BARILIK v. SLOVAKIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. 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 illfounded. 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. 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. 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).