European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Karol MIHAL v Slovakia - 31303/08 [2011] ECHR 1163 (28 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1163.html
Cite as: [2011] ECHR 1163
[New search] [Contents list] [Printable RTF version] [Help]
THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
31303/08
by Karol MIHAL
against Slovakia
The European Court of Human Rights (Third Section), sitting on 28 June 2011 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 17 June 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Karol Mihal, is a Slovak national who was born in 1954 and lives in Malá Ida. He was represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is a judicial enforcement officer (súdny exekútor). In this capacity, he acted on behalf of a number of creditors, with a view to enforcing their claims. The relevant details concerning the enforcement proceedings in question are set out in the Appendix to this decision.
4. In all instances the commencement of the enforcement proceedings was authorised by judicial decisions and the enforcement proceedings were eventually discontinued on the grounds specified below.
5. At the same time, for various reasons that are also specified below, the courts ruled that the applicant was wholly or partly not entitled to remuneration (odmena), refund of costs (náhrada hotových výdavkov) and compensation for lost time (náhrada za stratu času).
1. Enforcement costs where defendant wound up or died
6. In the enforcement proceedings referred to under numbers 1 to 9 in the Appendix, the applicant acted on behalf of two individuals, the Social Security Administration (Sociálna poisťovňa) and other corporate creditors for the enforcement of their claims against corporate debtors and two individuals.
7. All of these enforcement proceedings were discontinued on the ground that, without legal successors, the corporate debtors had been struck out of the Commercial Register (Obchodný register), whereby they legally ceased to exist, and the individual debtors had died.
8. In the context of these enforcement proceedings, the applicant requested that, in the circumstances, his compensation be paid by the creditors.
In particular, the applicant claimed remuneration in amounts ranging from some 24 to 1,060 euros (EUR), plus VAT, and a refund of his costs ranging from some EUR 3 to 55, in the total net amount of some EUR 700.
9. When dealing with the applicant’s claims, the courts applied Article 203 of the Judicial Enforcement Code (Law no. 233/1995 Coll., as in force until 31 January 2002) (see paragraph 38 in “Relevant domestic law and practice” below), pursuant to which it was at the courts’ discretion to order a creditor to pay the enforcement costs in the event of a discontinuation of the enforcement proceedings, taking into account whether the creditor could have envisaged the discontinuation of the proceedings.
10. In all of the proceedings in issue the courts dismissed the applicant’s claims, finding that the creditors could not have envisaged the discontinuation of the proceedings. Furthermore, it was noted by the Constitutional Court in some of those proceedings that the applicant’s status as a judicial enforcement officer placed him in a privileged position as regards the power to enforce adjudicated claims and that this privilege outweighed expenses such as those he had incurred in the present case(s).
2. Enforcement costs where claimant and defendant wound up
11. In the enforcement proceedings referred to under numbers 10 to 13 in the Appendix, the applicant acted on behalf of corporate creditors enforcing their claims against corporate debtors.
12. All of these enforcement proceedings were discontinued on the ground that both the creditors and the debtors had been struck out of the Commercial Register without a legal successor.
13. In the context of these enforcement proceedings, the applicant requested that his compensation be paid by the State.
In particular, the applicant claimed remuneration in amounts ranging from some EUR 40 to 230, plus VAT, and a refund of his costs ranging from some EUR 3 to 90.
In the proceedings referred to under number 10 in the Appendix, the applicant also claimed some EUR 25 by way of compensation for the time spent travelling in connection with the enforcement.
In total, the applicant made some EUR 475 worth of net claim.
14. The courts dismissed the applicant’s claims, finding that, as the parties no longer existed, they could not be ordered to pay the applicant’s costs. At the same time, there was no legislative basis for the applicant’s costs to be born by the State.
3. Method for calculating remuneration
15. In the enforcement proceedings referred to under numbers 14 and 15 in the Appendix, the applicant acted on behalf of corporate creditors, enforcing their claims against a corporate debtor and an individual debtor.
