [the order].
(2) The public notary who received a belated or inadmissible objection against the order which he or she had issued, shall forward the case file for a decision on the objection to the competent court (section 252j), which shall declare such an objection inadmissible.
...
(4) The case file forwarded to the competent court ..., upon the termination of the [relevant] proceedings, shall remain at the court."
3. The Civil Procedure Act
43. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07 and 84/08) in its relevant part provides:
Reinstatement of the proceedings
Section 117
"(1) If a party fails to meet ... the time-limit for a procedural action and therefore loses the right take that action, the court shall, upon his or her request, allow to that party to take that action later (reinstatement of the proceedings) if it finds that this omission was the result of a justifiable reason.
..."
Section 118
"...
(4) After the expiry of three months following the failure [to take the procedural action] the reinstatement of the proceedings cannot be sought.
..."
Payment order
Section 452
"(1) If the defendant objects to the payment order ..., the court shall first decide upon that objection. If it finds that the objection is justified, it shall quash the payment order and, after the finality of that decision, open the proceedings on the subject matter [of the dispute] ...
(2) If the court does not accept that objection, it shall open the proceedings on the subject matter [of the dispute], and the decision of the court [concerning the objection] shall be part of the decision on the subject matter [of the dispute].
..."
4. Courts Act
44. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011 and 13/2011), applicable in the case issue, read as follows:
III. PROTECTION OF THE RIGHT TO A TRIAL WITHIN
A REASONABLE TIME
Section 27
"(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction.
..."
Section 28
(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid out of the State budget within three months of the date on which the party's request for payment is lodged.
..."
5. Civil Obligations Act
45. The relevant provision of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011) provides:
Claims established before a court or another competent body
Section 233
"(1) All claims established by a final court decision ... shall be time-barred after the expiry of [the time-limit of] ten years, even if the law provides shorter period of prescription.
..."
COMPLAINTS
46. The applicant complained, invoking Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No.1, about his inability to enforce effectively the civil court judgment of 30 January 2009, as upheld on appeal on 21 January 2010.
47. The applicant also complained, under Article 1 of Protocol No. 1, that the enforcement proceedings instituted by Z.I. were unlawful and disproportionate.
THE LAW
A. The applicant's complaint concerning the enforcement proceedings against B.M. and D.M.E.
48. The applicant complained of his inability to enforce effectively the civil court judgment of 30 January 2009, as upheld on appeal on 21 January 2010. He relied on Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 6
"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ..."
Article 8
"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 a public authority with the exercise of this 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 or morals, or for the protection of the rights and freedoms of others."
Article 1 of Protocol No. 1
"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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
1. The parties' arguments
(a) The Government
49. The Government pointed out in particular that the applicant had not availed himself of the available possibilities under the relevant domestic law by which he could have effectively enforced the judgment in his favour. In particular, the Government pointed out the applicant's enforcement request before the Supetar Municipal Court had been limited to asking that court to fix an additional time-limit for B.M. and D.M.E. to perform the construction works and to threaten them with the enforcement fine in case of their failure to comply with that order. Once the Supetar Municipal Court had accepted that request, it was open for the applicant, and in fact required under the relevant domestic law, to seek the enforcement of the awarded enforcement fine due to the failure of B.M. and D.M.E. to comply with the court order. However, the applicant never requested the enforcement of the awarded enforcement fine. Accordingly, in the Government's view, the applicant had not effectively sought the enforcement of the judgment in his favour.
50. Moreover, the Government stressed that the applicant had not availed himself of another effective procedural avenue under the Enforcement Act by which he could have asked the Supetar Municipal Court for an authorisation to commission the requisite construction works from another person, or to carry it out himself, at the expense of B.M. and D.M.E. In view of this, the Government considered that the fact that the judgment in his favour against B.M. and D.M.E. had not been enforced was his sole responsibility.
51. Lastly, with regard to any possible complaint about the length of the enforcement proceedings, the Government stressed that the applicant had failed to use the effective domestic length-of-proceedings remedies during the enforcement proceedings.
(b) The applicant
52. The applicant argued that he had attempted to enforce the civil court judgment in his favour against B.M. and D.M.E. by the means of enforcement fines and that thereby he had sufficiently allowed the domestic authorities an opportunity to enforce the judgment in his favour. Given the overall length of the proceedings and the particular circumstances of his case, it was the responsibility of the domestic authorities to enforce the judgment without obliging him to take further actions.
