CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 février 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s9C23B4C7 { width:6.99pt; display:inline-block } .sE9FED4F7 { width:166.58pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s5A070004 { width:213.96pt; display:inline-block }   THIRD SECTION DECISION Application no. 28461/10 Štefan BARILIK against Slovakia The European Court of Human Rights (Third Section), sitting on 18   February 2014 as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Kristina Pardalos,   Johannes Silvis,   Valeriu Griţco, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 26 April 2010, 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 Štefan Barilik, is a Slovak national, who was born in 1955 and lives in Košice. He was represented before the Court by Mr   A.   Fuchs, 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 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background 4.     The applicant is a judicial enforcement officer (“JEO”). In this capacity, he acted on behalf of a creditor with a view to enforcing an order for payment against a   private commercial company (“the debtor”). In the furtherance of those proceedings, following the creditor lodging an   enforcement petition, the applicant applied for a court order authorising the enforcement of a sum consisting of the principal judgment debt and his costs. 5.     The costs were calculated on the basis of a formula applicable in instances when enforcement is actually carried out by the JEO, which is to   say as a percentage of the principal amount to be enforced. It would later become the object of a dispute whether, in the event of voluntary payment by the debtor in the course of the enforcement proceedings, the costs were to be calculated differently, in particular on the basis of an hourly fee for the time actually spent by the JEO on the given file. 6.     In the present case, prior to the issuance of the authorisation, the debtor had of its own motion paid the principal judgment debt and the applicant had been informed of that payment. 7.     Nevertheless, after the authorisation had been granted, the applicant proceeded with the enforcement of the amount of his fees in full, in other words the sum that he would have been awarded as a JEO if he had actually carried out the enforcement of the order for payment. 8.     Upon successful enforcement of the applicant’s fees, the proceedings were terminated. 2.     Claim for compensation 9.     On 12 August 2003 the debtor filed an action against the applicant seeking an order for payment of the equivalent of some 3,400 euros (EUR) by way of unjustified enrichment. It was argued that it had been absurd for the applicant to carry on with the enforcement knowing that the debtor had paid its debt before the enforcement had even been authorised. 10.     The applicant defended the action and was represented by a lawyer. The action was heard by the Košice I District Court ( Okresný súd ) on 6   December 2005, 27 March, 13 June and 16 June 2006. 11.     At the conclusion of the hearing of 16 June 2006, the District Court dismissed the claim. It held that the course of action taken by the applicant had been lawful in view of the fact that, at the time of the introduction of the petition for enforcement, the principal judgment debt had been payable and still outstanding. The requisite elements of a claim for compensation in respect of unjustified enrichment had therefore not been met. 12.     The debtor filed an appeal ( odvolanie ) to the Košice Regional Court ( Krajský súd ), which heard the appeal on 19 April and 14 June 2007. 13.     On 14 June 2007, following the hearing held that day, the Regional Court allowed the appeal and overturned the first-instance judgment. It held that in instances of voluntary payment the JEO’s costs were to be calculated on an hourly-fee basis (see paragraph 5). Calculating the applicant’s costs as a percentage of the original award was disproportionate to the work carried out by him to complete the enforcement. The enforcement of his costs thus calculated had therefore been unlawful and unjustified, which constituted unjustified enrichment on his part to be repaid to the debtor. As for the applicant’s recoverable costs, he should have pursued them by way of a separate costs order. 14.     On 31 March 2009 the Supreme Court ( Najvyšší súd ) dismissed the applicant’s appeal on points of law ( dovolanie ). It concurred with the Regional Court’s conclusion, albeit on different legal grounds. In particular, it held that the case at hand was not one of unjustified enrichment, but rather one of damages. No hearing was held and the parties were not allowed to   comment on this new legal qualification of the case. 3.     Final domestic decision 15.     On 14 August 2008 the applicant lodged a complaint under Article   127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court ( Ústavný súd ). He relied on Article   6 § 1 of the Convention and argued (a) the proceedings had been unfair in that the Supreme Court’s judgment had been arbitrary and (b) his right of access to court had been violated in that the Supreme Court had substantially changed the legal qualification of the case without allowing him an opportunity to comment. The proceedings had thus not been adversarial. 16.     On 1 October 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill ‑ founded. It observed that it was not a   court of final appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgment. In particular, it found no merit in the applicant’s arguments, observing that proceedings on appeals on points of law were of a   specific and extraordinary type which, as a general rule, called for no hearing and for the taking of no further evidence. The decision was served on the applicant on 27 October 2009. B.     Relevant domestic law and practice 1.     Code of Civil Procedure (Law no. 99/1963 Coll., as amended) 17.     The relevant provisions concerning appeals on points of law are laid down in Articles 236 et seq . They are summarised in the Court’s judgment in the case of Ringier Axel Springer Slovakia v. Slovakia (no. 41262/05, §§   61-68, 26 July 2011). 18.     In addition, Article 243a provides that, as a general rule, appeals on points of law are to be determined without a hearing; that a   hearing may nevertheless be held as an exception if it is deemed necessary; and that if a   hearing is held, no evidence is to be taken. 2.     Judicial practice in respect of JEOs’ status, costs and professional liability 19.     In a judgment on an appeal in an unrelated case (no. 15Co 165/2008), the Bratislava Regional Court held that a reduction of the costs of enforcement to be paid by an enforcement debtor was only applicable if the enforcement debtor had voluntarily paid both the principal judgment debt and the costs of the enforcement. 20.     In a judgment on an appeal on points of law in an unrelated case (no.   3Cdo 58/09), the Supreme Court observed that, when exercising their office, JEOs exercise functions of a State organ. Their relationship with the parties to the enforcement proceedings is not, therefore, one of private law. There is therefore no scope for a claim for compensation in respect of unjustified enrichment. The JEOs are rather liable for damages under special provisions of the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended). COMPLAINTS 21.     