16. These enforcement proceedings were discontinued on the ground that the corporate debtor had been struck out of the Commercial Register and the individual debtor had died, without legal successors.
17. In the circumstances, the applicant requested that his remuneration be paid by the creditors. As to its amount, the applicant applied a statutory hourly fee for each hour spent on the individual enforcement steps that he had taken, including the hours commenced but not completed.
18. The courts allowed the applicant’s claims as to the substance. However, as to the scope, the courts calculated the actual time spent on all the enforcement steps together, and applied the hourly rate to that total.
19. In the enforcement proceedings referred to under number 15 of the Appendix, the calculation method referred to in the precedent paragraph was applied by the Košice Regional Court on 31 January 2008 when, following an appeal by the creditor, it overturned the first instance decision of the Spišská Nová Ves District Court that had relied on the calculation method advocated by the applicant.
20. In the decision of 31 January 2008, the Regional Court relied, inter alia, on a previous judgment of the Supreme Court (Najvyšší súd)) dated 28 May 2007 (see paragraph 50 in “Relevant domestic law and practice” below).
21. The applicant challenged the decision of 31 January 2008 by way of a complaint under Article 127 of the Constitution arguing, among other things, that that decision was contrary to an even earlier decision of the Supreme Court of 28 April 2006 (see paragraph 49 in “Relevant domestic law and practice” below).
22. On 5 November 2008 the Constitutional Court declared the complaint inadmissible as manifestly ill-founded. It held that it was neither a court of appeal nor a court responsible for harmonising case-law of the ordinary courts, the latter task falling within the remit of the Supreme Court. The Constitutional Court also found that the interpretation of the relevant law by the Regional Court was one possible interpretation and that it was not vitiated by any unfairness, irregularity or constitutionally relevant arbitrariness.
4. Order for costs against a destitute defendant
23. In the enforcement proceedings referred to under number 16 of the Appendix, the applicant acted on behalf of an individual, enforcing his claim against a corporate debtor. The enforcement proceedings were discontinued on the ground that the debtor did not even have sufficient assets to cover the costs of the enforcement proceedings.
24. In the circumstances, the applicant claimed that his costs be covered by the creditor. In particular, the applicant claimed remuneration in the amount of some EUR 70, plus VAT, and a refund of his costs in the amount of some EUR 9.
25. Ordinary courts at two levels of jurisdiction examined the applicant’s claim under the law as applicable at that time (see paragraphs 9 above and 38 below) and concluded that the creditor could not have envisaged that the debtor would become destitute. There was therefore no basis for ordering him to cover the applicant’s costs and neither was there any legal basis for the applicant’s costs to be born by the State. Therefore, in the circumstances, the order for costs was made against the defendant.
B. Relevant domestic law and practice
1. Constitution
26. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) 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.”
27. According to the established case-law of the Constitutional Court, neither Article 127 nor any other provision of the Constitution provides a basis for individuals to challenge legislation for being incompatible with the Constitution or international instruments, including the Convention (see, for example, decision of 7 November 2007, file no. IV. ÚS 287/07).
2. Code of Civil Procedure
28. The statutory basis for enforcement of adjudicated claims is laid down in Articles 251 et seq. of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”).
29. Until 31 August 2005, if a judgment debtor failed to comply with his or her adjudicated obligation, the creditor had two essentially equipollent options of seeking enforcement, by a court under the CCP and by a judicial enforcement officer under the Judicial Enforcement Code.
30. With effect from 1 September 2005 Article 251 and other related provisions of the CCP were amended by Law no. 341/2005 Coll. in that, apart from some exceptions that are not relevant to the present case, enforcement of adjudicated claims is to take place under the Judicial Enforcement Code.
3. Judicial Enforcement Code
31. The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended).
32. Under Article 10 § 1, in order to be appointed a judicial enforcement officer, an individual has to have (a) unrestricted legal capacity to act, (b) obtained a law degree, (c) a faultless criminal record, (d) completed at least three years of enforcement training, (e) passed a professional exam.
