THIRD SECTION

DECISION

Application no . 71123/13 Imrich DEGRO against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 19 May 2015 as a Chamber composed of:

Josep Casadevall, President, Luis López Guerra, Ján Šikuta , Kristina Pardalos, Johannes Silvis, Valeriu Griţco , Branko Lubarda , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 6 November 2013 ,

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

1. The applicant, Mr Imrich Degro , is a Slovak national, who was born in 1941 and lives in Prešov . He was represented before the Court by Mr I. Jurčišin , a lawyer practising in Košice .

2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

A. The circumstances of the case

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

1. Action

4. On 9 June 2008 the applicant lodged an action against a private company alleging that it had sold him a car that had permanent defects. Accordingly, the applicant asked the court to order the defendant to replace the car or, alternatively, refund him the purchase price.

5. The action was granted by the Prešov District Court ( Okresný súd ) on 25 June 2010 and, following an appeal lodged by the defendant, its judgment was upheld by the Prešov Regional Court ( Krajský súd ) on 13 December 2010.

6. The order that the defendant replace the car or refund the purchase price became final and binding ( právoplatnosť ) on 12 January 2011, following service of the Regional Court ’ s judgment on the parties. After the expiry of the period allowed for voluntary compliance with the order, the order became enforceable ( vykonateľnosť ) on 16 January 2011.

2. Extraordinary review

7. The defendant then filed a petition with the Office of the Prosecutor General (“the PG”) , requesting that the latter exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie – “extraordinary appeal”).

8. At an unspecified time, presumably still in 2011, t he P G acceded to the request by challenging the contested judgments in the Supreme Court ( Najvyšší súd ).

9. In his extraordinary appeal, the PG relied on Article 243f § 1 (c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”), which permits such an appeal on the ground s that the challenged decision is based on a n incorrect assessment of points of law.

In particular, t he PG argued that the courts had mis interpreted the consumer ‑ protection rule pertaining to the case. The rule provide d that a consumer who purchased good s or a service that ha d a reparable defect ha d the same remedies available to him or her as when the good s or service ha d an irreparable defect, provided that the supplier of such good s or service had fail ed to repair the reparable defect within thirty days of being asked to do so.

According to the PG, however, that rule was not applicable in a situation where the consumer – such as the applicant in the present case – had not used the remedy related to irreparable defects but had taken possession of the repaired goods despite the fact that the repair had been carried out after the statutory thirty-day period.

10. In his observations in reply, the applicant disagreed with the interpretation of the relevant rule by the PG. It was far too restrictive and disregarded the object and purpose of the consumer protection legislation. He argued that the interpretation of that rule by the lower courts had been correct in his case: since the defendant had failed to observe the statutory thirty-day period for repairing the car, the applicant had been entitled to the remedies granted by those courts.

11. On 27 March 2013 the Supreme Court allowed the appeal by quashing the contested judgments and remitting the case to the first-instance court for re-examination, having fully endorsed the line of argument pursued by the PG. The Supreme Court ’ s judgment was served on the applicant ’ s lawyer on 6 May 2013.

12. The proceedings are now pending at first instance.

B. Relevant domestic law and practice

1. Constitution (Constitutional Law no. 460/1992 Coll., as amended)

13. Article 127 reads as follows:

“1. The Constitutional Court shall decide on 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 to be justified, it shall deliver a decision stating that the 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 that 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 [person ’ s] 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 [person ’ s] 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.

4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court ’ s decision.”

2 . Code of Civil Procedure

(a) Various provisions

14. Article 1 of the CCP lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings, with a view to ensuring fair and just protection of the rights and legitimate interests of the parties, and promoting compliance with the statutory law, fulfilment of duties and respect for the rights of fellow citizens.

15. Under Article 101 § 1, the parties to the proceedings are to contribute to the purpose of the proceedings, in particular by giving a truthful and complete description of all the relevant facts, adducing evidence, and abiding by the instructions of the court.

16. Pursuant to Article 120 § 1, the parties to the proceedings are to adduce evidence to uphold their claims.

17. Under Article 159 § 3, as soon as a matter has been resolved by force of a final and binding decision or a judgment, it may not give rise to new proceedings.

(b) Appeals on points of law

18. The relevant provisions concerning appeals on points of law ( dovolanie ) are summarised, for example, in the Court ’ s decision in Ringier Axel Springer Slovakia , a.s . v. Slovakia (no. 35090/07, §§ 65- 6 8, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, as the power to suspend the enforceability of the impugned decision is entrusted to the Supreme Court (Article 243).

(c) Extraordinary appeals

19. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq.

20. The PG has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, provided that the PG concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2).

21. An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the PG is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4).

22. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (see, for example, Ringier Axel Springer Slovakia , a.s . v. Slovakia , no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law.

23. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision becoming final and binding (Article 243g).

