THIRD SECTION

DECISION

Application no . 50645/08 LAWYER PARTNERS a . s . and 23 other applications against Slovakia

The European Court of Human Rights ( Third Section), sitting on 25 September 2012 as a Chamber composed of:

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

Having regard to the applications listed in the appendix,

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, Lawyer Partners a.s., is a private limited company with its registered office in Bratislava . It was represented before the Court by Mr J. Fridrich, a lawyer practising in Bratislava . Further details concerning the present twenty-four applications lodged by the applicant company are set out in the appendix.

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

A. The circumstances of the cases

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

1. Background information

3. On 15 July 2005 the applicant company concluded a contract with Slovak Radio, a public-law institution. Under that contract, taken together with two additional ones concluded on 20 September 2005 and 27 January 2006, the applicant company acquired the right, in exchange for compensation to Slovak Radio, to recover unpaid broadcast receiver licences in 355,917 cases, plus additional sums for default on those payments.

4. The applicant company sued the individuals and legal persons who had refused to pay the debt which it had acquired the right to recover. The applicant company prepared individual actions, with a request for payment notices to be issued against the debtors. Given the number of defendants concerned, the actions were generated by computer software and recorded on Digital Versatile Discs (DVD). In the course of 2006 the DVDs were sent to the district courts concerned, accompanied by an explanatory letter.

5. The courts refused to register the actions, indicating that they lacked the equipment to receive and process submissions made and signed electronically.

6. In view of the differing practice of the Constitutional Court in respect of the applicant ’ s ensuing complaints, the Court found, on 16 June 2009, a breach of the applicant ’ s right of access to court in respect of cases where the applicant had been unable to obtain redress at the domestic level (see Lawyer Partners a.s. v. Slovakia , nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, ECHR 2009).

7. Subsequently the applicant company brought proceedings against the State, in which it claimed compensation for damage resulting from the failure to register the actions submitted electronically. In a submission of 16 April 2012 the applicant company stated that the courts dealing with the claims for damages had asked it to pay prohibitively high deposits in respect of costs and expenses, in accordance with an amendment to the Code of Civil Procedure enacted which took effect on 1 January 2012.

2. The circumstances of the present cases

(a) Proceedings before the Constitutional Court

8. In the present cases the applicant lodged 58,763 actions with twenty ‑ one different district courts in March, July and October 2006. The actions concerned unpaid broadcast receiver licences and they were signed electronically and filed on DVDs. The district courts concerned were unable to register and proceed with the actions as they lacked the necessary equipment. The applicant sought redress before the Constitutional Court .

9. The Constitutional Court delivered twenty-four judgments in which it found that the district courts concerned had breached the applicant ’ s right of access to court as guaranteed by Article 6 § 1 of the Convention, in that they had refused to register its actions. It ordered the courts involved (with the exception of the Brezno District Court, which had expressed its readiness to do so in the meantime) to proceed with such actions in accordance with the relevant provisions of the Code of Civil Procedure. The judgments explicitly stated that the actions of the applicant should have legal effect from the time they were first submitted to the courts concerned, regardless of any technical impediments preventing that date from being automatically generated within the electronic registration system.

10. The Constitutional Court further ordered the district courts involved to reimburse the applicant company ’ s costs in eighteen of the twenty-four judgments. In the remaining six judgments the Constitutional Court found that it had already ruled in a number of cases lodged by the applicant that the courts had a duty to process submissions made electronically. That fact had to be taken into account when deciding on the applicant ’ s claim for costs.

11. The Constitutional Court held that the above findings sufficiently redressed the situation complained of. With reference to the Court ’ s practice under Article 41 of the Convention it therefore dismissed the applicant ’ s claims for just satisfaction, which amounted to 332 euros (EUR) in respect of each individual action registered on the DVDs. Further details concerning the actions and the Constitutional Court ’ s judgments are set out in the appendix.

(b) S ubsequent developments

12. In the period subsequent to the Constitutional Court ’ s judgments in the present cases, the ordinary courts proceeded or attempted to proceed with the applicant ’ s cases as follows.

13. In proceedings before the Prievidza District Court the applicant company first indicated that it would provide a reserve copy of the DVDs. That proposal was accepted by the District Court. In a letter of 23 September 2009 the applicant informed the court that it would not submit the DVDs as they had been submitted to the Court in the context of its application. The applicant sent the same reply to ten other district courts which had asked it to submit the DVDs with its claims. As a result, those courts have not proceeded with the cases.

14. In the other cases the district courts concerned registered the actions while considering them as having been lodged on the corresponding dates in 2006. They did so on the basis of the DVDs which they had obtained either from the applicant or the Constitutional Court , or by processing their own copy of the applicant ’ s original submission in electronic form. Several courts determined the merits of the applicant ’ s claims. Five other district courts abandoned proceedings as the applicant had not paid the court fees.

B. Relevant domestic law and practice

1. The Constitution

15. Article 127 provides:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. When the Constitutional Court finds that a complaint i s justified, it shall deliver a decision stating that a person ’ s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating 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 existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.