33. Judicial enforcement officers are appointed by the Minister of Justice (“the Minister”) (Article 11 § 1) upon their own request and further to recommendation of the Slovak Chamber of Judicial Enforcement Officers (Slovenská komora exekútorov – “the Chamber”) (Article 11 § 2).
34. Under Article 13, upon appointment, a judicial enforcement officer makes the following solemn declaration in front of the Minister:
“I promise on my conscience and civic honour that I shall follow the Constitution of the Slovak Republic and other Acts of Parliament, as well as other generally binding statues and I shall apply them as a judicial enforcement officer according to my best knowledge and conscience, in carrying out enforcements I shall proceed independently, impartially and fairly and I shall respect confidentiality in respect of all facts that I learn in connection with carrying out activities under the Judicial Enforcement Code”.
35. Under Article 57 § 1 (g), the enforcement court is to discontinue enforcement proceedings if it has declared the enforcement improper (neprípustná) on other grounds for which it cannot be carried out.
36. In respect of enforcement carried out under the Code, the judicial enforcement officer is entitled to remuneration, a refund of costs and compensation for lost time. Should the judicial enforcement officer be liable to pay value-added tax, the compensation should be increased by the amount of that tax (Article 196).
37. The expenses listed in Article 196 are to be born by the debtor (Article 197 § 1). The judicial enforcement officer can, however, request the creditor to make an appropriate advance payment for remuneration and costs (Article 197 § 2). As a general rule, should the creditor fail to make the advance payment within the time-limit specified by the enforcement officer, on the latter’s request the enforcement court may discontinue the proceedings (Article 31 § 1).
38. Under Article 203, as in force until 31 January 2002, in the event of discontinuation of enforcement proceedings, the court could order that the costs of the enforcement be paid by the creditor. In resolving that matter, the court was to take into account which costs had been necessary for ensuring efficient enforcement as well as whether the creditor could have envisaged the ground for the discontinuation, if exercising due diligence.
39. On 1 February 2002 an amendment (Law no. 32/2002 Coll.) entered into force, pursuant to which, if the creditor causes the discontinuation of the enforcement proceedings, the court can order him or her to cover the necessary costs of the enforcement (amended Article 203 § 1).
40. The amended Article 203 § 1 implies a possibility, not a duty, for the court to make an order for costs against the creditor. Such an order presupposes an analysis of procedural responsibility (zavinenie) for the discontinuation. The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor’s responsibility should it be established (a decision by the Constitutional Court of 23 March 2005 in a case no. I. ÚS 48/05).
41. Should the enforcement be discontinued on the ground that the debtor does not have sufficient property to cover the costs of the enforcement, such costs are to be born by the creditor (amended Article 203 § 2).
42. In a decision of 5 November 2008, in an unrelated but similar case brought by the applicant under no. I. ÚS 377/08, the Constitutional Court held that the mere fact that both the creditor and the debtor had ceased legally to exist and that they could accordingly no longer be ordered to pay the enforcement costs could not have the consequence of the costs being born by the State. This was so because in none of its provisions did the Judicial Enforcement Code provide for a possibility or statutory modalities from which one could infer a transfer of the duty to pay the enforcement costs to the State.
43. Articles 219 et seq. govern the disciplinary liability of judicial enforcement officers.
This liability pertains to disciplinary offences (disciplinárne previnenie) and serious disciplinary offences (závaZné disciplinárne previnenie).
44. The former consists of culpable breach of duties in the course of carrying out a judicial enforcement officer’s activities, breach of the solemn declaration, acting in a way which compromises the dignity of the officer’s role and carrying on an activity that is incompatible with the role of a judicial enforcement officer despite a previous request not to do so (Article 220 § 1).
45. An action envisaged in Article 220 § 2 becomes a serious disciplinary offence if its harmfulness is increased on account of the nature of the breached duty, the manner in which it has been breached, the degree of culpability, repetition of the breach or other aggravating circumstances.
