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THIRD
SECTION
DECISION
Application no.
40544/08
by Anna MICHNICOVÁ
against
Slovakia
The
European Court of Human Rights (Third Section), sitting
on 29 November 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and
Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 30 July 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
- The
applicant, Ms Anna Michnicová, is a Slovak
national who was born in 1957 and lives in Bratislava. She was
represented before the Court by Advokátska kancelária
Ivan Syrový, s.r.o., a law firm with its registered office in
Bratislava.
- 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.
- The
applicant is a judicial enforcement officer (súdny executor
– “JEO”).
- The
status and powers of and procedures relating to JEOs are governed by
the Enforcement Code (Law no. 233/1995 Coll., as amended - “the
Code”), details concerning the remuneration of JEOs for
carrying out enforcement proceedings being laid down in the Decree of
the Ministry of Justice on Reimbursement and Compensation of JEOs
(Decree no. 288/1995 Coll., as amended - “the
Decree”).
- In
her official capacity, the applicant acted on behalf of the municipal
District of Bratislava – Staré mesto (“the
claimant”) in seeking the enforcement of an amount of money
payable to the claimant by two individuals (“the defendants”)
under a judgment of the Bratislava II District Court (Okresný
súd) of 13 September 2000. The sum payable arose in
consideration for the sale of non-residential premises by the
claimant to the defendants.
- Under
the Decree, as it then stood, the basis for calculating the
applicant’s remuneration was the amount of the claim that was
being enforced (vymáhané). After the events
complained of had taken place, this provision was changed in that the
basis for the calculation of a JEO’s remuneration was to be the
amount of the claim that had actually been enforced (vymoZené).
Should the entire claim be enforced, the remuneration would be 20% of
that base figure (see paragraphs 33 to 35
in the “Relevant domestic law and practice” section
below).
- On
28 August 2003 the claimant requested that the applicant enforce the
judgment and late-payment penalties against the defendants. The
accumulated claim amounted in total to the equivalent of
30,150 euros (EUR).
- On
11 September 2003 a single judge of the District Court authorised the
applicant to carry out the enforcement.
- On
24 September 2003 the applicant issued a notice of enforcement
(upovedomenie o začatí exekúcie) by which
she notified the defendants that the enforcement proceedings had
commenced and that, unless they settled their debt within fourteen
days, the applicant intended to enforce the judgment and costs of the
enforcement by establishing a mortgage over real property belonging
to the defendants and by seeking a forced sale of that property.
- On
8 January 2004 the applicant issued an order for enforcement
(exekučný príkaz) of the judgment. By this
order she directed the defendants’ bank to deduct the judgment
debt and costs of the enforcement from the defendants’ account.
By these means, amounts equivalent to some EUR 1,450 and EUR 350
were recovered, respectively, for the benefit of the claimant and the
applicant by way of her remuneration.
- On
11 February 2004 the claimant and the defendants reached
a settlement, in which:
(i) the
defendants acknowledged their debt (equivalent to EUR 30,410),
consisting of the principal amount (EUR 30,150) and legal fees
payable by them (EUR 260);
(ii) the
claimant waived one half of the debt on the condition that the
defendants paid the remainder according to a payment schedule agreed
upon, less the EUR 1,450 that they had already paid; and
(iii) the
claimant undertook to withdraw its enforcement petition on the
condition that the defendants “settle all provable expenses of
[the applicant] that [had been] incurred in connection with the
enforcement of the clam [referred to above]”.
- On
8 March 2004, the claimant lodged a request with the applicant for
the enforcement to be discontinued. Reference was made to
“an agreement on the payment of the owed amount”.
- Between
26 May 2004 and 22 February 2005, the applicant requested that the
District Court discontinue the proceedings and rule on her costs and
the District Court invited the applicant to submit further
information. The applicant responded, specifying the amount of her
outstanding claim for remuneration at the equivalent of EUR 7,300.
- In
a letter dated 14 February 2005 the claimant informed the applicant
that the defendants had paid the outstanding amount of their debt.
- On
9 May 2005 the District Court discontinued the enforcement
proceedings and ruled that the defendants were to pay the applicant
the equivalents of EUR 11 by way of remuneration and of EUR 100
exclusive of value-added tax (“VAT”) by way of
reimbursement for the costs of enforcement.
- The
District Court referred to Article 203 of the Code and to sections 5
and 16 of the Decree (see paragraphs 32 and 35
to 37 in the “Relevant domestic law and
practice” section below). It based the calculation of the
applicant’s remuneration on the amount that had been actually
obtained for the claimant through the direct involvement of the
applicant (EUR 1,450). The amount of remuneration already paid
(EUR 350) was deducted.
- The
decision of 9 May 2005 stated that it was not subject to appeal.