4. The Constitutional Court ’ s decision does not affect the liability for damage or other harm of those who have breached a person ’ s rights or freedoms set out in paragraph 1.”

2. The Constitutional Court Act 1993

16. Section 56(3) provides that, when a violation of fundamental rights or freedoms is found, the Constitutional Court may order the authority liable for such a violation to proceed in accordance with the relevant rules. It may also return the case to the authority concerned for further proceedings, prohibit the continuation of the violation or, as the case may be, order the restoration of the situation existing prior to the violation.

17. Under section 56(4), the Constitutional Court may grant adequate financial satisfaction to a person whose rights or freedoms were breached.

18. Pursuant to section 56 (6), when the Constitutional Court quashes a decision, interference or other measures and returns the case to the authority concerned, the latter is obliged to re-examine the case and decide on it. The legal opinion expressed by the Constitutional Court is thereby binding on that authority.

3. The State Liability Act 2003 (Law no. 514/2003 Coll., as amended)

19. Under the Act the State bears liability for damage caused by public authorities, inter alia by wrongful official actions (section 3(1)(d)).

20. Liability for damage caused by wrongful official action comprises, inter alia , a public authority ’ s failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal persons (section 9(1)).

21. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non ‑ pecuniary damage.

COMPLAINT

22. The applicant company complained under Article 6 § 1 of the Convention about a breach of its right of access to court. It argued that it had not obtained appropriate redress before the Constitutional Court .

THE LAW

23. The applicant company alleged that its right of access to court had been breached. It relied on Article 6 § 1 of the Convention which in its relevant part provides:

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

24. The Government disagreed with the applicant ’ s argument.

1. Joinder of the applications

25. The Court notes that the twenty-four applications under examination concern the same issue. It is therefore appropriate to join them in application of Rule 42 § 1 of the Rules of Court.

2. As regards application no. 50645/08

26. The Court notes that, as regards application no. 50645/08, the Constitutional Court ’ s decision was delivered on 20 December 2007 and served on 13 February 2008. That application was introduced on 6 October 2008, so the applicant company had failed to respect the six ‑ month time-limit laid down in Article 35 § 1 of the Convention.

27. It follows that this application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. As regards the remaining applications

28. The Government argued that the applicant company had lost its status as a victim. In particular, following the Constitutional Court ’ s judgments, the applicant company had had a real opportunity to pursue its claims before ordinary courts which were obliged to deal with them as having been introduced in 2006. None of the proceedings brought by the applicant company had ended on the ground that the applicant company ’ s claims had become statute-barred in the period following the original introduction of the claims on DVDs in 2006. The Government saw no practical impediments preventing the applicant from pursuing those claims.

29. The applicant company maintained that the redress obtained at the domestic level was inappropriate. It therefore still was a victim within the meaning of Article 34 of the Convention.

30. In particular, the applicant company argued that, following the Constitutional Court ’ s judgments, it was technically and legally impossible to have its claims registered as having been lodged in 2006, as a result of which its claims had become statute-barred.

31. The applicant company further argued that under the relevant law the courts were no longer entitled to require the payment of court fees in respect of its actions. It also submitted that, due to a change in the situation, it had lost interest in pursuing some of the actions. The applicant company referred to situations where the right to claim the broadcast receiver licence fees had lapsed, where the defendants had died or, in case of legal persons, ceased to exist, where it was no longer possible to establish contacts with them, where they were no longer solvable or where the actions had been generated by ordinary courts on the basis of materials at their disposal or submitted by the Constitutional Court.

32. Finally, t he applicant company maintained that it could not have submitted the original DVDs to the ordinary courts as they had first been joined to its constitutional complaints and, subsequently, they were sent to the Court in the context of the present applications. With reference to an expert opinion the applicant company argued that it was, in practice and legally, impossible to make identical copies of the original DVDs with their original time stamp.

33. The applicant company concluded that it had sustained harm due to the fact that its actions were not dealt with for nearly two years because of the courts ’ refusal to register them in 2006. It had not obtained appropriate redress at the domestic level in that respect.

34. The Court reiterates that an applicant ’ s status as a “victim” within the meaning of Article 34 of the Convention depends on whether the domestic authorities have acknowledged, either expressly or in substance, an alleged infringement of the Convention and, if necessary, provided appropriate redress. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Cocchiarella v. Italy [GC], no. 4886/01, § 71, ECHR 2006-V).

35. In its judgment of 16 June 2009 on fifteen different cases of the present applicant company (cited above, § 6) the Court has held that, in the event of a violation of Article 6 of the Convention, the applicant company should as far as possible be put in the position he or she would have been in had the requirements of this provision not been disregarded. The Court expressed the view that most appropriate form of redress in cases where an applicant has not had access to a tribunal because of an unjustified refusal to register its actions, would be to register the original submissions as if they had been made on the date when the applicant had submitted them to the courts concerned for the first time and to deal with them in keeping with all the requirements of a fair trial.