46. Pursuant to Article 221, disciplinary offences are punishable by reprimand (paragraph 1 (a)), written reprimand (paragraphs 1 (b) and 2 (a), a fine of up to EUR 3,310 (paragraphs 1 (c) and 2 (b)) and stripping of office (paragraph 2 (c)).
4. Compensation of judicial enforcement officers
47. Details concerning compensation of judicial enforcement officers are laid down in Decree of the Ministry of Justice no. 288/1995 Coll., as amended, on Remuneration and Compensation of Judicial Enforcement Officers.
48. In the event of discontinuation of enforcement proceedings, the remuneration of the judicial enforcement officer for carrying out the enforcement was to be determined on the basis of the number of hours purposefully spent on the enforcement. The basic rate was SKK 200 per each commenced hour (section 14(1)(a) and (2), as in force at the relevant time).
49. In a judgment of 28 April 2006, following an extraordinary appeal on points of law (mimoriadne dovolanie) by the Prosecutor General in an unrelated case, no. 2MCdo 16/2005, the Supreme Court held that the remuneration under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the enforcement steps taken and the time spent on such individual steps, including any hour commenced. The adding up of the exact time spent on individual enforcement steps, taken together, was contrary to the applicable rules.
A similar interpretation was adopted by the Košice Regional Court in decisions of 23 and 30 March 2007 on the applicant’s appeals in unrelated cases nos. 2CoE 113/2006 and 5CoE 74/2006.
50. In a judgment of 28 May 2007, following an extraordinary appeal on points of law by the Prosecutor General in an unrelated case, no. 1MCdo 7/2006, the Supreme Court held that the remuneration of a judicial enforcement officer under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the real time spent on the enforcement steps taken, added up. This interpretation was upheld by the Supreme Court in a decision of 4 March 2009 on an extraordinary appeal on points of law by the Prosecutor General in an unrelated case no. 5MCdo 6/2008.
COMPLAINTS
51. In respect of all the proceedings but those referred to under no. 15 in the Appendix, the applicant complained under Article 4 of the Convention that, in the absence of full compensation for his costs, the enforcement he had carried out amounted to forced or compulsory labour.
52. The applicant also complained that proceedings no. 15 in the Appendix had fallen short of the guarantees of fairness under Article 6 § 1 of the Convention in that the courts had arbitrarily, and in contradiction to the judicial practice known to him, used a method of calculating his costs that was disadvantageous to him.
53. In respect of all the proceedings but those referred to under no. 15 in the Appendix, the applicant also complained that the absence of full compensation in respect of the costs of the enforcement that he had carried out, which in the given circumstances stemmed from the provisions of statute, was contrary to his rights under Article 1 of Protocol No. 1.
54. The applicant lastly complained under Article 13 of the Convention that he had no effective remedy at his disposal in respect of the other complaints, in particular in so far as they directly concerned the effects of the relevant legislation on him.
THE LAW
A. Exhaustion of domestic remedies
55. The Government argued that, in respect of the enforcement proceedings referred to under nos. 6, 8, 9, 10, 12, 13 and 16 in the Appendix, the applicant had failed to comply with the requirement of Article 35 § 1 of the Convention to exhaust all domestic remedies in that he had failed to assert his rights before the Constitutional Court by way of a complaint under Article 127 of the Constitution.
56. In reply, the applicant disagreed and pointed out that the essence of the case went to the non-existence of a legal framework for fully compensating his costs, which had been acknowledged by the ordinary courts and also by the Constitutional Court. This lack of legislation could not be contested before the Constitutional Court.
57. The Court observes that, under Article 127 of the Constitution, the Constitutional Court has jurisdiction to deal with individual complaints alleging a violation of the complainants’ fundamental rights or freedoms by decisions, measures and other actions or by a failure to act, provided that the matter does not fall within the jurisdiction of a different court. This jurisdiction, however, does not comprise the power, upon an individual complaint, to review the compliance of statute with the Constitution and international instruments (see paragraphs 26 and 27 above).