53. In this connection the applicant also stressed that he had availed himself of the domestic length-of-proceedings remedy in the civil proceedings against B.M. and D.M.E. He therefore considered that there had been no need for him to use the same remedy again during the enforcement proceedings, which essentially concerned the same claim, particularly given the fact that the use of that remedy had not expedited the proceedings.
2. The Court's assessment
54. The Court reiterates that execution of a final judgment given by any court must be regarded as an integral part of the "trial" for the purposes of Article 6 of the Convention (see Burdov v. Russia (no. 2), no. 33509/04, § 65, ECHR 2009). However, a delay in the execution of a judgment may be justified in particular circumstances (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III) and the right of "access to court" does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The Court notes that State responsibility for enforcement of a judgment against a private party extends no further than the involvement of State bodies in the enforcement process. When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inaction can engage the State's responsibility under Article 6 § 1 of the Convention (see Bogdan Vodă Greek-Catholic Parish v. Romania, no. 26270/04, § 44, 19 November 2013).
55. In the present case, the dispute was between private parties. Consequently, the Court emphasises that its task is to examine whether the measures applied by the authorities in the present case were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003; and Osmanov v. Azerbaijan (dec.), no. 4582/06, 17 September 2009). In cases such as the present one, which necessitate actions by a debtor who is a private person, the State, as the possessor of public authority, has to act diligently in order to assist a creditor with the execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Lăcătuş and Others v. Romania, no. 12694/04, § 117, 13 November 2012).
56. The Court notes in the case at issue that following the final and enforceable civil court judgment in his favour ordering B.M. and D.M.E to carry out some additional construction works in his flat (see paragraphs 15 and 16 above), the applicant instituted enforcement proceedings before the Supetar Minicipal Court seeking the enforcement of that judgment by relying on section 217 of the Enforcement Act (see paragraph 42 above). In particular, he asked that B.M. and D.M.E. be given an additional period to comply with the judgment and, in case of a failure on their part to that effect, to pay an enforcement fine for every further day of delay (see paragraph 18 above). This request was accepted and the Supetar Municipal Court ordered enforcement as requested by the applicant (see paragraph 19 above).
57. The Court observes that the legal avenue provided under section 217 of the Enforcement Act envisages two procedural stages for the enforcement of a judgment. In the first stage, the court conducting the enforcement proceedings, upon a request of the creditor, orders the debtor to comply with his or her duty established in the final judgment and, in case of a failure to that effect, to pay the creditor an enforcement fine for every further day of delay. In the second stage, as provided under sections 217 § 5 and 218 of the Enforcement Act, the creditor is allowed, in case of a failure of the debtor to comply with the court order, to seek the payment of the amount awarded as the enforcement fine (see paragraph 42 above).
58. Accordingly, once the applicant had availed himself of the possibility to seek enforcement through the legal avenue provided in section 217 of the Enforcement Act, he was required to pursue his claim through the two stages of the process, as there was no positive obligation of the domestic authorities under the relevant domestic law to initiate or pursue the enforcement proceedings on their own motion (see paragraph 42 above, sections 3 and 5 of the Enforcement Act). In this respect the Court reiterates that it is expected of the creditors to act with a certain diligence in order to ensure the enforcement of a judgment, and accordingly it is the creditors' responsibility to make use of available domestic legal remedies or to ask the domestic authorities to assist them with the enforcement of the judgment (see Ciprova v. the Czech Republic (dec.), no. 33273/03, 22 March 2005; and Lăcătuş and Others, cited above, § 120).
59. However, the applicant failed to avail himself of the opportunity to seek the payment of the amount awarded as the enforcement fine; that is to say of the possibility to bring B.M. and D.M.E. in a position of either being obliged to actually pay him the amount of money at issue or complying with the court order to carry out the construction works. In these circumstances, given that the domestic courts issued an enforcement order under section 217 of the Enforcement Act to the extent requested by the applicant, the fact that B.M. and D.M.E. did not comply with that order is something which cannot be imputed to the State (see Fociac, cited above, § 74).
60. Furthermore, the Court observes that the applicant, in securing the effective enforcement of the judgment in his favour, could have availed himself of the possibility provided for in section 231 of the Enforcement Act. In particular, this procedural avenue in the enforcement proceedings envisaged the possibility of commissioning the construction works at issue from another person at the expense of the debtors (see paragraph 42 above). It thus provided for a possibility of effective resolution of the matter, but the applicant failed to avail himself of this opportunity as well. Nevertheless, the Court observes that it still remains open for the applicant to seek the enforcement of the judgment in his favour by the appropriate use of the relevant domestic procedural avenues (see paragraph 45 above).
