BOLKVADZE v. ESTONIA
Inadmissible
Peer Lorenzen
The applicant, Mr Temura Bolkvadze, is a Russian national, who was born in 1969 and lives in Tallinn. The respondent Government are represented by Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant and Y.N., his wife, jointly owned an apartment which was registered in the wife’s name. On 7 June 1996 Y.N. concluded a pledge agreement in favour of an insurance company, AS Blig, by which her sister’s loan of 60,000 Estonian kroons (EEK) (3,834 euros (EUR)) was secured by the apartment. According to the pledge agreement Y.N. confirmed that she was single and that no third parties had claims to the apartment. The agreement was drafted by a notary in Estonian. It was confirmed in the agreement that its text had been translated by the notary from Estonian into Russian prior to it being signed by the parties. It was also confirmed that the text of the agreement had been read to the parties and that it had complied with their will. According to the applicant, the content of the agreement had not been translated for Y.N. who was of Russian origin and did not understand Estonian. The notary had only shown her the space for her signature. It had not been explained to her that without her husband’s consent she was not entitled to conclude the pledge agreement. As M.S., Y.N.’s sister, failed to repay the loan, an insurance company AB Elukindlustuse AS, the legal successor of AS Blig, lodged an action against her and Y.N. According to the company, the debt was EEK 216,407 (EUR 13,828) by that time, consisting of the original loan, interest and default interest. The insurance company’s claim lodged with the Tallinn City Court (Tallinna Linnakohus) was for EEK 160,000 (EUR 10,224). The defendants, M.S. and Y.N. did not appear before the court although they had received the summonses. By a default judgment of 3 December 1998 the City Court upheld the claim against M.S. and decided that if she failed to pay the debt, Y.N.’s apartment would have to be sold at a public auction. On 10 December 1998 M.S. lodged a petition with the City Court to set aside the default judgment, as she had been sick at the time of the hearing. On 31 December 1998 she informed the court that she recognised the claim and agreed to pay the debt. She explained that together with her sister, Y.N., she had pledged the apartment. The money received for that had been invested in [an investment company] Safran. They had been paid interest for two months; thereafter, the investment company had gone bankrupt. M.S. requested that she be given a possibility to repay the debt in several instalments and that the pledged apartment not be sold. Y.N. did not respond to the claim. On 9 April 1999 the City Court held a hearing. The defendants failed to appear, although they had received summonses. M.S. had asked the court to hear the case in October or November, as she had taken up employment on a ship and could thus pay the debt in the future. The court had not been informed of the cause of Y.N.’s failure to appear. On the plaintiff’s request, the court made a default judgment on 16 April 1999. It upheld the claim and ordered the sale of the apartment at a public auction. On 16 April 1999 the applicant accepted the delivery of the judgments addressed to both Y.N. and her sister. On 18 October 1999 the bailiff of the Tallinn City Court’s Enforcement Department recorded and seized the flat in the presence of Y.N. The latter made no requests or observations. On 10 March 2000 the apartment was sold at a public auction. I.K., the only person who made a bid, acquired the apartment for EEK 120,000 (EUR 7,668). In the applicant’s opinion, the market value of the apartment was EEK 240,000 (EUR 15,335). According to the auction record, I.K. and A.K. were present as witnesses. On 4 April 2000 the applicant brought an action in the Tallinn City Court against Y.N. and AB Elukindlustuse AS. According to the statement of claim he had obtained information concerning the pledge agreement from the bailiff on 21 March 2000. He requested the City Court to invalidate the pledge agreement, relying on section 17(4) of the Family Act (Perekonnaseadus) and section 66 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus). In her reply of 27 May 2000, Y.N. recognised the applicant’s claim. It had been an error on the part of the notary to attest the pledge agreement without the applicant’s consent. On 27 May 2000 the applicant submitted to the City Court that on 27 April 2000 he had become aware of the fact that on 10 March 2000 the apartment had been sold at a public auction to I.K. He argued that the sale of the apartment at public auction could not have been lawful due to the unlawfulness of the pledge agreement. Therefore, the sale of the joint property at the auction had had no basis in law. He made a reference to Article 64-7 of the Code of Debt Enforcement Procedure (Täitemenetluse seadustik). Moreover, he contended that he had unwillingly lost the possession of the apartment. Accordingly, under section 95(3) of the Property Act (Asjaõigusseadus), the buyer at the auction had not become the owner of the apartment. He requested that the results of the auction be declared invalid, that his entitlement to half of the apartment be recognised and that the apartment, which had been unlawfully repossessed, be returned. On 8 September 2000 the City Court involved I.K. in the proceedings