58. The Court also observes that the thrust of the present case is the absence of a legislative framework for fully compensating the applicant’s costs, which was acknowledged at the domestic level (see paragraphs 9, 10, 14 and 25 above).
59. In so far as the Government’s objection has been substantiated, the Court has found no indication as to how the lack of a legal basis for compensating fully the applicant’s costs could be overlooked and how he could consequently receive redress by resorting to a complaint under Article 127 of the Constitution. The Government’s objection accordingly has to be dismissed.
B. Article 4 of the Convention
60. The applicant complained that he had been subjected to forced or compulsory labour, contrary to Article 4 of the Convention, the relevant part of which provides as follows:
“...
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.”
61. The Government relied on the Court’s judgment in the case of Van der Mussele v. Belgium (23 November 1983, Series A no. 70) and the decision of the Constitutional Court of 5 November 2008 in the unrelated case no. I. ÚS 377/08 (see paragraph 42 above). They emphasised that there was no legal basis for the State to bear the applicant’s costs and maintained that he had incurred those costs at his own risk. Any such risk was reduced by, and appropriate in view of, the applicant’s privileged position as a judicial enforcement officer and his right to claim an advance on his costs from the creditor under Article 197 § 2 of the Enforcement Code (see paragraph 37 above).
In conclusion, according to the Government, there had been no forced or compulsory labour and the complaint was incompatible ratione materiae with the provisions of the Convention.
62. In reply, the applicant disagreed and reiterated that, in his case, there had been forced and compulsory labour in the Convention sense. To that end, the applicant emphasised that he had not been entitled to reject or choose the creditors whose claims he had been enforcing. While accepting that he had voluntarily taken up the office of a judicial enforcement officer, he had done so in reliance on Article 196 of the Enforcement Code, which guaranteed him compensation (see paragraph 36 above).
63. The Court reiterates that paragraph 2 of Article 4, which prohibits “forced or compulsory labour”, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 (see Zarb Adami v. Malta, no. 17209/02, § 43, ECHR 2006-VIII).
64. When deciding whether the service required of the applicant falls within the prohibition of “forced or compulsory labour”, the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4. The Court reiterates that paragraph 3 of Article 4 forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” shall not include. This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, 38; Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291-B; and Zarb Adami, cited above, § 44). The final sub-paragraph, namely sub-paragraph (d), which excludes “any work or service which forms part of normal civil obligations” from the scope of forced or compulsory labour, is of special significance in the context of the present case (compare also Van der Mussele, cited above, § 38).
65. Turning to the specific circumstances of the present case, the Court observes that there has been no dispute between the parties about whether the applicant’s enforcement activities amounted to “labour” for the purposes of Article 4 § 2 of the Convention. The Court accepts that they did. It remains to be ascertained whether the labour was “forced” or “compulsory”.
66. The Court will first answer this question in respect of the enforcement proceedings referred to under no. 14 of the Appendix. It observes that what is in issue in those proceedings is the method of calculating the applicant’s remuneration. In other words, the applicant’s claim to remuneration has not been contested in its substance and neither has been the fact that the applicant actually obtained the compensation adjudicated at the domestic level. The Court finds that, in these circumstances, in view of its limited power to review questions of compliance with national law (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000-I)) and in the absence of any special considerations, the applicant’s “labour” in those proceedings cannot be considered as “forced” or “compulsory” within the meaning of Article 4 of the Convention.
67. In answering the question in respect of the remaining sets of enforcement proceedings, the Court will take into account whether any work was exacted from the applicant under the menace of any penalty, whether the work was performed against the will of the applicant and whether the applicant had offered himself for that work voluntarily (see Van der Mussele v. Belgium, cited above, § 34).
68. The Court observes that it is the applicant’s function, as a judicial enforcement officer, to carry out enforcement as authorised by a court (see paragraph 34 above). Should he fail to discharge this duty in a culpable manner, he may incur disciplinary liability (see paragraphs 44 and 45 above).
69. The Court is prepared to accept that the potential consequences of a refusal on the part of the applicant to carry out enforcement of the adjudicated claims in the present case could constitute a “menace of a penalty” (see Van der Mussele, cited above, § 35).
