THIRD SECTION

DECISION

Application no . 53807/09 Nadež da HUDECOVÁ and O thers against Slovakia

The European Court of Human Rights (Third Section), sitting on 18 December 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Johannes Silvis , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 10 September 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are seven Slovak nationals who live in Zemianske Kostoľany . Their further particulars are set out in the appendix. They were represented by Mr J. Sedliak , a lawyer practising in Prievidza . The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková .

A. The circumstances of the case

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

3. The applicants were elected as members of the Zemianske Kostoľany Municipal Council for a four-year period from 1998 to 2002. The mayor prevented them from carrying out their functions and stopped paying remuneration to them for the period from 1 January 2001 to 16 December 2002. The applicants and another individual sued the municipality for unpaid remuneration totalling the equivalent of 3,591 euros (EUR).

4. As the municipality paid EUR 2,825 to them, the claimants decided to withdraw their claim in respect of that sum on 19 September 2003.

5. On 30 January 2007 the Prievidza District Court accepted in part the applicants ’ claims for remuneration, to which they considered themselves entitled as members of the municipal council. The sums awarded to the applicants ranged between EUR 98 and EUR 137, plus default interest amounting to 15.5% per year as from 11 October 2002 in respect of half of the sum awarded to each applicant, and 13% per year as from 11 January 2003 in respect of the remainder. The District Court discontinued the proceedings, at the claimants ’ request, in respect of the sum the municipality had already paid.

6. Both parties appealed. One applicant claimed an additional EUR 78 and three other applicants the equivalent of EUR 0.07 each. The applicants also challenged the first-instance court ’ s decision on costs.

7. On 9 October 2007 the Trenčín Regional Court amended the first-instance judgment by dismissing the claimants ’ claims. It held that the District Court had erred in interpreting the law. During the relevant period the applicants had not carried out their functions as members of the municipal council. They were not, therefore, entitled to remuneration for such activities, irrespective of why the situation had arisen. The judgment stated that the applicants were employed or retired. Their posts as municipal councillors related to public functions which could not be regarded as employment. Any remuneration would be due to the applicants only if they had carried out those functions. The decision to discontinue the proceedings in respect of the sum which the defendant had paid remained unaffected.

8. The Regional Court further amended the first-instance court ’ s judgment by ordering the defendant to pay the applicants ’ legal costs in respect of the District Court proceedings. It also ordered each of the claimants to pay the equivalent of approximately EUR 2 in respect of costs advanced by the State. The Regional Court ’ s judgment became final on 2 November 2007.

9. On 3 December 2007 the applicants lodged an appeal on points of law under Article 238 § 1 of the Code of Civil Procedure. They argued that the Regional Court had committed errors of law in determining their claims.

10. On 21 December 2007 they also lodged a constitutional complaint. They alleged that the Regional Court had breached their constitutional right to judicial protection. In their complaint the applicants mentioned that they had lodged an appeal on points of law.

11. On 13 March 2008 the Constitutional Court rejected the complaint. The decision stated that the applicants had at their disposal a remedy before the ordinary courts, namely an appeal on points of law under Article 238 § 1 of the Code of Civil Procedure. The court dealing with such an appeal had jurisdiction to review all the factual and legal aspects of the case. In those circumstances, it was not for the Constitutional Court to hear the appeal.

12. On 25 June 2008 the Supreme Court rejected the applicants ’ appeal on points of law as inadmissible. It established that the highest sums claimed by the individual applicants amounted to the equivalent of EUR 137. They were thus smaller than three times the statutory minimum wage (which, at the relevant time, was the equivalent of EUR 185). In such cases, an appeal on points of law was excluded pursuant to Article 238 § 5 of the Code of Civil Procedure. The Supreme Court ’ s decision was served on the applicants on 13 August 2008.

13. On 10 October 2008 the applicants lodged a second constitutional complaint, directed against the Regional Court ’ s judgment of 9 October 2007. They alleged a breach of their right to a fair hearing in that the Regional Court had committed errors of law. With reference to the Supreme Court ’ s decision, they argued that an appeal on points of law had been excluded in their case. The obstacle which resulted in the Constitutional Court rejecting their first complaint had thus been overcome.

14. On 5 February 2009 the Constitutional Court rejected the second complaint as having been lodged outside the statutory time-limit of two months. The decision stated that the applicants should have “linked” their constitutional complaint and the rationale of the Regional Court ’ s decision to the decision of the Supreme Court even if, as it seemed to be the case, they had accepted the latter ’ s conclusion. The decision was served on 11 March 2009.

B. Relevant domestic law and practice

1 . Code of Civil Procedure

15. Article 238 § 1 allows for an appeal on points of law against a judgment in which the appellate court has amended the first-instance court ’ s judgment on its merits. However, Article 238 § 5 excludes an appeal on points of law in cases where the appellate court judgment concerns the payment of sums the amount of which does not exceed three times the statutory minimum wage.

2 . Constitutional Court Act 1993

16. Under section 20(3), the Constitutional Court is bound by a request from a claimant for proceedings to be started unless the Act expressly provides otherwise.

17. Section 53(3) provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding, the date on which a measure has been notified, or the date on which notice of other interference has been given.

3. Practice of the Constitutional Court

18. In a number of decisions delivered from the second half of 2009 onwards (including, amongst others, nos. I. ÚS 184/09, II. ÚS 237/09, I. ÚS 269/09, and IV. ÚS 49/2010) the Constitutional Court held that, where a claimant lodged an appeal on points of law and, at the same time, a constitutional complaint, the latter remedy was considered admissible only after the determination of the former. Similarly, in decisions no. III. ÚS 114/2010 of 23 March 2010 and no. 290/2011 of 21 June 2011, the Constitutional Court expressed the view that, in cases where the Supreme Court rejected an appeal on points of law as being inadmissible, the statutory time-limit for lodging a constitutional complaint would also be considered to have been complied with in respect of the preceding final decision of the regional court concerned. Reference was made to the Court ’ s judgment in Zvolský and Zvolská v. the Czech Republic (no. 46129/99, §§ 51, 53 and 54, ECHR 2002 ‑ IX) .

COMPLAINTS

19. The applicants complained under Article 6 § 1 of the Convention that their claims had been dismissed and their right of access to a court breached as a result of the Constitutional Court ’ s refusal to examine their complaint. They further alleged a breach of Article 13 in that context.

THE LAW

20. The applicants complained of a breach of their right to a fair hearing by a tribunal. They relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

21. The Government objected, with reference to the reasons given in the Constitutional Court ’ s decision of 5 February 2009, that the applicants had not exhausted domestic remedies, as they had failed to lodge their constitutional complaint in accordance with the formal requirements. On this basis, the applicants ’ right of access to a court had not been breached.

22. The applicants disagreed with that argument. They maintained that they had submitted their complaint to the Constitutional Court about the Regional Court ’ s judgment within the statutory time-limit of two months.

23. The Court must first determine whether the applicants ’ complaint meets the preliminary requirements set out in Article 35 of the Convention, as amended by Protocol No. 14, which entered into force on 1 June 2010. That Protocol adds a new admissibility requirement to Article 35 which reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

25. The applicants ’ claim related to remuneration to which they considered themselves entitled on the grounds that they had been elected as members of a municipal council. As the defendant had paid the majority of the sum claimed, the proceedings were discontinued in respect of that sum at the claimants ’ request (see paragraphs 4 and 5 above). The outstanding sums in dispute for the individual applicants ranged between EUR 98 and EUR 137, plus default interest.

26. In its judgment, the Regional Court concluded that the applicants were not entitled to remuneration as during the relevant period they had not carried out their functions. The documents submitted further indicate that such remuneration was not their principal source of income (see paragraph 7 above). Furthermore, the Regional Court amended the first-instance court ’ s judgment by ordering the defendant to pay the costs of the proceedings. The applicants were only ordered to reimburse the State advanced expenses amounting to approximately EUR 2 each.