Later on, the Code was amended so that a decision on the
remuneration and reimbursement of a JEO’s costs was made
subject to appeal (see paragraph 30 in the
“Relevant domestic law and practice” section below).
- On
18 July 2005 the applicant challenged the ruling of 9 May 2005
concerning her remuneration by way of a complaint under Article 127
of the Constitution to the Constitutional Court (Ústavný
súd) (see paragraph 27 in the
“Relevant domestic law and practice” section below).
- She
relied on a judgment (nález) of the Constitutional
Court of 17 December 2004 in case no. II. ÚS 31/04 (see
paragraph 38 in the “Relevant domestic law
and practice” section below) and argued, first of all, that her
claim for remuneration constituted “possessions” for the
purposes of Article 1 of Protocol No. 1.
- The
applicant further argued that there was no justification in law for
limiting the amount of her remuneration by calculating it on the
basis of the amount actually enforced through her direct involvement.
She submitted that the object and purpose of the relevant rules had
required that the amount of her remuneration should have been
calculated on the basis of the total amount paid by the defendants to
the claimant while the enforcement proceedings were pending. This was
implied, inter alia, in section 5(2) of the Decree read in
conjunction with Article 46 § 3 of the Code (see paragraphs 28
and 36 in the “Relevant domestic law and
practice” section below), which regulated the remuneration of
a JEO in the event that a defendant settled his or her debt
voluntarily.
- A
different approach would allow any defendant to circumvent the law by
delaying payment of his or her debt until enforcement proceedings
commenced and then paying the debt directly to the creditor without
having to bear the consequences, such as the costs of the
enforcement.
A
distinction between amounts paid through the involvement of a JEO
and directly to the creditor without the involvement of a JEO was
unfounded and unlawful.
- Accordingly,
the applicant asserted a violation of her rights under Article 1 of
Protocol No. 1 and its constitutional counterpart.
- On
23 October 2007 the Constitutional Court declared the applicant’s
complaint inadmissible as manifestly ill-founded.
- The
Constitutional Court observed that the applicant’s entitlement
to remuneration as such had not been contested but that what remained
disputed was that remuneration’s amount.
- In
those circumstances, her claim did not amount to an existing
“possession”. Neither could her hope of her entitlement
being realised as a specific amount in accordance with her
interpretation of the relevant laws be considered “legitimate”
so as to amount to a “possession” under the
applicable case-law.
- The
Constitutional Court accepted that the present decision was “at
[a] certain variance” with its above-cited judgment in case no.
II. ÚS 31/04. However, that judgment had concerned a specific
problem relating to VAT. Even though it had not been expressly stated
in that judgment, a JEO liable to pay VAT on his or her
remuneration had a legitimate expectation to have that amount of
tax reimbursed by a defendant. The present decision was thus
fully in compliance with the Court’s jurisprudence.
B. Relevant domestic law and practice
1. The Constitution (Constitutional law no. 460/1993
Coll., as amended)
- Article
127 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.”
2. Enforcement Code
- Under
Article 46 § 3, as applicable at the relevant time, a JEO is
to “abandon” (upustí) enforcement
proceedings if the debtor has complied with its obligations as
adjudicated and has settled the costs of the enforcement.
- The
supervising court is to discontinue (zastaví) the
enforcement if the person who initiated the enforcement has so
requested (Article 57 § 1 (c)).
- Under
the Code, as applicable at the relevant time, no appeal lay against a
decision on costs upon the discontinuation of enforcement
proceedings. However, on 1 September 2005 an amendment
(Law no. 341/2005 Coll.) to the Code entered into force,
pursuant to which such decisions are now subject to appeal (Article
58 § 5 of the amended Code).
- In
respect of enforcement carried out under the Code, a JEO is entitled
to remuneration, reimbursement of costs and compensation for time
spent on the matter. These expenses are normally to be borne by the
debtor (Articles 196 and 197 § 1) (see also the Court’s
decisions of 28 June 2011 in the cases of Mihal v. Slovakia
no. 23360/08 (§§ 24 and 25) and no. 31303/08 (§§
36 and 37)).
- If
the creditor causes the discontinuation of enforcement proceedings,
the court can order him or her to cover the necessary costs of the
enforcement (Article 203 § 1). This provision implies that the
court has the ability, not an obligation, 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 case no. I. ÚS 48/05) (see also Mihal v. Slovakia,
no. 3133/08, cited above, §§ 38-40).
3. Decree on Reimbursement and Compensation of Judicial
Enforcement Officers
- Under
section 4(1), as applicable at the relevant time, the basis for
calculating a JEO’s remuneration was the amount of the claim
that was being enforced (vymáhané).