70. It must next be determined whether the applicant “offered himself voluntarily” for the work in question. For that matter, the Court observes that, upon completing other formal requirements, in order to become a judicial enforcement officer, the applicant had to pass a professional exam, following which he was appointed by the Minister at the recommendation of the Chamber (see paragraphs 32 and 33 above). This presupposes knowledge of the applicable rules and regulations, including those that were applied in the present case in respect of his costs. At the same time, the Court observes that such rules and regulations have been encompassed in generally binding and publically accessible statue, the Judicial Enforcement Code, and that they do not appear to have changed to the applicant’s detriment throughout the relevant period.
71. The Court further observes that, among the remaining enforcement proceedings subject to the present complaint, three categories can be distinguished.
72. First, there were the enforcement proceedings referred to under nos. 1 to 9 in the Appendix, which ended because the debtor had been struck out of the Commercial Register or died, without a legal successor, while under the applicable law a possible claim for costs against the creditor was dependant on the creditor’s being able to envisage the discontinuation of the proceedings. The Court observes that the domestic law applicable in this context stemmed directly from the Judicial Enforcement Code and that it has been consistently applied by the domestic courts.
73. Second, there were the enforcement proceedings referred to under nos. 10 to 13 in the Appendix, which ended because both the creditors and the debtors had been struck out of the Commercial Register or died, without legal successors, while there was no statutory framework for the enforcement costs to be born by anybody other than the applicant.
74. Third, in the enforcement proceedings referred to under number 16 of the Appendix, the applicant’s claim was allowed, albeit against the defendant, who had been found indigent.
75. The Court notes that there do not appear to be any written individual rules addressing the applicant’s specific situation in the second and third of the categories described above, which accordingly had to be addressed by means of judicial interpretation of the existing rules. It accepts that, from the applicant’s point of view, such interpretation of the general rules may have contained some degree of uncertainty as to its concrete outcome. The Court is, however, of the view that, as a legal professional, the applicant can be expected to have known and accepted the rules voluntarily. The applicable rules therefore have to be considered as having been accepted by the applicant.
76. Nevertheless, such prior acceptance does not in itself warrant a conclusion that the application of the existing legal framework did not, in the present case, amount to forced or compulsory labour for the purposes of Article 4 § 2 of the Convention. Account must necessarily also be taken of other facts (see Van der Mussele, cited above, § 36).
77. In that respect, the Court has to ascertain whether the carrying out of the enforcement in the proceedings referred to under numbers 1 to 13 and 16 of the Appendix without being paid his costs in full did not impose a burden on the applicant that was excessive and disproportionate to the advantages attached to his status as a judicial enforcement officer (see Van der Mussele, cited above, § 37).
78. As to the burden imposed on the applicant, the Court observes that, in the present case, in fourteen individual instances, the applicant was not compensated for his own expenses, remuneration and loss of time (see paragraphs 8 and 13 above).
Nevertheless, Court considers that, rather than the absolute or relative value of the applicant’s outstanding claims, the essence of the applicant’s burden rested upon the attendant professional risk of not being paid for his services.
79. As regards the advantages that the applicant enjoyed on account of his status as a judicial enforcement officer, the Court observes that as of 1 September 2005 enforcement of adjudicated claims in Slovakia essentially falls within the powers of judicial enforcement officers under the Judicial Enforcement Code. Until that date adjudicated claims could equally be enforced by a court under the CCP (see paragraphs 29 and 30 above).
This arrangement implies a privilege on the part of the applicant and other judicial enforcement officers of having the exclusive power to enforce adjudicated claims in any normal case in return of remuneration, a refund of costs and compensation for lost time (see paragraph 36 above).
80. The Court also observes that under the applicable statutory framework it was open to the applicant to request an advance on his costs from the creditors and to seek discontinuation of the enforcement proceedings if the advance payment has not been made (see paragraph 37 above).
