PECENKA v. THE CZECH REPUBLIC
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Svatopluk Pečenka, is a Czech national who was born in 1930 and lives in Branky. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In a judgment of 30 May 1995 the Vsetín District Court (okresní soud), following the applicant’s action of 5 September 1994, ordered an agricultural and commercial cooperative in liquidation to pay CZK 454,765.66 (EUR 18,149) to the applicant. On 22 January 1996 the Ostrava Regional Court (krajský soud) upheld the first instance judgment which became final on 14 June 1996. On 17 October 1996 and 16 April 1997 respectively, the defendant paid CZK 2,957.34 (EUR 118) and CZK 3,979 (EUR 159) to the applicant who, on 17 June 1997, applied to the District Court for enforcement of the above judgment by way of the compulsory satisfaction of the claim in the amount of CZK 50,000 (EUR 1,995) from the defendant’s bank’s account. On 23 June 1997 the court ordered the enforcement. The order became final on 11 July 1997. On 12 January 1998 the applicant informed the District Court that the bank had not yet paid him anything from the defendant’s account. By a letter of 20 January 1998 the bank informed him that on 25 July 1997 it had transferred CZK 7,220.40 (EUR 288) to his account. On 25 January 1998 the enforcement proceedings terminated under Article 307 § 3 of the Code of Civil Procedure. On 30 June 1997 the Ostrava Regional Commercial Court (krajský obchodní soud) declared the defendant bankrupt. On 12 February 1998 the applicant submitted his unsettled claims of CZK 447,545 CZK (EUR 17,861) against the bankrupt’s estate. On 10 December 2004 the Regional Court adopted a resolution to distribute the bankrupt’s estate, the applicant being granted CZK 98,900 (EUR 3,947). On 30 December 2004 the applicant appealed to the Olomouc High Court (vrchní soud). It appears that the proceedings are still pending. Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages. On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time. Under Article 305 of the Code of Civil Procedure the court shall notify the entitled party and the financial institution of the finality of the resolution whereby it has ordered the enforcement of a decision; it shall serve the notification on the financial institution by personal delivery. Article 307 § 3 provides, inter alia, that if the receivable being recovered, and incidentals thereto, the debt has not been paid in full, the financial institution shall carry out the enforcement of the decision also on the day following the day on which such an amount of funds is credited to the account, which is required for the entitled party’s full satisfaction. If the above does not take place within six months of the service of the notification under Article 305, the financial institution shall carry out the enforcement from additionally credited funds also on the day that follows the expiry of the above period of time, or, as applicable shall notify the entitled person that no funds were in the liable party’s account. The financial institution shall debit the receivable to the account, and pay it to the entitled person, also if such funds do not suffice to satisfy the entitled party in full.