61. Against the above background, given that the applicant failed to avail himself of the effective legal avenues in the enforcement proceedings, it cannot be said that the State failed to provide the applicant with adequate and sufficient measures to ensure the execution of the judgment. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicant's complaints concerning the enforcement proceedings instituted by Z.I. against him
62. The applicant complained that the enforcement proceedings instituted by Z.I. were unlawful and disproportionate. He relied on Article 1 of Protocol No. 1, which reads as follows:
Article 1 of Protocol No. 1
"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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
1. The parties' arguments
(a) The Government
63. The Government pointed out that the applicant, who had duly received the enforcement order issued by the public notary, had not lodged a timely objection against that order, allowing it thus to become final. However, had the applicant duly availed himself of this opportunity and lodged an objection against the public notary's enforcement order, the case would have been referred to the competent civil court which would have then opened the civil proceedings and examined all the parties' arguments on the matter. Moreover, the Government stressed that, after the Supetar Municipal Court rejected his belated attempt to set the public notary's enforcement order aside, the applicant had not challenged this decision which had thereby become final. Furthermore, the Government contended that in the further course of the enforcement proceedings before the Supetar Municipal Court, the applicant had not followed the advice of that court to institute the civil proceedings seeking an interdiction of the further enforcement on his property based on Z.I.'s enforcement request. Thus, in the Government's view, the applicant had failed to exhaust all available and effective domestic remedies.
(b) The applicant
64. The applicant maintained that the enforcement proceedings instituted against him by Z.I. were unlawful and unfair as they disproportionately affected his property rights. He also submitted that he had challenged the enforcement order issued by the public notary as soon as he had learnt of its existence, and that it had been impossible for him to challenge that enforcement order in the prescribed time-limit since the order had not been properly served on him.
2. The Court's assessment
65. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).
66. The Court notes that Z.I. instituted the enforcement proceedings on the applicant's property in general, by asking a public notary to issue an enforcement order for the payment of lawyer's fees which Z.I. claimed against the applicant for his legal representation in the civil proceedings against B.M. and D.M.E. (see paragraph 24 above).
67. According to the information available to the Court, this enforcement order was served on the applicant on 31 October 2008 and it became final on 8 November 2008, given that the applicant failed to lodge an objection against it (see paragraphs 25-27 above). In this connection the Court finds that there is nothing before it to call into question the findings of the Supetar Municipal Court that the enforcement order at issue was duly served on the applicant as indicated on the delivery note of 31 October 2008, nor did the applicant provide any plausible argument to the contrary (see paragraph 30 above).
68. It therefore follows that the applicant failed to use the effective remedy at his disposal by which he could have challenged the enforcement order issued by the public notary (see paragraph 42 above, sections 54 and 252e of the Enforcement Act).
69. Furthermore, although this did not in principle prejudice the possibility for the applicant to seek for re-opening of the proceedings, he failed to avail himself of that opportunity properly, as required under the relevant domestic law (see paragraph 42 above, sections 12 and 19 of the Enforcement Act; and paragraph 43 above, sections 117 and 118 of the Civil Procedure Act). Specifically, he lodged a belated request for re-opening, and after it was declared inadmissible as being introduced out-of-time, he failed to pursue the matter further by lodging an appeal against that decision (see paragraph 31 above).
70. Nevertheless, the Supetar Municipal Court examined a further appeal lodged by the applicant during the enforcement proceedings and, on the basis of his submissions, advised him to institute civil proceedings before the competent court asking for an interdiction of the enforcement on his property on the basis of Z.I.'s enforcement request. However, the applicant again failed to pursue the matter further and did not avail himself of this possibility (see paragraph 33 above; and paragraph 42 above, sections 46 and 48 of the Enforcement Act).
71. In these circumstances, the Court cannot but find that the applicant failed to use the domestic remedies concerning the enforcement proceedings at issue which, as alleged by him, affected his property rights under Article 1 of Protocol No. 1 to the Convention. The Court therefore rejects the applicant's complaints for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons
, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 July 2015.
Søren Nielsen Isabelle Berro
Registrar President