24. If the PG concludes, following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be lodged without stating the reasons for appeal. The reasons must then be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings will be discontinued (Article 243h §§ 3 and 4).

25. If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability must be suspended following the lodging of the extraordinary appeal with the Supreme Court (Article 243ha § 1).

The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which the suspension ceases (a) when the request is dismissed or (b) with a decision on the extraordinary appeal, unless extended by the Supreme Court, no later than one year from the lodging of the extraordinary appeal with it.

26. A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations. The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the PG (Article 243i § 1 and Article 243j).

(d) Reform of the CCP

27. The results of the ongoing work to re-codify the rules on civil procedure are summarised in a 2013 green paper ( Návrh legislatívneho zámeru rekodifikácie civilného práva procesného ) of the re-codification commission under the auspices of the Ministry of Justice.

The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the Convention, especially as regards the principles of equality of arms, legal certainty and res judicata . Extraordinary appeals are retained, albeit in a modified form, in the final text of the new Code of Civil Contentious Procedure ( Civilný sporový poriadok ) .

3 . The Constitutional Court ’ s practice concerning extraordinary appeals

28. In a decision ( uznesenie ) of 19 July 2000 in an unrelated case (no. PL. ÚS 57/99), the Constitutional Court dismissed a motion by the Supreme Court that certain provisions of the CCP concerning extraordinary appeals were contrary to the Constitution. That motion was lodged by the Supreme Court in the context of extraordinary appeal proceedings instituted by the PG concerning the review of an administrative decision on a restitution claim (see Veselá and Loyka v. Slovakia ( dec. ), no. 54811/00, 23 November 2004).

In its decision, the Constitutional Court observed, inter alia , that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also right in terms of content . A clear discrepancy between the degrees of respect shown for those two principles in an individual case could justify an interference with the former principle for the benefit of the latter. However, that would be so only in instances of a striking violation of constitutional principles of procedure, the principle of a fair trial or a denial of justice, which were not amenable to correction by other means.

According to the Constitutional Court, for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or its outcome (linked to either factual or legal assessment), and to instances where other available legal remedies had been exhausted.

Moreover, the Constitutional Court held that by virtue of the power to lodge an extraordinary appeal, the PG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision.

29. In a decision of 29 October 2003 in an unrelated case (no. IV. ÚS 197/03) concerning an individual complaint, the Constitutional Court held, inter alia , that in extraordinary appeal proceedings before the Supreme Court the PG did not have the standing of a party to the proceedings as such, but rather had a sui generis standing, similar to that of the parties. In such proceedings, the PG had no subjective interest of his or her own. Rather, the protection from unlawful final and binding decisions pursued in those proceedings served the general interest.

30. In a decision of 3 June 2008 in another unrelated case (no. IV. ÚS 180/08) concerning an individual complaint, the Constitutional Court observed, among other things, that individuals and legal entities that had petitioned the PG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the PG was under no legal duty to accommodate the request. It was within the PG ’ s entire discretion to decide whether or not to lodge an extraordinary appeal. The extraordinary appeal was an extraordinary remedy. There was no legal right to have it lodged on one ’ s behalf. A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights.

4. The Supreme Court ’ s practice concerning extraordinary appeals

31. In its decision of 27 September 2012 , in an unrelated case (no. 1 M Obdo V 2/2011), the Supreme Court rejected an extraordinary appeal by the PG concerning a property dispute. It held that an extraordinary appeal was not admissible in circumstances where it was open to the party concerned to pursue its rights directly by way of an appeal on points of law.

COMPLAINT

32. The applicant complained under Article 6 § 1 of the Convention that the quashing of the final, binding and enforceable judgment in his favour following the extraordinary appeal of the PG had been incompatible with the principle of legal certainty inherent in that provision.

THE LAW

33. The applicant complained that the quashing of the final and binding judgment in his favour had breached his rights under Article 6 § 1 of the Convention, which, in so far as relevant, provides as follows:

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

A. The parties ’ arguments

34. The applicant complained that the extraordinary appeal and the decision on it had been motivated simply by a different legal assessment of the case. He con ten ded that there was a difference between a simple disagreement with the factual or legal assessment of a case, as in his own case , and major procedural flaws, for which an extraordinary remedy – an appeal on points of law – had been available directly to the party concerned under Article 237 of the CCP.

Furthermore, with reference to the Constitutional Court ’ s case-law on the admissibility of individual complaints, the applicant argued that an individual complaint to the Constitutional Court was not a remedy that he could have used in order to comply with the requirements of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

35. In reply, the Government submitted that, in so far as the applicant might have been understood as seeking to challenge the existing statutory framework for extraordinary appeals, there was no effective remedy in Convention terms available to him at the domestic level. Therefore, the applicant should have lodged his complaint to the Court in 2011, as soon as he had learned that an extraordinary appeal had been lodged against him. As he had not done so until 2013, in the Government ’ s view the relevant part of the application was belated.

