CEDH · CASELAW;CLIN;ENG — 28 novembre 2006

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law 91 November 2006 Apostol v. Georgia - 40765/02 Judgment 28.11.2006 [Section II] Article 6 Civil proceedings Article 6-1 Access to court Obligation to pay expenses   prior to the initiation of enforcement proceedings resulting in indigent creditor being unable to obtain enforcement in his favour: violation Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Constitutional complaint not an appropriate remedy for an applicant financially barred from initiating enforcement proceedings: preliminary objection dismissed Facts : The applicant brought a civil action against a private person. A binding judgment allowed his claim and ordered the debtor to pay him arrears. Since the debtor refused to abide by the judgment, the applicant requested the initiation of enforcement proceedings. However, pursuant to Article   26 of the Enforcement Proceedings Act, he was to bear “preliminary expenses associated with enforcement measures”. The applicant explained that due to his indigence he could not bear the expenses in advance, but was told that the non-payment of the preliminary expenses constituted “an impediment to the enforcement of the judgment”. As a result of the non-payment of the preliminary expenses, the judgment remained unenforced. Law : A constitutional complaint cannot be regarded with a sufficient degree of certainty as an appropriate remedy: preliminary objection (non-exhaustion) dismissed . The obligation to pay expenses in order to have a final judgment enforced constitutes a restriction of a purely financial nature and therefore calls for particularly rigorous scrutiny from the point of view of the interests of justice. It does not flow from the Enforcement Act that the preliminary expenses borne by the creditor are to be fully reimbursed after the enforcement, nor did the Government specify the aim of obliging the applicant to pay for the enforcement. Further, the Enforcement Act obliges the creditor to pay a fee of 7% of the judgment debt retrieved. By shifting onto the applicant the responsibility   for   financially securing the organisation of the enforcement proceedings, the State tried to escape its positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice. The authorities' stance of holding the applicant responsible for the initiation of enforcement proceedings by requesting him to bear the preliminary expenses, coupled with the disregard for his financial situation, constituted an excessive burden. Conclusion : violation (unanimously). Article   41 – Georgia should secure, by appropriate means, the enforcement of the judgment concerned.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes