THIRD SECTION

DECISION

Application no. 380/08 by Tibor ŠAFÁRIK against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 18 October 2011 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Egbert Myjer , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Mihai Poalelungi , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 13 December 2007 ,

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 Tibor Šafárik , is a Slovak national who was born in 1942 and lives in Košice .

2 . The Government of the Slovak Republic (“the Government ” ) were represented by their Agent, Ms M. Piro šíková .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

3 . The applicant, a practising lawyer, is a member of the Bar of the Slovak Republic ( Slovensk á advokátska komora ).

4 . On 10 July 2003 the Košice-okolie District Court ( Okresný súd ) appointed the applicant as representative for the claimant in a libel action.

In the same decision, the District Court exempted the claimant from the obligation to pay court fees on account of his indigence.

5 . The action was aimed, among other things, at obtaining the equivalent of some 241,000 euros (EUR) in damages.

6 . On 10 November 2005 the action was dismissed and this decision became final and binding.

2. Remuneration claim

7 . On 30 November 2005 the applicant submitted a claim to the District Court for the remuneration of his services in the above-mentioned action in the amount equivalent to some EUR 4,480.

8 . The applicant based his claim on the premise that the action of his client was pecuniary in nature and that its value for the purposes of calculating the amount of his costs was the amount of the damages sought (see paragraph 5 above).

9 . On 20 November 2006 the District Court dismissed the applicant ’ s claim except for an amount equivalent to some EUR 185.

10 . The District Court held that the action of the applicant ’ s client was by definition without a pecuniary basis and that, consequently, the amount of the applicant ’ s remuneration was to be determined under section 13(6) of the 2002 Decree on Remuneration and Compensation of Advocates ( Ministry of Justice Decree no. 163/2002 Coll. ) with reference to an economic index rather than the amount of his client ’ s claim.

11 . The applicant appealed, arguing that the District Court ’ s decision was contrary to the law and established practice and that he should be paid the same as lawyers appointed by choice, that is to say, on the basis of the financial amount of the claim they assert.

The applicant drew a parallel according to which, in the circumstances, he should have been considered a sui generis client of the court and entitled to remuneration on the same basis as any lawyer acting upon a contract.

In support of this contention, the applicant also submitted that libel actions combined with a claim for damages were clearly treated as having a pecuniary basis for the purposes of calculating court fees.

In addition to the above legal arguments, the applicant considered that his full remuneration was also justified by factual circumstances in that his client was difficult and the applicant had had to put great effort into controlling his client ’ s numerous non-meritorious requests and bringing the case to an end.

12 . On 16 February 2007 the Košice Regional Court ( Krajský súd ) upheld the first-instance decision, merely correcting an error in the calculation of the amount of the remuneration to be paid to the applicant.

13 . The Regional Court found that there was no dispute as to the essence of the applicant ’ s claim for remuneration. However, what remained to be determined was the amount of that remuneration.

14 . To that end, the Regional Court observed that the essence of libel actions was the protection of the claimant ’ s personal integrity. It held that, consequently, such actions had to be considered as not having a pecuniary basis irrespective of a claim for damages that may possibly be attached to them.

Therefore, the amount of a lawyer ’ s remuneration for bringing a libel action was to be calculated under section 13(6) of the 2002 Decree or, as the case may be, section 11(1) of the 2004 Decree (Ministry of Justice Decree on Remuneration and Compensation of Advocates no. 655/2004 Coll.) on the basis of the economic index, as opposed to the amount of the claim for damages.

3. Constitutional complaint

15 . On 30 March 2007 the applicant challenged the decisions of 20 November 2006 and 16 February 2007 by way of a complaint under Article 127 of the Constitution (see paragraph 19 in the “Relevant domestic law below).

16 . Relying on the right to peaceful enjoyment of his possessions, the right to equal treatment and fairness in judicial proceedings, and the prohibition of discrimination, the applicant contended that the impugned decisions had been unlawful, arbitrary and lacking adequate reasoning.

17 . The applicant essentially raised the same arguments as mentioned above and, in addition, submitted that the ordinary courts had erred by confusing the value of the subject-matter of the proceedings, which is a philosophical category, with the value of the claim, which is a procedural category.

18 . On 17 May 2007 the Constitutional Court declared the complaint inadmissible. To the extent that it fell within the Constitutional Court ’ s jurisdiction, the complaint was manifestly ill-founded as there was no indication of any constitutionally relevant arbitrariness or error of fact, law or procedure committed by the ordinary courts.

The decision was served on the applicant on 13 August 2007.

B. Relevant domestic law and practice

1. The Constitution (Constitutional Law no. 460/1992 Coll., as amended)

19 . Article 127 provides that:

“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 a 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 that 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 a person whose rights under paragraph 1 have been violated.”

2. Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time )

20 . Article 30 provides:

“1. A party to the proceedings who meets the requirements for being exempted by a court from the obligation to pay court fees may have a representative appointed upon his or her request, if it is necessary for the protection of his or her interests.

2. Should the protection of the party ’ s interests so require, the President of the Division shall appoint a representative from the Bar.”

21 . Article 31 stipulates:

“1. A court-appointed representative shall have the same status as a representative on the basis of a power of attorney for the whole proceedings, provided that he or she has not been appointed solely for particular acts.

2. Should the court-appointed representative be an advocate, he or she shall have the same status as an advocate to whom a party has given a power of attorney.”

22 . Under the relevant part of Article 138 :

“1. At the request [of the party concerned], a court may exempt [that] party fully or partly from the obligation to pay court fees if it is justified by the situation of that party and provided that it is not a matter of the frivolous or clearly hopeless assertion or defence of a right.

...

3. If a representative has been appointed [by a court] to a party who has been exempted from the obligation to pay court fees, the exemption, to the extent it has been granted, shall extend to the actual expenses of the representative and remuneration for the representation.”

23 . Under Article 140 § 2:

“If a party has been assigned an advocate as a representative, the latter ’ s actual expenses and remuneration for the representation shall be paid by the State; if it is justified, upon the advocate ’ s request, the court may make an appropriate advance.”

3. Relevant judicial practice

24 . Without providing a copy of the decision itself, the applicant submitted that on 12 September 2006 , in an unrelated libel action registered under file number 12C 95/04, the Bratislava V District Court had held that the lawyer ’ s remuneration was to be calculated on the basis of the amount of damages that had been claimed in that action.

The subject matter of the Supreme Court ’ s judgment was the interpretation and application of the rules embodied in Article 142 of the Code of Civil Procedure on awarding costs on the basis of parties ’ success in proceedings.

Although it was not directly relevant to the subject matter of the Supreme Court ’ s judgment, it noted that in proceedings such as those at hand claimants were bound to identify in financial terms the indemnity sought but that the final determination of its amount was at the court ’ s discretion. The Supreme Court held that, in such circumstances, rulings on costs were to be based on the amount awarded and not with reference to the ratio of success between the amount sought and the amount awarded.

COMPLAINTS

26 . The applicant complained under Article 1 of Protocol No. 1 alone and, in substance, also in conjunction with Article 14 of the Convention that his claim for remuneration had been a rbitrarily dismissed , that he had been discriminated against in that, being a legal-aid lawyer, he had been treated less favourably than lawyers appointed by choice and that, contrary to the principle of legal certainty, there was divergent case-law on the matter .

27 . The applicant submitted similar complaints also under Article 6 § 1 of the Convention and, in particular, disagreed with the findings and conclusions of the Constitutional Court .

THE LAW

A. Article 1 of Protocol No. 1 and Article 14 of the Convention

28 . The applicant complained that the outcome of the proceedings on his claim for remuneration was incompatible with his rights protected under Article 1 of Protocol No. 1, taken alone and, in substance, also in conjunction with Article 14 of the Convention.

Article 1 of Protocol No. 1 provides:

“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.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

29 . The Government relied on the relevant domestic law, as interpreted and applied by the domestic courts in the present case and also in other cases (see in particular paragraph 25 above) and argued that the applicant had in fact been asserting a right that he did not have. He could accordingly not be said to have had any “possession” within the meaning of Article 1 of Protocol No. 1. In consequence, neither that provision nor Article 14 of the Convention was applicable ratione materiae to the applicant ’ s case.

30 . In addition, the Government submitted that the applicant could have, but had not, claimed an increase in his remuneration under section 17(3) of the 2002 Decree .

31 . In reply, in summary terms , the applicant disagreed and submitted that the Supreme Court ’ s judgment of 30 January 2007 (see paragraph 25 above), on which the Government had mainly relied, was not relevant to the present case as it concerned a different matter, namely the application of the criterion of success in the proceedings in determining the issue of costs.

32 . On the general plane, 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 decisions 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 ) .

33 . As to a specific instance of absence of a lawyer ’ s remuneration, viewed under Articles 1 of Protocol No. 1 and 14 of the Convention, the Court recalls that, in the case of Van der Mussele v. Belgium ( 23 November 1983, § 48 , Series A no. 70 ), it held specifically 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, whether taken on its own or together with Article 14 of the Convention;”

37 . In these circumstances, the Court finds no basis for reaching a conclusion different from that of the ordinary courts in the present case, as endorsed by the Constitutional Court , that the applicant did not actually have the right he was seeking to assert to remuneration in a higher amount than that awarded by the domestic courts.

It follows that th e relevant part of the application is in any event manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaint

41 . 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