- With
effect as from 1 May 2008, section 4(1) of the Decree was amended
(Decree no. 141/2008 Coll.) to the effect that a JEO’s
remuneration was no longer to be calculated on the basis of the
amount of claim that was being enforced (vymáhané),
but rather on the basis of the amount of the claim that had actually
been enforced (vymoZené).
An
introductory report (predkladacia správa) and an
explanatory report (dôvody) on the amendment refer to
“interpretative question marks” and “inconsistent
practice in applying” the existing rules in respect of the
basis for calculating the remuneration of judicial enforcement
officers. The amendment has no retroactive effect.
- Under
section 5(1), a JEO’s remuneration is to be 20% of the figure
used as the basis for calculation.
- In
the event that defendants settle their debts themselves and the
enforcement is consequently “abandoned” under Article 46
§ 3 of the Code, the JEO’s remuneration is to be reduced
to one half of the amount calculated pursuant to the above mentioned
rules (section 5(2)).
- If
a JEO succeeds in enforcing part of a claim before its enforcement is
discontinued, the JEO’s remuneration is to be calculated on the
basis of the amount actually enforced (vymoZené)
(section 16(2)). This provision applied at the relevant time and has
remained unaffected throughout the subsequent legislative
developments.
4. Relevant judicial practice
- On
17 December 2004 the Constitutional Court gave a judgment (nález)
in an unrelated case no. II. ÚS 31/04, concerning the
applicability of VAT to the remuneration of JEOs. In this judgment,
the Constitutional Court held that:
“The term ‘possessions’ encompasses
things, rights and claims. The Constitutional Court therefore
considers that compensation in respect of costs of the proceedings,
which is due to a [JEO] upon the discontinuation of enforcement
proceedings, constitutes possessions, which are acquired by virtue of
a final and binding ruling of an ordinary court awarding it. This
claim fully enjoys the protection of [...] Article 1 of Protocol No.
1, because compensation in respect of costs of the proceedings is
undoubtedly a claim of a party to the proceedings against another
party to the proceedings, which is moreover enforceable as any other
financial claim.
A claim for compensation of costs of proceedings has to
be allowed to the party concerned in the entire scope envisaged by
statute, which includes [VAT] in so far as the party concerned is
liable to pay that tax under the applicable statute on the amount
awarded.”
COMPLAINTS
- The
applicant complained under Article 1 of Protocol
No. 1 that the domestic courts had erred in law by calculating the
amount of her remuneration on the basis of the amount that had been
enforced through her direct involvement, as opposed to the total
amount obtained by the claimant from the defendants during the
enforcement proceedings, and that her property rights had been
violated as a result.
- The
applicant also complained under Article 6 § 1 of the Convention
that she had been denied access to a court, in that the ruling in
respect of her remuneration had not been subject to appeal.
THE LAW
A. Article 1 of Protocol No. 1
- The
applicant complained that the domestic courts had erred in law by
calculating the amount of her remuneration with reference to the
amount that had been enforced through her direct involvement, as
opposed to the total amount obtained by the claimant from the
defendants during the enforcement proceedings. She alleged a
violation of her property rights under Article 1 of Protocol No. 1,
which provides 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.”
- The
Government relied on the findings of the District Court of 9 May
2005 and the Constitutional Court of 23 October 2007 and argued,
first of all, that the applicant had had no possessions enjoying the
protection of Article 1 of Protocol No. 1.
- The
Government further submitted that, in the present case, a special
rule embodied in Article 203 of the Code had been applied with the
effect that, as opposed to the general rule under Article 197 §
1 of the Code, the costs of the enforcement had been borne by the
claimant. This had occurred because the discontinuation of the
enforcement under Article 57 § 1 (c) of the Code had been
attributable to the claimant, who had requested it. Furthermore, the
Government pointed out that under section 16(2) of the Decree if a
JEO was successful in enforcing part of a claim, the JEO’s
remuneration had always been required to be calculated on the basis
of the amount actually enforced (vymoZené). They
concluded that the complaint should be rejected under Articles 35 §§
3 and 4 of the Convention.
- In
reply, the applicant disagreed and reiterated her complaint.
In particular, she pointed out that the pivotal point of the
present case, and at the same time the point on which she was in
direct disagreement with the domestic courts and the Government, was
the interpretation of the term “amount actually enforced”,
which had served as the basis for the calculation of her
remuneration. This term had no statutory definition and, according to
her, there had neither been any legal justification nor logical
reason for limiting it to the amount actually enforced through her
direct involvement.
- The
Court considers that it first has to establish whether the present
complaint falls ratione materiae within the ambit of Article 1
of Protocol No. 1.
- For
that matter, the Court reiterates that Article 1 of Protocol No. 1
does not guarantee the right to acquire property and that an
applicant can allege a violation of Article 1 of Protocol No. 1 only
in so far as the impugned decision(s) related to his or her
“possessions” within the meaning of this provision.