as a defendant. On 8 March 2001 the applicant made a request to amend the claim. He argued that the fundamental conditions of the auction had been violated, since joint property could be sold only with the consent of the joint owners. However, he had not given such consent. He relied on Articles 64-7 and 6410(4) of the Code of Debt Enforcement Procedure. On 22 March 2001 the City Court involved the State in the proceedings as a defendant. At the hearing of 23 October 2001 the applicant’s lawyer argued that the conduct of the auction had been in violation of law. The applicant had not been informed about the auction and he had become aware of the sale of the apartment only after the auction. According to I.K. he had been to see the apartment in the evening of the auction day. He had met the applicant who had told him that he was Y.N.’s husband and that I.K. would not get the apartment. By a judgment of 7 November 2001 the City Court upheld the claims in part. It found it established that the apartment had been privatised [bought on favourable conditions from the municipality] in 1994, when the applicant and Y.N. were already married. Therefore, the apartment had been in the joint ownership of the spouses. It further observed that, according to section 17(4) of the Family Act, movable property in the joint ownership of spouses, where it had to be entered in a register, could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse’s name the property had been registered. The City Court concluded that there had been a substantial breach of law and declared the pledge agreement invalid, relying on, inter alia, section 66 of the Civil Code (General Principles) Act. The remainder of the applicant’s claims were rejected by the City Court. The court found that there was no legal ground to invalidate the results of the public auction as its fundamental conditions had not been violated. Nor was there any ground to recognise the applicant’s entitlement to a half legal share in the apartment, since the buyer had acquired the apartment at a public auction arranged in order to secure the execution of a court judgment. The buyer’s title to the apartment was protected under section 95(3) of the Property Act. The City Court held that Article 64-10 of the Code of Debt Enforcement Procedure concerning regulations with regard to joint property was not applicable in the case, since the case at issue concerned enforcement in respect of pledged property. Accordingly, Article 64-11, a provision concerning pledged property, had to be applied. The applicant had not alleged a violation of that provision. In his appeal the applicant argued that it was incomprehensible that the City Court, having invalidated the pledge agreement, had refused to recognise the applicant’s title to the apartment. He argued that he had lost possession of the apartment against his will and, therefore, he was entitled to claim possession of the property. He was of the opinion that due to the invalidity of the pledge agreement the subsequent transactions could have no legal effect. He also raised the question of State responsibility in respect of the sale of the apartment, arguing that the State should have verified all the relevant circumstances. He noted that he had been entered into a register as Y.N.’s husband and that the apartment in issue was his permanent place of residence. He argued that I.K. could not be considered a bona fide owner and that the conduct of the auction had been in breach of law, since it had concerned the spouses’ joint property which had been pledged unlawfully. On 19 April 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) dismissed the appeal. It found that the auction had been lawful and rejected the applicant’s allegation that I.K. was entitled to claim compensation from the State. The Court of Appeal noted that according to the principle of abstraction (abstraktsiooniprintsiip) underlying the Property Act, the invalidity of a contract creating obligations (kohustustehing) [e.g. a sales contract or pledge agreement] did not render invalid the transfer of property (käsutustehing). Even the transfer of property by a person who was not the owner could have legal consequences and was not inevitably invalid. Therefore, the fact that the pledge agreement had been declared invalid in this case did not mean that the remainder of the applicant’s claims had to be upheld. The court could not declare the auction invalid on the grounds relied on by the applicant. Therefore, his claims concerning the recognition of his title and repossession of the property were also unfounded. Since I.K. had acquired title to the apartment at a public auction held on the basis of a court judgment, his right of ownership could not be affected by challenging the preceding transactions. The right of the holder of the pledge to have the object of the pledge sold at an auction had been confirmed by a judgment. I.K.’s title was protected against the disputes between the previous owners and other persons. The arguments concerning the bad faith of the buyer were irrelevant in a case where the property was acquired at an auction. A compulsory auction could be invalidated only on grounds provided for by the law, i.e. in case a fundamental breach of law had been involved in the conduct of the auction. The applicant had not relied on any such ground in his claim. The court noted that there existed no register