81. In sum, to the extent the application has been substantiated, the burden imposed on the applicant has not been shown to be excessive, disproportionate or otherwise unacceptable.
It follows that the burden did not amount to compulsory or forced labour for the purposes of Article 4 § 2 of the Convention and that the relevant part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 6 § 1 of the Convention
82. The applicant complained that proceedings no. 15 in the Appendix had fallen short of the guarantees of fairness in that the courts had arbitrarily and incorrectly interpreted the relevant law. He relied on Article 6 § 1 of the Convention, which provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
83. The Government pointed out that, in its decision of 31 January 2008, the Košice Regional Court had relied on the recent case-law of the Supreme Court and that, in its decision of 5 November 2008, the Constitutional Court had found no indication of any unfairness, irregularity of arbitrariness in the Regional Court’s decision. The Government concluded that the complaint was manifestly ill-founded.
84. In reply, the applicant disagreed, reiterated his complaint and emphasised that the contested decision of 31 January 2008 was contrary to the decision-making practice of the Supreme Court and the Košice Regional Court that was known to him and that, as such, the impugned decision was incompatible with the principle of legal certainty.
85. The Court reiterates that it has only limited power to examine complaints about errors of fact or law allegedly committed by national courts (for a recapitulation of the relevant case-law see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
86. In the present case the applicant’s claim for costs was determined with final effect by the Košice Regional Court on 31 January 2008 and the applicant’s constitutional complaint against that decision was dismissed as manifestly ill-founded.
87. The Court notes, in particular, that in the decision of 31 January 2008 the Regional Court relied on the recent case-law of the Supreme Court (see paragraphs 20 and 50 above) and ruled that the applicant’s costs were to be calculated on the basis of the total time spent on all the enforcement steps taken together.
88. The Court also observes that the case-law relied on by the Supreme Court superseded earlier case-law relied on by the applicant time-wise (see paragraphs 21 and 49 above) and that it had been confirmed by subsequent developments (see paragraph 50 above).
89. In these circumstances, in so far as the complaint has been substantiated, the Court has found no indication of any procedural unfairness within the meaning of Article 6 § 1 of the Convention.
It follows that the relevant part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Article 1 of Protocol No. 1
90. In respect of all the proceedings except for proceedings no. 15 in the Appendix, the applicant also complained that the absence of any compensation in respect of the enforcement that he had carried out was incompatible with his rights under Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
91. The Government submitted that the applicant had not enjoyed any “possession” within the meaning of Article 1 of Protocol No. 1 attracting protection of that Article and that, consequently, the complaint was incompatible ratione materiae with the provisions of the Convention.
92. The applicant, in reply, maintained that in discharge of his official duties he had been using his own tools and means which he considered to be “possessions” in terms of Article 1 of Protocol No. 1. He argued that he had had a “legitimate expectation” to have the use of his possessions compensated under Article 196 of the Enforcement Code. However, he had been denied such compensation, without a legal basis, and without any public interest being served.
93. The Court reiterates that it had examined a similar situation in the Van der Mussele judgment (cited above, § 49), in which it held that:
“In many cases, a duty prescribed by law involves a certain outlay for the person bound to perform it. To regard the imposition of such a duty as constituting in itself an interference with possessions for the purposes of Article 1 of Protocol No. 1 (P1-1) would be giving the Article a far-reaching interpretation going beyond its object and purpose.
The Court sees no valid cause to think otherwise in the instant case.
The expenses in question were incurred by Mr. Van der Mussele in acting for his ... clients. Although in no wise derisory (the epithet bestowed on them by the Government), these expenses were relatively small and resulted from the obligation to perform work compatible with Article 4 (art. 4) of the Convention.
Article 1 of Protocol No. 1 (P1-1) [...] is thus not applicable in this connection.”
94. The Court has found no reasons for reaching a different conclusion in the present case.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
E. Article 13 of the Convention
95. Lastly, the applicant complained that he had no effective remedy at his disposal in respect of the other complaints, contrary to Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
96. The Government contended that the complaint was manifestly ill founded, firstly, because it lacked any “arguable claim” under the Convention and, secondly, because the applicant did have a remedy compatible with the Article 13 requirements, in particular a complaint under Article 127 of the Constitution.
