AFFAIRE MIHAL CONTRE LA SLOVAQUIE

Rezoluția CM/ResDH(2013)73 Mihal împotriva Republicii Slovace Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 22006/07, Hotărârea din 5 iulie 2011, definitivă la 5 octombrie 2011) (adoptată de Comitetul de Miniștri la 30 aprilie 2013, cu ocazia celei de-a 1169-a ședințe a Delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă, care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcarea constatată reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013)111E SÕ fiind asigurat că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL pe care și l-a îndeplinit în temeiul articolului 46 alineatul (2) din Convenție în această cauză și DECIDE d Judge against decisions taken by senior scurt offices and the difference case law of the Constitutional Court on that context. The applicant, in his official capacity as a juridic enforcement official official official official official official, actd on behalf of a number of play of judgment crediters with a view to enforcing their claims. The enforcement proceding process were discontinued and orders for payment of the aplicants costs were issued. Decisions were taken on the authority of the districts scurts, as the Court Officers at the first level of jurisdiction, acting through their senior scurt offiters. Under Section 2 of the Court Officers Act (Law No. 549/2003 Coll., as amendad), senior scurt offices are civils servis and, as such, are considered to be angajates of the curte. The written versions of the decisions stated that they were final and not subject to appeal. The applicant totuși appealed, seeking compensation for his costs in a higher amount. As to the admissibility of his appeals, the applicant linked 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 entreprisees of the part. The appicants, subsequent appeals on points of law aswell as complaints under Article 127 of the Constitution were all declarated neadmisible. The appicants constitutional complaints in respect of the enforcement proceedings in file no. 19Er 90/04 and Er 533/00 were declarad inadmisibil on the ground that the aplicant had failed to exhaust ordinary remedies by asserting his rights by way of an appeal on points of law. The remaining constitutional complaints were declarad manifestly ill Founded, although in respect of the enforcement proceedings in file nos. Er 641/2004 and Er 2541/2001 no appeal on puncts of law had been lodged. The Ordinary Courts and the Constitutional Court (in decisions no. III. ÚS 344/06, II. ÚS 27/07, II. 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) ( mai exact, decizii inforcement proceedings, which included decisions on the costs of enforcement, were not subject to appeal. This rule was in the pozition of lex specialis in relation to Article 142 § 2 of the Constitution and was held to "Take precedence over the latter. Thefact that the impugned decisionss had been taken by employment of the court and not by judges was prin urmare found to be of no consecvence. In a number of unrelated but similarar situations, arseed before the Constitutional Court by the aplicant, the Constitutional Court took took contradictory views. In the judgments quesing aplicants cases. 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 scurt offices do not provide the guarantees of juridice independence under Article 6 § 1 of the convention. Their decisions can prin urmare never be final and must always be reviewable by a judge. Interpretare the legislative rules at variance with the wording, object and purpose of Article 142 § 2 of the Constitution is out of the question. Payment of just satisfaction and individual measures a) Justice Case Application No. Data of judgment Justice Paid on Mihal 22006/07 05/07/2011 000 EUR 16/12/2011 b) Individual measures The European Court rejected the applicicants claim for pecuniary damage in relation to the costs he had been seeking. It stated that it could not discern any queal between the violation found and the pecuniary damage alleged and it could not speculate about the outcome of the proceseedings had they been in conformity with Article 6 § 1. However, it awarded the applicant non-peniary damage. In concluzie, no other individual measures appear necessary. II. General Measures a) Publication and disemination The judgment was publicished in the Judicial Review (Justičná Review) No. 12/2011. b) Legislation The subsectoration was already amended before delivery of the judgment of the Court in the present case. With effect from 1 July 2007, the supports of the CPC were amended by Law No. 273/2007 Coll. Since the amendad rule (secțiunea 374 (4)) has specially provided that an appeal to a judge against decisions taken by senior scurt offices is always available. The explanatory memorandum of the amending Law No. 273/2007 Coll. Refles to Article 142 § 2 of the Constitution and acknowledges that, under that support, an appeal had been available against such decisions even previously. In concluzie, the issue of case law of the Constitutional Court be been available against such appear measures appear necessary. III. Concluzii of the respondent State The government considers that the Slovak Republic has thus compliment with their obligations under art. 46 alineatul (1) of the Convention. In Bratislava, 6 February 2013 Marica Pirošíková Agent of the Slovak Republic before the European Court of Human Rights

Résolution CM/ResDH(2013)73

Mihal contre la République slovaque

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

22006/07, arrêt du 5 juillet 2011, définitif le 5 octobre 2011)

(adoptée par le Comité de Ministres le 30 avril 2013,

lors de la 1169e réunion des Délégués des Ministres)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et la violation constatée

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

;

et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée

;

Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2013)111E

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Action report

Application No. 22006/07 Mihal v. Slovakia

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

(anglais seulement)

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

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