36. The Government also argued that, to the extent that the applicant wished to challenge the repercussions of the extraordinary appeal in his case in concerto , he could and should have asserted his rights before the Constitutional Court. By not having done so, the applicant had failed to respect the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.

37. The applicant disagreed and reiterated his complaint. In particular, he submitted that a complaint to the Constitutional Court would not have been an effective remedy in the specific circumstances of his case because, after the final and binding judgment in his favour had been quashed the matter had been remitted to the court of first instance, and the proceedings on the merits were still pending before the ordinary courts. Therefore, it would have been premature to have sought protection of his rights by way of a complaint under Article 127 of the Constitution.

B. The Court ’ s assessment

1. Extraordinary appeal in general

38. The Court considers that, in so far as the applicant may be understood as wishing to contest the mere existence of the concept of the extraordinary appeal , the Government ’ s inadmissibility objection does not need to be dealt with separate ly because the relevant part of the application is in any event inadmissible on the following ground s .

39. The Court reiterates that in proceedings originating in an application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of a concrete case before it. Its task is not to review domestic law and practice in abstracto , but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Accordingly, Article 34 does not provide individuals with a remedy in the nature of an actio popularis (see, for example, Klass and Others v. Germany , 6 September 1978, § 33, Series A no. 28; Slivková v. Slovakia ( dec. ), no. 32872/03, 14 December 2004; and Fruni v. Slovakia , no. 8014/07, § 133, 21 June 2011).

40. The Court notes that there is an ongoing process of reform of the procedural rules in Slovakia, with particular attention being paid to extraordinary appeals.

It is also aware of the particular sensitivity in Convention terms of the extraordinary appeal in certain specific types of proceedings in Slovakia (see López Guió v. Slovakia , no. 10280/12, §§ 66 and 108, 3 June 2014).

However, in view of the above-mentioned parameters of its jurisdiction, the Court will confine its examination of the present case to the applicant ’ s specific situation and the concrete repercussions of the impugned legislative provisions and their implementation on the applicant only.

41. Conversely, in so far as the applicant may be understood to be challenging the existing legislative framework in abstracto , the relevant part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Repercussions of the extraordinary appeal in the present case

42. As to the remainder of the application, which concerns the concrete repercussions of the extraordinary appeal in the present case, t he Court reiterates the general principles concerning the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, which are of relevance in this case, as formulated and summarised, for example, in its judgment in the case of Akdivar and Others v. Turkey (16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV).

43. Turning to the circumstances of the present case, the Court observes that an individual complaint to the Constitutional Court under Article 127 of the Constitution has been accepted by the Court as a remedy that, in general, has to be exhausted for the purposes of Article 35 § 1 of the Convention in respect of allegations of excessive length of proceedings and other alleged procedural or substantive violations of the Convention (see, for example, Andrášik and Others v. Slovakia ( dec. ), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 ‑ IX; Skur čá k v. Slovakia , no. 58708/00, §§ 29-30, 5 December 2006; Å up á k v. Slovakia ( dec. ), no. 4973/03, 23 February 2010; Karlin v. Slovakia , no. 41238/05, § 71, 28 June 2011; and many others).

44. T he Court also notes that there is no particular type of case in which it has ever accepted, as a general premise , that a complaint under Article 127 of the Constitution did not need to be exhausted for the purposes of Article 35 § 1 of the Convention . Exceptions from that requirement have been found only in cases where the alleged violation was directly concerned with the state of the law (see, recently, L.G.R. and A.P.R. v. Slovakia ( dec. ), no. 1349/12 , §§ 53 and 55, 13 May 2014 ) .

45. As regards the specific circumstances of the present case, and in so far as the application has been substantiated, the Court has found no indication that the applicant d id not have the opportunity to complain to the Constitutional Court under Article 127 of the Constitution that the principle of legal certainty had been violated as a result of the extraordinary appeal and the decision on it in his proceedings. N or has the Court found that such a complaint was bound to fail.

46. In particular, the Court observes that a complaint to the Constitutional Court could have be en directed against the Supreme Court. The applicant could have requested that, if a violation of his Convention rights were found, the Supreme Court ’ s decision be quashed and that he be granted compensation. Should he have succeeded with such claims, the quashing of the final and binding judgment in the applicant ’ s favour could have been annulled and the final and binding effect of that judgment could have been be re-established.

47. The Court is therefore of the view that, in accordance with Article 35 § 1 of the Convention, the applicant should have sought protection of the rights that he was now asserting before the Court by way of a complaint to the Constitutional Court. By not having done so, he has failed to satisfy the requirement of exhaustion of domestic remedies as regards the remainder of his application.

3. Conclusion

48. It follows that the application is inadmissible and must be rejected under Article 35 §§ 1 and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 June 2015 .

Stephen Phillips Josep Casadevall Registrar President