Establishing the Boundary between Effective Enforcement and the Protection of Debtor’s Rights: Analysis of the Case-Law of the European Court of Human Rights

The author presents and analyses the relationship between creditor’s and debtor’s rights in the enforcement procedure with an emphasis on the role of the state. On the creditor’s side, both a violation of the right to enforcement as one of the elements of the right to trial and also a violation of the right to pea- ceful enjoyment of property may occur. On the debtor’s side, both a violation of the right to peaceful enjoyment of property, and in reference to interference with home, a violation of the right to respect for private and family life may occur. The enforcement procedure must in theory be oriented in favour of the creditor and his right to enforcement, whereas the debtor’s protection is pro- vided by law, both substantially (restrictions and exemptions of enforcement) and procedurally (possibilities of filing objections and other legal remedies). The author determines the boundary between the efficiency of the enforce- ment and the protection of the debtor’s rights after the consultation of the Eu- ropean Court of Human rights (ECtHR) case-law. The state plays a key role, as it must ensure an effective enforcement system while providing debtors with adequate protection. The ECtHR sets the creditor’s repayment as the goal of enforcement and the debtor’s rights as restrictions on enforcement. Moreover, the ECtHR imposes a regulation of these relations on the state due to its coer- cive monopoly, leaving it with a wide margin of discretion.

Keywords: enforcement proceedings, right to trial, right to enforcement, right to peaceful enjoyment of property, right to respect for private life and family life, proportionality.