Enforcement fees: clear, transparent and reasonable

PART I INTERNATIONAL STANDARDS AND PRINCIPLES

1. GENERAL INTERNATIONAL STANDARDS AND PRINCIPLES

1.1. The European Court on Human Rights

1.1.1. Article 6 ECHR

Article 6 ECHR guarantees the right to a fair and public hearing in the determination of an individual's civil rights and obligations or of any criminal charge against him:

Article 6 paragraph 1 ECHR: Right to a fair trial:

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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The title of the article ("fair trial") might give the impression that the provision only refers to proceedings. From case law however, it is obvious that the "fair trial" principle also applies to the enforcement phase. The article needs to be interpreted in such a way that the fair trial guarantee not only refers to proceedings, but also applies to the enforcement phase. The landmark case in that respect was Hornsby v Greece.1 In this case the ECtHR held by seven votes to two that there had been a violation of Article 6 paragraph 1 of the ECHR on account of the Greek administrative authorities' failure to comply within a reasonable time with two judgments of the Supreme Administrative Court. By refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision the Greek authorities had deprived the provisions of Article 6 § 1 of the Convention of all useful effect:

"[.] Article 6 § 1 secured to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodied the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constituted one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. [.] 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 therefore had to be regarded as an integral part of the "trial" for the purposes of Article 6; [.]."

Based on this judgment, the enforcement of a court judgment is an integral part of the fundamental human right to a fair trial within a reasonable time, in accordance with Article 6 of the ECHR. However, the ECtHR stressed that the rule of law principle can only be a reality if citizens can, in practice, assert their legal rights and challenge unlawful acts, no matter the existence of prior court proceedings. A good example is the case Estima Jorge v. Portugal2. In this judgment ECtHR decided that, based on article 6 paragraph 1 of the ECHR, enforcement has an independent value, irrespective of the nature of the enforcement writ, and even irrespective of the prior existence of court proceedings. In the Estima Jorge case there was neither a dispute, nor prior court proceedings; the case dealt with the enforcement of a notarial deed received as a security for mortgage. The ECtHR considered that "conformity with the spirit of the Convention required that the word "contestation" (dispute) should not be construed too technically" - that it should be given "a substantive rather than a formal meaning". Therefore, even in the absence of preceding trial, the Court found violation of the reasonable time provision under Article 6 paragraph 1 of the ECHR.

During the years the scope of enforcement under article 6 ECHR, was further extended by the ECtHR, among others with regard to inactive behavior of enforcement authorities and lengthy enforcement procedures.3

The case law also referred to enforcement fees, as we will see in the next paragraph (1.1.2). It is beyond the scope of this Juris Union to give a detailed overview of the caselaw of the ECtHR in other areas. Here I only want to mention one aspect: the role of the State in enforcement proceedings.

The State has various roles in enforcement proceedings. A first, negative, role is the State as a debtor. In the case Burdov v. Russia4 the ECtHR concluded that lack of funds is not an excuse for not honouring a judgment debt:

"It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 [...] In the instant case, the applicant should not have been prevented from benefiting from the success of the litigation, which concerned compensation for damage to his health caused by obligatory participation in an emergency operation, on the ground of alleged financial difficulties experienced by the State."

So it is obvious that the State does not have an exceptional position when it comes to enforcement. Yet several states in their legislation still maintain such exceptional position, also when it comes to for example the payment of enforcement fees.

State is also liable for the organization and well-functioning of the enforcement system and the actions or inefficiency of its enforcement agents. An excessive case-load or a reform of the justice system are no excuses for inefficiency. A good example is the case Karitonashvili v Georgia.5

In this case, the applicants requested the district court to quash a final judgement from 29 November 1999. In this case the eviction proceedings were delayed, first due to a reorganization of the judicial system, than the file was misplaced in the archives and after that several hearings were planned that were adjourned. Proceedings were still pending (already for 8 years and 11 months) at the moment the ECtHR decided on the matter:

"The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute [.]

It is regrettable that the eviction proceedings have already been pending for more than eight years and eleven months, yet the first-instance court still faces the original procedural challenge - the need to conduct a technical assessment of the disputed house [.]. As to the Government's reference to an excessive case-load and the reorganisation of the judicial system, the Court reiterates, first, that a chronic backlog of cases is not a valid explanation for excessive delays, and, secondly, it remains the responsibility of the Contracting State to organize its courts in such a way as to guarantee everyone's right to the determination of their civil rights and obligations "within a reasonable time" [.].

1.1.2. The ECtHR and enforcement costs

In its caselaw, ECtHR also questioned the fairness of enforcement costs, especially when it comes to preliminary expenses. According to the ECtHR the access to enforcement proceedings cannot be limited depending on the payment of a preliminary enforcement fee.6 For example in the case Apostol v. Georgia the ECtHR concluded:

"In so far as enforcement proceedings constitute an integral part of the trial [.] the Court considers that the right to a court, along with access to first-instance and appeal courts for the determination of "civil rights and obligations" likewise protects the right of access to enforcement proceedings. [.]

It must be emphasised in this regard that the right of access to a court is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. However, the Court must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. [.]

"The right to a court is not merely a theoretical right to secure recognition of an entitlement by means of a final decision but also includes the legitimate expectation that the decision will be executed. [...] the imposition of the obligation to pay expenses in order to have that 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...