27. The sums in dispute were lower than the monthly minimum wage in Slovakia at the relevant time. The Supreme Court had no power to deal with the case as Slovakian law excluded appeals on points of law in cases which concerned the payment of sums the amount of which did not exceed three times the statutory minimum wage (see paragraph 15 above). Thus what was at stake for the applicants was not considered to be important enough from a domestic law point of view to justify a review of the appeal court ’ s decision by the court of the highest instance. The Court reiterates in this connection that there is no right under Article 6 § 1 of the Convention as such to have one ’ s case examined on appeal or an appeal on points of law (see, for example, Stavebná spoločnosť TATRY Poprad , s.r.o . v. Slovakia , no. 7261/06 , § 35, 3 May 2011).

28. In view of the foregoing, the Court concludes that the applicants have not suffered a significant disadvantage as a result of the dismissal of their outstanding claims.

29. The second element set out in Article 35 § 3 (b) compels the Court to examine the case in any event, if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the respondent State ’ s obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see also Zwinkels v. the Netherlands ( dec .), no. 16593/10, § 28, 9 October 2012).

30. The applicants complained that the Regional Court ’ s decision to dismiss their claims for the outstanding sums had been arbitrary and that the Constitutional Court had not examined their complaint. As regards the first aspect of the case, the Court reiterates that it has only limited power to examine errors of fact or law allegedly committed by domestic courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). As regards the second aspect, the Court notes that it found a breach of Article 6 § 1 of the Convention in a similar case (see Stavebná spoločnosÅ¥ TATRY Poprad , s.r.o . , cited above, §§ 38-46) and that in mid-2009, the Constitutional Court changed its practice, with reference to the Court ’ s case-law, to prevent similar situations arising (see paragraph 18 above).

31. In the circumstances described above, the Court concludes that respect for human rights does not require an examination of this case.

32. Finally, Article 35 § 3 (b) does not allow an application to be rejected on the ground of “no significant disadvantage” if the case has not been duly considered by a domestic tribunal. The purpose of this provision is to ensure that every case receives a judicial examination, whether at national or European level (see Korolev , cited above).

33. In the Court ’ s view, the facts of the present case taken as a whole disclose no denial of justice at the domestic level, since the merits of the applicants ’ claims were first considered by the District Court and later by the Regional Court .

34. The fact that their subsequent complaint was not subject to a decision on the merits by the Constitutional Court, which was the court of last resort at national level, does not constitute an obstacle to the application of the admissibility requirement under Article 35 § 3 (b) in the circumstances of the present case (see also Explanatory Report on Protocol No. 14, CETS No. 194, § 39; Zwinkels , cited above, § 32; and Uhl v. the Czech Republic ( dec .), no. 1848/12, § 29, 25 September 2012 ).

35. It follows that the applicants ’ complaint under Article 6 § 1 must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention, as amended by Protocol No. 14.

36. T he applicants further complained that they had no effective remedy at their disposal, as in its two decisions, the Constitutional Court had refused to hear their complaint against the Regional Court judgment of 9 October 2007. They alleged a breach of Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

37. The Government maintained that the applicants had at their disposal an effective domestic remedy, namely a complaint to the Constitutional Court , which they had nevertheless failed to use in accordance with the requisite formalities.

38. In view of the above conclusion about their complaint under Article 6 § 1, the Court finds that the applicants do not have an “arguable claim” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

39. It follows that this complaint must be rejected as being manifestly ill-founded 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

Appendix

List of the applicants

1. Ms Nadežda Hudecová , born in 1948.

2. Mr Jozef Kováč , born in 1954.

3. Ms Magdaléna Kováčová , born in 1955.

4. Ms Darina Hudecová , born in 1959.

5. Mr Bohumír Matejovič , born in 1952.

6. Mr Marián Oršula , born in 1954.

7. Ms Terézia Pagáčová , born in 1950.