97. In reply, the applicant disagreed and reiterated his complaint.
98. The Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
99. In the present case the Court has found above that the applicant’s remaining complaints were inadmissible as being manifestly ill-founded and incompatible ratione materiae with the provisions of the Convention (see paragraphs 81, 89 and 94 above). For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case.
The remainder of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
Appendix
Application no. 31303/08
|
No. |
Complaint introduced |
Enforcement authorised (date, court, file no.) |
Enforcement discontinued |
Last decision (date, body, file no.) |
|
1. |
17 June 2008 |
29 December 1999 Košice II District Court Er 4175/99 |
5 August 2005 |
23 October 2007 (served 27 December 2007) Constitutional Court I. ÚS 210/07 |
|
2. |
17 June 2008 |
11 March 1999 Košice II District Court Er 503/1999 |
16 November 2006 |
24 January 2008 (served 12 March 2008) Constitutional Court II. ÚS 32/08 |
|
3. |
17 June 2008 |
16 March 2000 Košice II District Court Er 999/00 |
6 November 2006 |
24 January 2008 (served 27 March 2008) Constitutional Court IV. ÚS 27/08 |
|
4. |
17 June 2008 |
21 March 2001 Košice II District Court Er 155/01 |
1 October 2001 |
31 August 2004 (served 22 April 2008) Košice Regional Court 10CoE 27/04 |
|
5. |
17 June 2008 |
19 June 1998 Košice II District Court Er 1495/98 |
15 November 2006 |
6 May 2008 Constitutional Court II. ÚS 202/08 |
|
6. |
17 June 2008 |
26 August 1996 Košice II District Court Er 752/96 |
9 May 2007 |
28 March 2008 Košice Regional Court 6CoE 101/2007 |
|
7. |
17 June 2008 |
20 May 1999 Košice II District Court Er 1153/1999 |
16 November 2006 |
13 December 2007 (served 28 February 2008) Constitutional Court III. ÚS 351/07 |
|
8. |
17 June 2008 |
12 March 2001 Košice II District Court Er 726/01 |
23 April 2007 |
28 January 2008 Košice Regional Court 3CoE 93/2007 |
|
9. |
17 June 2008 |
25 April 1997 Košice II District Court Er 1467/1997 |
18 April 2007 |
26 November 2007 (served 5 February 2008) Košice Regional Court 2CoE 80/2007 |
|
10. |
17 June 2008 |
22 October 1998 Dolný Kubín District Court 6Er 1823/1998 |
10 July 2007 |
31 October 2007 (served 8 February 2008) Zilina Regional Court 6CoE 61/2007 |
|
11. |
17 June 2008 |
23 January 1997 Košice I District Court OEr 101/97 |
17 May 2006 |
24 January 2008 (served 12 March 2008) Constitutional Court II. ÚS 33/08 |
|
12. |
17 June 2008 |
23 January 1997 Košice I District Court OEr 92/97 |
17 May 2006 |
31 March 2008 Košice Regional Court 3CoE 179/2007 |
|
13. |
17 June 2008 |
31 May 1999 Košice II District Court Er 1279/1999 |
18 October 2006 |
28 March 2008 Košice Regional Court 4CoE 23/2007 |
|
14. |
17 June 2008 |
11 April 2002 Košice-okolie District Court OEr 653/2002 |
25 January 2007 |
31 January 2008 (served 13 March 2008) Constitutional Court II. ÚS 54/08 |
|
15. |
16 June 2009 |
21 November 2003 Spišská Nová Ves District Court 2Er 162/2003 |
13 April 2007 |
5 November 2008 (served 16 December 2008) Constitutional Court I. ÚS 369/08 |
|
16. |
17 June 2008 |
17 December 1996 Košice II District Court Er 1389/96 |
4 May 2007 |
27 February 2008 Košice Regional Court 2CoE 95/2007 |