“Possessions” can be either “existing possessions”
or assets, including claims, in respect of which the applicant can
argue that he or she has at least a “legitimate expectation”
of obtaining effective enjoyment of a property right (for a
recapitulation of the relevant principles and further references see,
for example, Kopecký v. Slovakia [GC], no. 44912/98,
§ 35, ECHR 2004 IX).
- The
Court recalls that in the case of Van der Mussele v. Belgium
(23 November 1983, § 48, Series A no. 70) it held that:
“[Mr Van der Mussele’s] arguments do not
bear examination in so far as they relate to the absence of
remuneration. The text set out above is limited to enshrining the
right of everyone to the peaceful enjoyment of “his”
possessions; it thus applies only to existing possessions (see,
mutatis mutandis, the above-mentioned Marckx judgment,
Series A no. 31, p. 23, § 50). In the instant case, however, the
Legal Advice and Defence Office of the Antwerp Bar decided on 18
December 1979 that no assessment of fees could be made, because
of Mr. Ebrima’s lack of means [...]. It follows, as the
Commission unanimously inferred, that no debt in favour of the
applicant ever arose in this respect.
Consequently, under this head, there is no scope for the
application of Article 1 of Protocol No. 1 [...]”
- The
Court also recalls that the tenet of Van der Mussele v. Belgium
has recently been found in principle to be applicable to the
remuneration of a lawyer (see Šafárik v. Slovakia
(dec.), no. 380/08, [to be added])) and mutatis mutandis
applicable to that of a JEO (see Mihal v. Slovakia, decisions
in the cases nos. 23360/08 and 31303/08, cited above, §§ 60
and 94 respectively).
- In
so far as the applicant relied on the Constitutional Court’s
judgment of 17 December 2004 (see paragraph 38
in the “Relevant domestic law and practice” above) in
arguing that her claim to remuneration fell within the substantive
scope of Article 1 of Protocol No. 1, the Court observes first of all
that that judgment concerned a specific problem relating to VAT,
which is different from the present context. The Court also notes
that, in the judgment of 17 December 2004, the Constitutional Court
itself acknowledged that any “possession” inherent in a
JEO’s claim for remuneration would only be acquired upon a
final and binding ruling of an ordinary court awarding it, which
was not the case as regards the applicant in the present case. These
distinctions were acknowledged and/or are in harmony with the content
and tenor of the Constitutional Court’s decision of 23 October
2007 in the present case. Therefore, the applicant’s argument
made in reliance on the Constitutional Court’s judgment of
17 December 2004 cannot be sustained.
- Nevertheless,
the Court considers that, for the reasons specified below, the
present complaint is inadmissible even assuming that Article 1 of
Protocol No. 1 applies ratione materiae to it.
- The
Court observes that the entitlement of the applicant to remuneration
as such was not disputed. What remained contested was the scope of
that entitlement.
- In
that respect, the Court notes that the crux of the present case is
the question of the lawfulness of the domestic courts’
conclusions as regards the meaning of the term “amount actually
enforced”, which served as a basis for the calculation of the
specific amount of the applicant’s remuneration.
- This
is, however, a matter of interpretation and application of domestic
law, which the Court has a limited power to review (see, mutatis
mutandis, Beyeler v. Italy [GC], no. 33202/96, § 108,
ECHR 2000-I).
- The
Court observes that the question of the applicant’s
remuneration was examined and decided upon by the District Court in
its decision of 9 May 2005. In that decision, relying on Article
203 of the Code and sections 5 and 16 of the Decree, the District
Court interpreted and applied the term “amount actually
enforced” as meaning the amount that had actually been enforced
through the applicant’s direct involvement as a JEO. The
constitutionality of this assessment was subsequently subject to
review by the Constitutional Court.
- Guided
by the subsidiary nature of its role (see García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999-I), the Court
finds that nothing has been submitted by the applicant or otherwise
established by the Court allowing it to conclude that the
interpretation and application of the relevant law by the domestic
courts was manifestly arbitrary so as to overstep the limits of
lawfulness within the meaning of Article 1 of Protocol No. 1.
- Therefore,
even assuming that the applicant’s complaint under that
provision falls ratione materiae within the ambit of Article 1
of Protocol No. 1, it is in any event manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and
4 of the Convention.
B. Remaining complaint
- The
applicant also alleged a violation of Article 6 § 1 of the
Convention in that no appeal had been available to her in respect of
the ruling concerning her remuneration.
- The
Court observes that the applicant did not raise this complaint before
the Constitutional Court and that, in any event, she could have –
and in fact partly had – had the impugned ruling reviewed by
that court.
- It
follows that the remainder of the application is in any event
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
