THIRD SECTION

Application no. 28461/10 Å tefan BARILIK against Slovakia lodged on 26 April 2010

STATEMENT OF FACTS

1. The applicant, Mr Štefan Barilik , is a Slovak national, who was born in 1955 and lives in Košice .

A. The circumstances of the case

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

1. Background

2. The applicant is a judicial enforcement officer (“JEO”). In this capacity, he acted on behalf of a creditor with a view to enforcing against a private commercial company (“the debtor”) an order for payment of an amount of money. For that purpose, following the creditor ’ s enforcement petition, the applicant applied for a judicial authorisation of the enforcement of a total amount consisting of the adjudicated principal amount and his costs.

3. The costs were calculated on the basis of a formula applicable in instances when the forcible enforcement is actually carried out, that 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 a voluntary payment by the debtor, 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.

4. In the present case, prior to the issuance of the authorisation, the debtor had of its own motion paid the adjudicated principal amount and the applicant had been informed of that payment.

5. Nevertheless, after the authorisation had been granted, the applicant proceeded with the enforcement of the amount of his fees in the full amount, that is to say in the amount belonging to him in the event when he as JEO actually carries out forcible enforcement.

6. Upon successful enforcement of the applicant ’ s fees, the proceedings were terminated.

2. Claim for compensation

7. 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 even before the enforcement had been authorised.

8. On 16 June 2006 the Košice I District Court ( Okresný súd ) 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 adjudicated amount had been payable and still outstanding. The requisite elements of a claim for compensation in respect of unjustified enrichment had therefore not been met.

9. On 14 June 2007, following the debtor ’ s appeal ( odvolanie ), the Košice Regional Court ( Krajský súd ) overturned the first-instance judgment and granted the action. It held that in instances of voluntary payment the JEO ’ s costs were to be calculated by the latter of the above-mentioned methods (see paragraph 3 above). Calculating the applicant ’ s costs by the former method was disproportionate to how the enforcement had ended.

The enforcement of his costs thus calculated was therefore unlawful and unjustified, which constituted unjustified enrichment on his part to be repaid to the debtor. As for the applicant ’ s compensable costs, he should have pursued them by way of a separate costs order.

10. 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 damage. No hearing had been held and the parties had not been allowed to comment on this new legal qualification of the case.

3. Final domestic decision

11. 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 that the proceedings had been unfair in that the Supreme Court ’ s judgment had been arbitrary and that his right of access to a 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 thus had not been adversarial.

12. On 1 October 2009 the Constitutional Court declared the complaint inadm issible as being manifestly ill- founded. As to the substance, it observed that it was no court of further appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgment. As to the procedure, it found no merit in the applicant ’ s argument 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.

B. Relevant domestic practice

13. 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 applicable only if the enforcement debtor had paid voluntarily both the adjudicated principal amount and the costs of the enforcement.

14. 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 therefore not civil in legal nature. 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).

COMPLAINTS

15. The applicant complains under Article 6 § 1of the Convention that the Supreme Court ’ s substantive assessment of the case had been arbitrary and that he had been deprived of the possibility of exercising his procedural rights in respect of the changed legal qualification of the debtor ’ s claim.

16. On similar grounds, the applicant also alleges a violation of his rights under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

In the proceedings concerning the action against him, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, in view of the Supreme Court ’ s dismissal on 31 March 2009 of the applicant ’ s appeal on points of law on the basis of a new legal qualification of the debtor ’ s claim, on which the applicant was not given an opportunity to comment, was his right of access to a court respected?