concerning conclusion and dissolution of marriages. The Court of Appeal noted that the applicant had the right to lodge a claim against his wife who had concluded the pledge agreement concealing the fact that she had been married. The applicant appealed to the Supreme Court (Riigikohus). He submitted that on the basis of the City Court’s judgment of 16 April 1999 the apartment, where he also lived, had been sold at an auction. He argued that he had become aware of that when the apartment had already been sold. On 7 November 2001 the City Court had declared the pledge agreement invalid. According to section 66 of the Civil Code (General Principles) Act, a void transaction was invalid from inception, it had not to be performed and the parties to it should return what had been received by the void transaction, or if this was not possible, they should compensate for it in money. As the judgment of 16 April 1999 had been based on an invalid agreement, the judgment itself was also unlawful and invalid. Therefore, the auction sale of the apartment had also been unlawful. He claimed that the Ministry of Justice had to compensate the material damage caused to him by the unlawful judgment of 16 April 1999. Moreover, he contended that he had known nothing about the sale of the apartment. The information concerning public auctions was published only in the “Official Notices” (Ametlikud Teadaanded). Ninety-eight per cent of the population was unaware of the existence of such a publication. It was published only in the Estonian language, while more than one third of the Estonian population did not know Estonian. This was in violation of Article 12 of the Estonian Constitution, according to which no one should be discriminated against on the basis of language. An auction was business – that was why each inhabitant of the country had the right to be informed about it and the information should be published in several languages. Therefore, Article 44 of the Constitution, according to which everyone had the right to receive information, was violated. The applicant also argued that section 95(3) of the Property Act was ambiguous and contrary to the Constitution and international legal practice. He requested that the Supreme Court quash the Court of Appeal’s judgment in so far as the court had recognised the lawfulness of the acquisition of the apartment by I.K., since the acquisition that was clearly based on fraud could not be considered lawful. He further requested that the results of the auction be invalidated and that the constitutionality of the auction rules and section 95 of the Property Act be examined. Finally, he requested that the degree of responsibility of the Ministry of Justice for the unlawful acts of the judge who had made the judgment of 16 April 1999 be determined. On 16 August 2002 the Supreme Court refused the applicant leave to lodge an appeal with it. Section 17(4) of the Family Act (Perekonnaseadus) provided that movable property in the joint ownership of spouses, where it had to be entered into a register, could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse’s name the property was entered in the register. According to section 66 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus), a void transaction was invalid from inception, it had not to be performed and the parties to it had to return what had been received by the void transaction, or if this was not possible, they had to compensate for it in money. According to section 95 of the Property Act (Asjaõigusseadus) a person who had acquired an object by delivery in good faith would not become its owner, if the owner had been deprived of possession of the object against his or her will. An exception was made in respect of objects which had been sold at a public auction. A buyer at a public auction acquired the object regardless of whether its owner had been deprived of possession against his or her will. Article 26 § 1 of the Code of Debt Enforcement Procedure (Täitemenetluse seadustik) provided that the debtor and the claimant had, inter alia, the right to be present at the enforcement actions performed by the bailiff, to have access to the materials of the enforcement case file, to make statements concerning the enforcement procedure, to present opinions about the ownership and price of the property and to lodge an appeal against the bailiff’s activities to the head of the enforcement department or to the court. Under Article 34 § 2(5) of the Code the head of the enforcement department could suspend the enforcement proceedings in case a complaint concerning the activities of the bailiff had been lodged. According to Article 36 § 2 of the Code the decision of the head of the enforcement department could be challenged in a county or city court. According to Article 63 of the Code the auction had to be conducted in the presence of two witnesses or a police officer. Article 64-7 of the Code stipulated that a court had to declare an auction invalid, within five years from its date, if the object had been sold to a person who had had no right to buy it or if other fundamental conditions of the auction had been violated. Article 64-10 § 4 of the Code provided that joint property as a whole could be sold only with the consent of the joint owners. According to Article 64-10 § 5 of the Code, upon signing the report of seizing the property or upon receiving it, the debtor was required to inform the