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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
- The
applicant, Mr Tibor Šafárik, is a Slovak
national who was born in 1942 and lives in Košice.
- The
Government of the Slovak Republic (“the Government”)
were represented by their Agent, Ms M.
Pirošíková.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Background
- The
applicant, a practising lawyer, is a member of the Bar of the Slovak
Republic (Slovenská advokátska
komora).
- 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.
- The action was aimed, among other things, at obtaining
the equivalent of some 241,000 euros (EUR) in damages.
- On
10 November 2005 the action was dismissed and this decision became
final and binding.
2. Remuneration claim
- 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.
- 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).
- On
20 November 2006 the District Court dismissed the applicant’s
claim except for an amount equivalent to some EUR 185.
- 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.
- 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.
- 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.
- 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.
- 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
- 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).
- 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.
- 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.
- 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)
- 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)
- 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.”
- 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.”
- 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.”
- 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
- 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.
- In a judgment of 30 January 2007, file no. 2 M Cdo
3/2006, the Supreme Court (Najvyšší
súd) ruled on an extraordinary appeal on points of
law (mimoriadne dovolanie) lodged by the Prosecutor General
against the lower courts’ ruling on costs in an unrelated
matter concerning a claim for indemnity in respect of reduced
capacity to work (sťaZenie spoločenského
uplatnenia) due to damage to health caused by a work-related
injury.
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
- 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 arbitrarily
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.
- 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
- 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.”
- 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.
- 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.
- 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.
- 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).
- 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;”
- In
the present case, the applicant, who is a practising lawyer, was
appointed by a court to represent an indigent client. The applicant’s
subsequent claim for remuneration was only partly successful, the
remainder having been dismissed on the ground that the applicant in
fact did not have the right he was claiming to have.
- The
Court observes specifically that the applicant’s reimbursement
claim was examined by the ordinary courts at two levels of
jurisdiction and then also by the Constitutional Court and that the
domestic courts congruently found and supported by reasons based on
facts and law, which of themselves do not appear manifestly
arbitrary, irregular or otherwise wrong, that the underlying libel
action was a matter without pecuniary basis for the purposes of
calculating the legal fees involved.
- The
Court also observes that, in so far as the applicant argued that
there was divergent case-law on the subject at the domestic level and
that lawyers appointed by choice were treated more favourably than
him as having been appointed by a court, the argument has remained
wholly unsubstantiated.
- 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.
- Therefore,
and even assuming that facts of the case fall ratione materiae
within the ambit of the Articles invoked (see, mutatis mutandis,
Mihal v. Slovakia (dec.), nos. 23360/08 and 31303/08, 28 June
2011), the Court finds that the material in its possession does not
disclose any appearance of a violation of the rights set out these
Articles (see, in particular, Lestourneaud v. France, no.
29376/95, Commission decision of 12 April 1996).
It
follows that the relevant part of the application is in any event
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
B. Remaining complaint
- The
applicant argued that the findings and conclusions of the domestic
courts and, in particular, the Constitutional Court were incompatible
with his rights under Article 6 § 1 of the Convention.
- To
the extent that this part of the application has been substantiated,
the Court has found no indication of any procedural unfairness within
the meaning of Article 6 § 1 of the Convention (see, among many
other authorities, García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I).
- 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
