The right to a fair procedure was violated by the fact that the option to seize movables was available despite the lack of a legal basis in an otherwise suspended procedure, which situation arose due to the malpractice of the case officer bailiff, as was established by Dr Ákos Kozma in his report. The Commissioner for Fundamental Rights requested the bailiff concerned to pay special attention to observing the statutory provisions regarding the suspension of procedures in the future, with special regard to those cases in which he acts as a case officer.

A private individual filed a complaint with the Commissioner for Fundamental Rights in relation to a foreclosure procedure that had been launched against him. In his submission, he complained that in the foreclosure procedure, on-site procedural action had been taken despite the fact that he had previously entered into an instalment agreement with the party seeking enforcement, which arrangement should have resulted in the suspension of foreclosure.

In his report on Case No. AJB-395/2020, Dr Ákos Kozma exposed that in this specific case, there were two bailiffs who acted on the basis of the Foreclosure Act. One of them was the so-called case officer bailiff, who had full foreclosure action rights, while the other one, the so-called requested bailiff, was entitled to perform on-site procedural action (more precisely, the seizure). This was necessary because the official seat of the case officer bailiff was in Budapest, while the real estate property affected by the seizure was in Vas County. As a general rule, the Foreclosure Act prescribes that in such cases, the on-site foreclosure action should be implemented by the bailiff with an official seat in the county in question.

In the report, the Commissioner for Fundamental Rights established malpractice from the part of the case officer bailiff, with regard to the limitation of the on-site procedural action. The Ombudsman emphasised that, pursuant to the Act on Foreclosure, a foreclosure procedure is suspended if the debtor has been allowed to pay in instalments, and no foreclosure action can be implemented during the period of suspension. Dr Ákos Kozma pointed out that the case officer bailiff had failed to notify the requested bailiff on the suspension of the procedure, although, in the view of the Commissioner for Fundamental Rights, it is also true that the on-site procedural action rights of the requested bailiff would have extended only to the delivery of documents rather than to the seizure of movables.

The Ombudsman concluded that due to the negligence of the case officer bailiff, the option to seize the movables in a procedure otherwise suspended existed despite the lack of a legal basis, which caused a violation of the right to a fair procedure.

In order to prevent the future occurrence of an impropriety with regard to a fundamental right examined in this report, the Commissioner for Fundamental Rights requested the case officer bailiff to pay special attention to observing the statutory provisions on suspension, with special regard to those cases in which he acts as a case officer.

 

For the report, please click on the following link AJB-395/2020.