36. In the present cases the Constitutional Court found a breach of the applicant company ’ s right of access to court and ordered the district courts concerned to proceed with the actions in accordance with the relevant provisions of the Code of Civil Procedure. The judgments explicitly stated that the actions of the applicant company should have legal effect as from the moment when they had first been submitted to the courts concerned, regardless of any technical impediments preventing that date from being automatically generated within the electronic registration system. The Constitutional Court further ordered the district courts involved to reimburse the applicant company ’ s costs in eighteen of the twenty-four judgments.

37. As to the applicant company ’ s arguments, the Court first notes that the documents available indicate that in a number of cases the ordinary courts dealt with the actions in compliance with the Constitutional Court ’ s order, and they allowed the applicant company ’ s claims. There is no indication that any claim had been rejected on the ground that it had become statute-barred in the period subsequent to its first introduction in 2006.

38. Secondly, the form for submitting an application and other Court documents for applicants expressly indicates that no original documents should be submitted to the Court for the purpose of an individual application under Article 34 of the Convention. The applicant company included the original DVDs in its submissions to the Court despite that instruction. It has not asked the Court for those DVDs to be returned to it. Its argument that it has been unable to submit them to the ordinary courts cannot therefore be upheld.

39. The third group of the applicant company ’ s arguments relies on facts and events which stem from, or become evident in, the proceedings subsequent to the constitutional judgments. To the extent that the applicant company considers that it has suffered harm on that account, the Court notes that it has been open to it seek redress at the domestic level. Article 127 § 4 provides that the Constitutional Court ’ s findings do not affect the liability for damage or other harm caused to those who have breached a person ’ s rights or freedoms as set out in paragraph 1 of that Article. It is particularly relevant in this context that in fifteen other applications in which the Court has found a breach of Article 6 and made an award under Article 41 of the Convention, the applicant had initiated proceedings under the State Liability Act 2003 claiming compensation (see paragraphs 6 and 7 above).

40. In view of the above, the Court concurs with the Government that the applicant company can no longer claim to be a victim of a breach of its right of access to court under Article 6 § 1 of the Convention.

41. It follows that the remaining applications are 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

Decides to join the applications;

Declares the applications inadmissible.

Santiago Quesada Josep Casadevall Registrar President

Appendix

Application

No.

Date of introduction

District Court

involved

Date of the actions

Number

of actions

Constitutional Court ’ s decision

File number

Date of adoption

50645/08

06/10/2008

ÄŒadca

24/07/2006

388III. ÚS 7/07

20/12/2007

50748/08

06/10/2008

Veľký Krtíš

24/07/2006

409II. ÚS 148/08

24/06/2008

50750/08

06/10/2008

Topoľčany

19/10/2006

587III. ÚS 150/08

24/06/2008

50754/08

06/10/2008

Košice I

24/07/2006

737II. ÚS 93/08

24/06/2008

50760/08

06/10/2008

Považská Bystrica

24/07/2006

500II. ÚS 146/08

24/06/2008

50761/08

06/10/2008

Prievidza

24/07/2006

603II. ÚS 149/08

24/06/2008

50762/08

06/10/2008

Topoľčany

24/07/2006

398II. ÚS 147/08

24/06/2008

50766/08

06/10/2008

Lučenec

24/07/2006

605II. ÚS 145/08

24/06/2008

50768/08

06/10/2008

Zvolen

19/10/2006

671II. ÚS 151/08

24/06/2008

29132/09

14/05/2009

Brezno

24/07/2006

205II. ÚS 64/08

20/11/2008

29141/09

14/05/2009

Kežmarok

11/10/2006

467IV. ÚS 40/08

27/11/2008

29161/09

14/05/2009

Vranov nad Topľou

24/07/2006

486IV. ÚS 33/08

14/10/2008

29172/09

14/05/2009

Ružomberok

11/10/2006

252IV. ÚS 34/08

14/10/2008

29175/09

14/05/2009

Trenčín

24/07/2006

1,133

II. ÚS 67/08

14/10/2008

29182/09

14/05/2009

Liptovský Mikuláš

24/07/2006

529I. ÚS 288/08

27/11/2008

29196/09

14/05/2009

Spišská Nová Ves

24/07/2006

590I. ÚS 289/08

27/11/2008

29201/09

14/05/2009

Trnava

24/07/2006

1,047

II. ÚS 68/08

14/10/2008

29208/09

14/05/2009

Poprad

19/10/2006

590IV. ÚS 36/08

14/10/2008

29322/09

14/05/2009

Zvolen

24/07/2006

696I. ÚS 291/08

27/11/2008

29333/09

14/05/2009

Nitra

24/07/2006

974II. ÚS 65/08

14/10/2008

29340/09

14/05/2009

Prievidza

19/10/2006

1,289

IV. ÚS 35/08

14/10/2008

29370/09

14/05/2009

Bardejov

24/07/2006

362IV. ÚS 39/08

27/11/2008

29377/09

14/05/2009

Dolný Kubín

24/07/2006

508I. ÚS 290/08

27/11/2008

31249/09

29/05/2009

Banská Bystrica

24/07/2006

989II. ÚS 66/08

14/10/2008