Resolution CM/ResDH(2013)73 Mihal against the Slovak Republic Execution of the judgment of the European Court of Human Rights

(Application No. 22006/07, judgment of 5 July 2011, final on 5 October 2011)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established ;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)111E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

Application No. 22006/07 Mihal v. Slovakia

judgment of 5/7/2011, final on 05/10/2011

Introductory case summary

This case concerns the denial of applicant ’ s appeal to a judge against decisions taken by senior court officers and the divergent case law of the Constitutional Court on that context.

The applicant, in his official capacity as a judicial enforcement officer, acted on behalf of a number of judgment creditors with a view to enforcing their claims. The enforcement proceedings were discontinued and orders for payment of the applicant ’ s costs were issued. The decisions were taken on the authority of the district courts, as the courts at the first level of jurisdiction, acting through their senior court officers. Under Section 2 of the Court Officers Act (Law No. 549/2003 Coll., as amended), senior court officers are civil servants and, as such, are considered to be employees of the court. The written versions of the decisions stated that they were final and not subject to appeal. The applicant nevertheless appealed, seeking compensation for his costs in a higher amount. As to the admissibility of his appeals, the applicant relied on Article 142 § 2 of the Constitution (Constitutional Law No. 460/1992 Coll., as amended), which provides for the right of appeal to a judge against decisions taken by employees of the court. The applicant ’ s appeals, subsequent appeals on points of law as well as complaints under Article 127 of the Constitution were all declared inadmissible. The applicant ’ s constitutional complaints in respect of the enforcement proceedings in file nos. 19Er 90/04 and Er 533/00 were declared inadmissible on the ground that the applicant had failed to exhaust ordinary remedies by asserting his rights by way of an appeal on points of law. The remaining constitutional complaints were declared manifestly ill ‑ founded, although in respect of the enforcement proceedings in file nos. Er 641/2004 and Er 2541/2001 no appeal on points of law had been lodged. The ordinary courts and the Constitutional Court (in decisions nos. III. ÚS 344/06, II. ÚS 27/07, II. ÚS 28/07 and III. ÚS 66/07) held that, pursuant to Article 202 § 2 of the Code of Civil Proceedings (Law No. 99/1963 Coll., as amended) (“the CCP”), decisions in enforcement proceedings, which included decisions on the costs of enforcement, were not subject to appeal. This rule was in the position of lex specialis in relation to Article 142 § 2 of the Constitution and was held to take precedence over the latter. The fact that the impugned decisions had been taken by employees of the court and not by judges was therefore found to be of no consequence. In a number of unrelated but similar situations, raised before the Constitutional Court by the applicant, the Constitutional Court took contradictory views. In the judgments concerning applicant ’ s cases nos. I. ÚS 191/06, III. ÚS 348/06, IV. ÚS 209/07 and IV. ÚS 200/07 the Constitutional Court stated that legislation is always to be interpreted and applied in conformity with the Constitution. Senior court officers do not provide the guarantees of judicial independence under Article 6 § 1 of the Convention. Their decisions can therefore never be final and must always be reviewable by a judge. Interpreting the relevant legislative rules at variance with the wording, object and purpose of Article 142 § 2 of the Constitution is out of the question.

I. Payment of just satisfaction and individual measures

a) Just satisfaction

Case

Application No.

Date of judgment

Just satisfaction

Paid on

Mihal

22006/07

05/07/2011

4 000 EUR

16/12/2011

b) Individual measures

The European Court rejected the applicant ’ s claim for pecuniary damage in relation to the costs he had been seeking. It stated that it could not discern any causal link between the violation found and the pecuniary damage alleged and it could not speculate about the outcome of the proceedings had they been in conformity with Article 6 § 1. However, it awarded the applicant non-pecuniary damage.

In conclusion, no other individual measures appear necessary.

II. General measures

a) Publication and dissemination

The judgment was published in the Judicial Revue ( Justičná Revue ) No. 12/2011.

b) Legislation

The relevant legislation was already amended before delivery of the judgment of the Court in the present case.

With effect from 1 July 2007, the relevant provisions of the CCP were amended by Law No. 273/2007 Coll. Since then the amended rule (section 374 (4)) has specifically provided that an appeal to a judge against decisions taken by senior court officers is always available. The explanatory memorandum of the amending Law No. 273/2007 Coll. refers to Article 142 § 2 of the Constitution and acknowledges that, under that provision, an appeal had been available against such decisions even previously.

In conclusion, the issue of divergent case law of the Constitutional Court became obsolete. Therefore, no other general measures appear necessary.

III. Conclusions of the respondent State

The government considers that the Slovak Republic has thus complied with their obligations under Article 46 § 1 of the Convention.

In Bratislava, 6 February 2013

Marica Pirošíková

Agent of the Slovak Republic

before the European Court of Human Rights