MIHAL v. SLOVAKIA
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
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. 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). 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). 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. 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 firstinstance 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. 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. 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). 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. 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 (závažné 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)). 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.