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THIRD
SECTION
CASE OF MIHAL v. SLOVAKIA
(Application
no. 22006/07)
JUDGMENT
STRASBOURG
5
July 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mihal v.
Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena
Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22006/07) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Slovak national, Mr Karol
Mihal (“the applicant”), on 10 May 2007.
- The
applicant was represented by Ms I. Rajtáková, a lawyer
practising in Košice. The Government of the Slovak Republic
(“the Government”) were represented by their Agent, Ms M.
Pirošíková.
- The
applicant alleged, in particular, that he had been denied access to
a court with a view to challenging decisions by court officers
in respect of the costs of enforcement proceedings that he had
carried out as a judicial enforcement officer.
- On
23 June 2010 the Court decided to give notice of the application to
the Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Malá Ida. He is a
judicial enforcement officer (súdny exekútor).
- In
his official capacity, the applicant acted on behalf of a number of
judgment creditors with a view to enforcing their claims. The
relevant details concerning the enforcement proceedings are set out
in the Appendix to this judgment.
- The
commencement of the enforcement proceedings was authorised by
judicial decisions.
- The
applicant or, as the case may be, the creditors themselves
subsequently requested that the enforcement be discontinued as it had
been established that the debtors were devoid of any assets that
could serve to satisfy the enforced claims.
- Together
with those requests, the applicant submitted a breakdown of the costs
he had incurred in the enforcement proceedings which he sought
to have the creditors ordered to compensate.
- Consequently,
in joint decisions, the enforcement proceedings were discontinued and
orders for payment of the applicant’s costs were issued.
- The
decisions were taken on the authority of the district courts, as the
courts at the first level of jurisdiction, acting through their
senior court officers (vyšší súdny
úradník). Under section 2 of the Court Officers Act
(Law no. 549/2003 Coll., as amended), senior court officers are civil
servants (štátny zamestnanec) and, as such, are
considered to be employees of the court.
- The
written versions of the decisions stated that they were final and not
subject to appeal.
- The
applicant nevertheless appealed (odvolanie), seeking
compensation for his costs in a higher amount.
As to
the admissibility of his appeals, the applicant relied on
Article 142 § 2 of the Constitution (Constitutional
Law no. 460/1992 Coll., as amended), which provides for the right of
appeal to a judge against decisions taken by employees of the court.
- The
applicant’s appeals, subsequent appeals on points of law
(dovolanie) as well as complaints (sťaZnosť)
under Article 127 of the Constitution were all declared inadmissible.
- The
applicant’s constitutional complaints in respect of the
enforcement proceedings in file nos. 19Er 90/04 and Er 533/00 were
declared inadmissible on the ground that the applicant had failed to
exhaust ordinary remedies by asserting his rights by way of an appeal
on points of law (dovolanie).
- The
remaining constitutional complaints were declared manifestly
ill founded, although in respect of the enforcement proceedings
in file nos. Er 641/2004 and Er 2541/2001 no appeal on points of law
had been lodged.
- The
ordinary courts and the Constitutional Court (in decisions nos. III.
ÚS 344/06, II. ÚS
27/07, II. ÚS 28/07 and III. ÚS
66/07) held that, pursuant to Article 202 § 2 of the Code of
Civil Proceedings (Law no. 99/1963 Coll., as amended) (“the
CCP”), decisions (uznesenie) in enforcement proceedings,
which included decisions on the costs of enforcement, were not
subject to appeal. This rule was in the position of lex specialis
in relation to Article 142 § 2 of the Constitution and was held
to take precedence over the latter. The fact that the impugned
decisions had been taken by employees of the court and not by judges
was therefore found to be of no consequence.
- In
a number of unrelated but similar situations, raised before the
Constitutional Court by the applicant, the Constitutional Court took
contradictory views (see “Relevant domestic law and practice”
below).
- Meanwhile,
the relevant provisions of the CCP were amended, in that they now
specifically provide that an appeal to a judge against decisions
taken by senior court officers is always available (see “Relevant
domestic law and practice” below).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
- Article
127, as amended by Constitutional Law no. 90/2001 Coll. with effect
from 1 January 2002, provides:
“1. The Constitutional Court shall
decide complaints by natural or legal persons alleging a violation of
their fundamental rights or freedoms ... unless the protection of
such rights and freedoms falls within the jurisdiction of a different
court.
2. If the Constitutional Court finds a
complaint justified, it shall deliver a decision stating that a
person’s rights or freedoms as set out in paragraph 1 have been
violated by a final decision, specific measure or other act and shall
quash such decision, measure or act. If the violation that has been
found is the result of a failure to act, the Constitutional Court may
order [the authority] which has violated the rights or freedoms to
take the necessary action. At the same time it may remit the case to
the authority concerned for further proceedings, order such authority
to refrain from violating the fundamental rights and freedoms ... or,
where appropriate, order those who have violated the rights or
freedoms set out in paragraph 1 to restore the situation to that
existing prior to the violation.