The applicant complained under Article 6 § 1 of the Convention that the Supreme Court’s substantive assessment of the case had been arbitrary and that he had been deprived of the possibility of exercising his procedural rights in respect of the changed legal qualification of the debtor’s claim. 22.     On similar grounds, the applicant also alleged a violation of his rights under Article 1 of Protocol No. 1. THE LAW A.     Access to court and adversarial proceedings 23.     The applicant alleged that he had been denied the possibility of asserting his rights as regards the changed legal qualification of the debtor’s claim, contrary to the requirements of Article 6 § 1, the relevant part of which reads as follows: “1.     In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing .. by [a] ... tribunal ...” 24.     In reply, the Government pointed out that, as recognised by the Constitutional Court in its decision of 1 October 2009, proceedings on points of law were a special and extraordinary type of proceeding which had particular procedural rules, including that, as a general rule, no hearing was to   be held and, even if a hearing was held, no evidence was to be taken. The compatibility of the proceedings in the present case with the guarantees of Article 6 of the Convention was to be viewed with regard to those particular procedural rules and to the fairness of the proceedings as a whole. From that perspective, it was to be taken into account that a good number of hearings had been held before the court of first instance and the Court of Appeal. In addition, the applicant’s appeal to the Supreme Court had only raised questions of law, there had been no dispute on any question of fact, and the Supreme Court’s decision had been supported by congruous and comprehensive reasons. Lastly, on a more general plane, the Government asserted that the level of procedural guarantees available was to be assessed in correlation with the right to a   hearing within a reasonable time. They concluded that the complaint was manifestly ill-founded. 25.     In a rejoinder, the applicant submitted no more than that he was not surprised by the Government’s stance. 26.     The Court observes that the present case revolves around the applicant’s contention that the unprompted change by the Supreme Court of the legal qualification of the compensation claim against the applicant, without informing him and giving him any opportunity to   comment, was incompatible with his rights under Article 6 § 1 of the Convention. It considers that it most naturally falls to be looked upon from the point of view of the guarantees of access to court and adversarial proceedings under that Article. 27.     In that respect, the Court reiterates that Article 6 § 1 of the Convention guarantees everyone’s right to have his or her civil rights and obligations determined by a court. It thus enshrines a “right to a court”, of which the right of access, namely the right to apply to a court in civil proceedings, is only one aspect. However, the “right to a court” is not absolute. It lends itself to limitations since, by its very nature, it requires regulation by the State, which may select the means to be used for that purpose. However, these limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see, for example, Georgel and Georgeta Stoicescu v. Romania , no.   9718/03, § 68, 26 July 2011, with further references). 28.     The Court would also reiterate that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or courts of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that litigants enjoy an effective right of access to the courts for the determination of their “civil rights and obligations”. The manner in which Article 6 § 1 applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the relevant court’s role in them. In addition, provided that there has been a public hearing at first instance, the absence of “public hearings” before a second- or third-instance court may be justified by the special features of the proceedings in issue. Thus, leave-to-appeal proceedings and proceedings involving only questions of law may comply with the requirements of Article 6, although the appellant was not given the opportunity of being heard in person by the appeal or cassation court (see K.D.B. v. the Netherlands , 27 March 1998, § 38-39, Reports of Judgments and Decisions 1998 ‑ II, with further references). 29.     Turning to the specific circumstances of the present case, the Court observes that it concerned a compensation claim directed against the applicant in his capacity as a JEO, that is to say a legally-qualified professional; that it concerned his professional liability; and that the applicant defended the claim with the assistance of a lawyer. The courts of first instance and appeal had heard the case on six occasions before the Supreme Court determined the applicant’s appeal on points of law without a   hearing. 30.     The Court notes that under the applicable procedural law the Supreme Court was free to dispense with a public hearing when adjudicating the applicant’s appeal on points of law; that under that law it was not entitled to take new evidence; that there is no indication of it having taken any such evidence; that there has been no dispute over any matter of fact; and that the Supreme Court could only (and did only) examine the case on points of law. 31.     The Court further notes that the applicant has not shown that he was actually restricted in the effective exercise of his right to have his civil rights and obligations determined in a manner compatible with the requirements of Article 6 § 1 of the Convention. In particular, there is no indication that he was in any way restricted from pleading his case on any matter of fact or law that he might have deemed fit before the lower courts, or that the changed legal classification of the case by the Supreme Court could not have been foreseen by him as a diligent party (see the summary of the relevant principles and, a contrario , the findings in Čepek v. the Czech Republic , no. 9815/10, §§ 44-48 and 55 et seq , 5 September 2013 with further references). 32.     In sum, having regard to the civil-law nature of the impugned proceedings, the special features of the proceedings on appeals on points of law in Slovakia, and the present proceedings as a   whole, the Court finds no appearance of a violation of the applicant’s rights of access to court or to adversarial proceedings under Article 6 § 1 of the Convention or, for that matter, of any other of his rights under that provision. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.     Remaining complaints 33.     The applicant alleged a violation of Article 6 § 1 of the Convention because he considered the Supreme Court’s substantive assessment of the case to have been arbitrary and, for similar reasons as mentioned above, also complained of a violation of his rights under Article 1 of Protocol No. 1. 34.     However, in the light of all the material in its possession, and in so far as the matters complained of in this part of the application are within its competence, the Court finds that they do not disclose any appearance of a   violation of the rights relied upon. It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President