bailiff about the existence of items belonging to joint or common ownership among the seized property. Otherwise the debtor would forfeit his or her right to base a complaint concerning the incorrect drawing up of the report on these grounds. Article 64-11 § 1 of the Code provided that pledged property could be seized or sold only with the consent of the holder of the pledge. According to Article 77 of the Code the debtor and the claimant could lodge a complaint to the head of the enforcement department in respect of the activities of the bailiff. The complaint could be lodged within ten days of the performance of the action complained of or from the day on which the complainant became aware of the action. The complaint had to be reviewed with the participation of the claimant and the debtor within ten days. An appeal against the decision of the head of the enforcement department could be lodged with a county or city court. The court had to review the complaint within two weeks; the court’s decision could be appealed against pursuant to the procedure provided for in the Code of Civil Procedure. Article 147 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) set forth the requirements in respect of the form and content of a statement of claim. It had to be submitted to a court in writing and had to set out, inter alia, the clearly expressed claim of the plaintiff, the facts on which the action was based and evidence which proved the relevant facts. According to Article 154 § 1 of the Code a plaintiff had the right to amend the cause or object of an action before the summations in a court of first instance by submitting a petition to that effect. The provisions concerning a statement of claim applied to such petition. Article 319 § 2 of the Code provided that in an appeal against a judgment of a first instance court, a plaintiff did not have the right to amend the cause or object of action, or to file a claim which had not been filed in the court of first instance. According to Article 353 of the Code the Supreme Court had to verify on the basis and within the limits of an appeal whether a court of appeal had correctly interpreted and applied the law and whether the court had correctly observed the provisions of procedural law (§ 1). In an appeal to the Supreme Court, an appellant did not have the right to amend the cause or object of action or to submit claims that had not been submitted earlier (§ 2). The Supreme Court could not establish the facts underlying the action. It had to base its judgment on the facts established by a lower court (§ 3). Under Article 372 § 1(2) of the Code a person whose rights and duties had been adjudicated by a court, but who had not been involved in the proceedings, could request the Supreme Court to rectify the judgment concerned (kohtuvigade parandamise avaldus). According to section 2(1) of the Notaries Act (Notariaadiseadus), notaries’ offices were institutions in public law whose duty was to certify interpersonal legal relationships and legal facts, within the limits determined by the State, in order to secure the protection of the lawful rights of persons and the State, and the stability of public order. Section 3(1) of the Act provided that a notary was an independent person who held a State office as a contractor and performed the duties of a notary pursuant to the procedure prescribed in this Act and other legislation. Section 3(5) of the Act stipulated that a notary was liable for damage caused by his or her professional activities to the extent provided for in section 20 of this Act. The State was not liable for damage caused by a notary. According to section 20(1) of the Act a notary was liable for direct proprietary damage caused as a result of wrongful acts performed by him or her intentionally or due to gross negligence. Section 20(2) provided that a notary was liable for damage caused by negligence only to the extent that the damage remained uncompensated by other persons who had caused it. The Civil Law Chamber of the Supreme Court has held a notary responsible for the financial loss the plaintiff suffered as a result of the notary’s failure in 1997 to verify the authority of the parties to enter into a transaction (the Supreme Court settled the case finally on 16 June 2004, having heard it on three occasions – cases nos. 3-2-1-129-02, 3-2-1-125-03, 3-2-1-74-04) According to the decision of 6 February 1998 of the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-3-98), complaints against the activities of the bailiff were subject to adjudication in the county or city court, where a person was unsatisfied with the decision taken in the matter by the head of the enforcement department. In the judgment of 30 December 2003, the Tallinn Court of Appeal (case no. 2-2/1549/2003) confirmed the Tallinn City Court’s view that the failure of a bailiff to inform the debtor of his or her rights in the enforcement proceedings constituted a violation of fundamental conditions of the auction in which case the auction had to be declared invalid. A similar position was taken by the Civil Law Chamber of the Supreme Court in the judgment of 16 November 2004 (case no. 3-2-1-122-04). The Supreme Court declared an auction invalid since the bailiff had failed to inform the debtor sufficiently about the enforcement proceedings and had thus infringed the latter’s right to be present during the performing of an enforcement action.