3. In its decision on a complaint the
Constitutional Court may grant appropriate financial compensation to
the person whose rights under paragraph 1 have been violated.”
- Article
142 § 2 was also amended by Constitutional Law no. 90/2001
Coll., the relevant part of which entered into effect on 1 July
2001.
- Under
the amended Article 142 § 2, an act of Parliament may specify
matters, within the jurisdiction of courts, which may be decided upon
by employees of the court authorised to do so by a judge. Decisions
taken by employees of the court, upon authorisation of a judge, are
subject to a remedy which must always be determined by a judge.
B. Code of Civil Procedure
- Article
202 defines which judgments and decisions are not subject to appeal.
- Under
Article 202 § 2, unless the
Enforcement Code (Law no. 233/1995 Coll., as amended)
provides otherwise, an appeal is not admissible against decisions
taken in enforcement proceedings under the Enforcement Code.
- With
effect from 1 July 2007, the relevant provisions of the CCP were
amended by Law no. 273/2007 Coll. Since then the amended rule
(section 374 (4)) has specifically provided that an appeal to a judge
against decisions taken by senior court officers is always available.
- The
explanatory memorandum (dôvodová správa)
of the amending Law no. 273/2007 Coll. refers to Article 142 § 2
of the Constitution and acknowledges that, under that provision, an
appeal had been available against such decisions even previously.
- Under
Article 228 § 1 (d), civil proceedings can be reopened
where the Court has found a violation of the requesting party’s
Convention rights and where serious consequences of the violation
have not been adequately redressed by the award of just satisfaction.
However, in principle, only those proceedings can be reopened which
have been concluded by means of a judgment (rozsudok).
C. Constitutional Court Act
- The
Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs
the organisation of the Constitutional Court, the procedure before it
and the status of its judges.
- Section
53(1) and (2) lays down the rule of exhaustion of ordinary remedies.
It provides that a complaint to the Constitutional Court is
admissible only where the applicant has used effective remedies
provided for by the law to protect his or her fundamental rights. The
requirement does not apply if the applicant shows that he or she has
not exhausted such remedies on grounds worthy of special
consideration.
D. Practice of the Constitutional Court
- In
cases nos. I. ÚS 191/06, III. ÚS
348/06, IV. ÚS 209/07 and IV. ÚS 200/07, the
applicant raised before the Constitutional Court the same issue as in
the present application.
- The
complaint in file no. I. ÚS 191/06 was directed against a
District Court, a senior court officer of which had determined the
applicant’s costs. The complaint was declared admissible on 14
June 2006 and ended with a judgment (nález) of 18
October 2007, in which the Constitutional Court found no violation of
the applicant’s rights under Article 6 § 1 of the
Convention. The finding was based on the fact that the applicant’s
submissions had eventually been examined by a judge upon the
applicant’s appeal.
- The
complaints in file nos. III. ÚS
348/06, IV. ÚS 209/07 and IV. ÚS 200/07 were
directed against the Supreme Court which had declared the applicant’s
appeals on points of law inadmissible. They resulted in judgments of
17 January 2008 and 6 and 26 March 2008, in which the
Constitutional Court found a violation of the applicant’s
rights under Article 6 § 1 of the Convention, quashed the
impugned decisions, remitted the cases to the ordinary courts for a
new determination and expressed a binding legal view that is
summarised in the subsequent paragraph.
- In
the judgments mentioned above in cases nos. I. ÚS 191/06,
III. ÚS 348/06, IV. ÚS 209/07 and IV. ÚS
200/07 the Constitutional Court upheld its established case-law to
the effect that, to the extent possible, legislation is always to be
interpreted and applied in conformity with the Constitution. Senior
court officers do not provide the guarantees of judicial independence
under Article 6 § 1 of the Convention. Their decisions can
therefore never be final and must always be reviewable by a judge.
Interpreting the relevant legislative rules at variance with the
wording, object and purpose of Article 142 § 2 of the
Constitution is out of the question.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied the right to appeal
against the decisions taken by the senior court officers. He relied
on Articles 6 § 1 and 13 of the Convention.
- The
Court considers that the case falls to be examined under Article 6
§ 1 of the Convention, which in the circumstances of the present
case is a lex specialis in relation to Article 13 of the
Convention, and the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
A. Admissibility
- While
admitting that the case was not manifestly ill-founded, the
Government raised an objection under Article 35 §
1 of the Convention of non-exhaustion of domestic remedies in respect
of enforcement proceedings file nos. Er 533/00 and 19 Er 90/04.
To
that end, the Government pointed out that in the decisions of
24 May 2007 the Constitutional Court declared two of the
applicant’s constitutional complaints inadmissible on the
ground that he had failed to exhaust ordinary remedies in that he had
failed to assert his rights by way of an appeal on points of
law.
The
Government argued that, in respect of enforcement proceedings file
nos. Er 533/00 and 19 Er 90/04, the applicant could and should have
lodged an appeal on points of law prior to resorting to the
Constitutional Court as he had done prior to his other constitutional
complaints in file nos. III. ÚS 348/06, IV. ÚS
209/07 and IV. ÚS 200/07. They emphasised that, in those three
cases, the Constitutional Court had granted the applicant a remedy
that had brought about a solution to his situation (see paragraphs 29
and 31 above).
- In
reply, the applicant challenged the Government’s non-exhaustion
objection arguing, firstly, that in another earlier case the
Constitutional Court had declared a complaint directed against a
District Court admissible (see paragraph 30 above) and, secondly,
that the other Constitutional Court judgments referred to by the
Government post-dated the decisions of the Constitutional Court
contested in the present case and that they therefore should not be
taken into account.
- The
Court observes that the individual cases obtaining in the present
application revealed a systemic problem at the time and that the
applicant was tackling that problem in a number of proceedings before
the ordinary courts as well as the Constitutional Court.
- In
so far as the remedy under Article 127 of the Constitution is
concerned, the Court observes that it is subject to a rule of
exhaustion of ordinary remedies under section 53 of the
Constitutional Court Act (see paragraph 28 above).
- In
that respect, the Court also observes that, at the relevant time,
there appeared to have been a significant degree of incoherence and
uncertainty as to the ordinary remedies that had to be exhausted
before a complaint under Article 127 of the Constitution could
be lodged.
- In
particular, the Court notes that in case no. I. ÚS 191/06
a complaint under Article 127 of the Constitution against a
District Court was declared admissible by the Constitutional Court on
14 June 2006 and subsequently examined on the merits. Similarly, in
the inadmissibility decisions of 11 and 31 May 2007 that are being
contested in the present case the Constitutional Court examined the
applicant’s complaints on the merits while in none of these
cases had an appeal on points of law been lodged.
- Furthermore,
the Court observes that in those cases contested in the present
application where the applicant resorted to the remedy advanced by
the Government, in its decisions of 10 November 2006 and 11 May 2007
the Constitutional Court found the applicant’s complaints
manifestly ill founded.
- Lastly,
the Court observes that the Constitutional Court’s decisions
underlying the Government’s non-exhaustion plea were given on
24 May and 18 June 2007, respectively, whereas the
Constitutional Court’s judgments upholding the effectiveness of
the remedy in question were only given on 17 January 2008 and 6 and
26 March 2008.
- In
sum, the Court concludes that in view of the inconsistency of the
Constitutional Court’s case-law concerning exhaustion of
ordinary remedies in a situation such as that of the applicant at the
relevant time and the overall unpredictability of the outcome of the
constitutional remedy (see Beian v.
Romania (no. 1),
no. 30658/05, §§ 36-40, ECHR 2007 XIII
(extracts)), the Government’s objection of non-exhaustion of
domestic remedies has to be dismissed.
- The
Court further notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- As
to the substance, the Government acknowledged that there had been
divergent case-law of the Constitutional Court on the point. It was
due to it that the applicant had been unable to secure redress from
the Constitutional Court and it was the reason why the relevant
legislation had been changed.
- The
applicant reiterated his complaint.
- The
Court reiterates that the right to a fair hearing, as guaranteed by
Article 6 § 1 of the Convention, embodies the “right to a
court”, one aspect of which is the right of access, that is,
the right to institute proceedings before courts in civil matters
(see Golder v. the United Kingdom, 21 February 1975, §
36, Series A no. 18; Prince Hans-Adam II of Liechtenstein v.
Germany [GC], no. 42527/98, § 43, ECHR 2001-VIII; and Roche
v. the United Kingdom [GC], no. 32555/96, § 116, ECHR
2005-X).
Thus
everyone has the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal (see, among many
others, Waite and Kennedy v. Germany [GC], no. 26083/94, §
50, ECHR 1999-I).
- However,
the right of access to court is not absolute and 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. In this
respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court (see Waite
and Kennedy, cited above, § 59). It 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 (see Stubbings and Others v. the
United Kingdom, 22 October 1996, § 50, Reports of
Judgments and Decisions 1996 IV).
Furthermore,
a limitation will not be compatible with Article 6 § 1 if it
does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see, among many others,
Ashingdane v. the United Kingdom, 28 May 1985, § 57,
Series A no. 93 and Prince Hans-Adam II of Liechtenstein,
cited above, § 44).
- In
the present case the applicant, being a judicial enforcement officer,
raised claims for compensation of the costs he had incurred in
connection with carrying out enforcement proceedings. The Court
observes that these claims were pecuniary in nature and accepts that
they amounted to “civil rights” in terms of Article 6 §
1 of the Convention.
- The
Court further observes that the applicant’s claims were
determined by senior court officers and accepts the Constitutional
Court’s conclusion that such officers did not provide the
guarantees of judicial independence under Article 6 § 1 of the
Convention (see paragraph 32 above).
- Moreover,
the Court observes that Article 142 § 2 of the Constitution
guarantees, in all situations, a right of appeal to a judge against
any decision taken by a senior court officer (see paragraph 21 above)
and that, according to the explanatory memorandum to Law no. 273/2007
Coll., amending the relevant provisions of the CCP, irrespective of
any statutory provisions, such right had been available against
decisions taken by senior court officers even previously (see
paragraph 25 above).
- Finally,
the Court observes that the existence of the right of appeal to a
judge against any decision by a senior court officer was also
confirmed by the Constitutional Court (see paragraph 32 above). This
position may also be considered to have been confirmed by the
lawmaker by way of providing for such an appeal in express terms in
the amending Law no. 273/2007 Coll.
- Against
this background, the Court observes with concern the domestic courts’
pronouncements, made by the ordinary courts and the Constitutional
Court in the present case, to the effect that the provisions of
a statute excluding a right of appeal against decisions taken by
senior court officers in enforcement proceedings took precedence over
a constitutional norm to the contrary (see paragraph 17 above).
- In
any event, in the instant case, the applicant’s right to appeal
to a judge against decisions taken by senior court officers was
denied, without reference to any specific aim or considerations of
proportionality.
- The
foregoing considerations, including the admissions by the Government
(see paragraphs 35 and 46 above), are sufficient to enable the Court
to conclude that, in the present case, the applicant’s
right of access to court has been denied without an acceptable
justification.
There
has accordingly been a violation of Article 6 §
1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 233.93 euros (EUR) in respect of pecuniary damage.
He submitted that this amount represented the difference between the
costs that had been awarded to him and those that he had been
seeking. He also claimed EUR 13,000 in respect of non-pecuniary
damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
(see paragraph 56 above) and the pecuniary damage alleged. In
particular, it cannot speculate about the outcome of the proceedings
had they been in conformity with Article 6 § 1. It therefore
rejects this claim.
- On
the other hand, the Court accepts that the applicant sustained
non-pecuniary damage. Ruling on an equitable basis, it awards the
applicant EUR 4,000 under that head, plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 2,618 for the legal costs incurred before
the Constitutional Court and before the Court.
- The
Government submitted that only costs and expenses which have been
actually and necessarily incurred and are reasonable as to quantum
should be reimbursed. They pointed out that the applicant’s
claim was not supported by any evidence.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see, for example, Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000 XI).
In
the present case, the applicant has failed to provide any supporting
documents substantiating his claim under this head. The Court
accordingly rejects the applicant’s claim for costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy
Registrar President
Appendix
Application
no. 22006/07
|
Complaint introduced
|
Enforcement authorised
|
Enforcement discontinued
|
Constitutional Court decided
|
|
10 May 2007
|
25 October 2002
Košice II
District Court
File no. 38 Er 1944/02
|
3 March 2005
|
3 November 2006
served 10 November
2006
File no. III. ÚS
344/06
|
|
8 November 2007
|
26 May 2004
Zilina District
Court
File no. 18 Er 641/2004
|
15 February 2005
|
29 March 2007
served 11 May 2007
File no. II. ÚS
27/07
|
|
8 November 2007
|
13 March 1996
Košice II
District Court
File no. Er 102/96-35
|
21 January 2005
|
29 March 2007
served 11 May 2007
File no. II. ÚS
28/07
|
|
27 November 2007
|
13 November 2001
Bratislava I
District Court
File no. Er 2541/2001
|
25 April 2005
|
3 April 2007
served 31 May 2007
File no. III. ÚS
66/07
|
|
18 December 2007
|
3 May 2004
Poprad District
Court
File no. 19 Er 90/04
|
17 March 2005
|
24 May 2007
served 18 June 2007
File no. I.
ÚS
61/07
|
|
23 January 2008
|
6 March 2000
Košice I
District Court
File no. Er 533/00
|
19 April 2004
|
24 May 2007
served 23 July 2007
File no. I. ÚS
71/07
|
