THIRD SECTION

CASE OF DRAFT - OVA A.S. v. SLOVAKIA

(Application no. 72493/10)

JUDGMENT

STRASBOURG

9 June 2015

FINAL

09/09/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of D RAFT - O VA a . s . v. Slovakia ,

The European Court of Human Rights ( Third Section ), sitting 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 deliberated in private on 19 May 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 72493/10) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2010 by a private joint-stock company established under the laws of the Czech Republic, DRAFT - OVA a.s. (“the applicant company”).

2 . The applicant company was represented by Advokátska kancelária JUDr. Radomír Bžán , s.r. o. , a law firm with its registered office in Bratislava .

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

3 . The applicant alleged, in particular, that the quashing of a final and binding judgment in its favour following an extraordinary appeal on points of law lodged by the Prosecutor G eneral at the request of the defendant, an entity in which the State was a major shareholder , had breached its rights under Articles 6 § 1 of the Convention and Ar ticle 1 of Protocol No. 1 .

4 . On 11 June 2013 the application was communicated to the Government . At the same time, the Government of the Czech Republic were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), in response to which they submitted that they had no intention of so doing.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant company was established in 1993 and has its registered office in Opava (the Czech Republic) .

A. Background

6 . The present application concerns claims against a Slovak gas company (“the defendant”) dating back to 1998 when the defendant was still a State ‑ owned enterprise and when its director and statutory representative was Mr J.D. It came to light subsequently that, at the time, Mr J.D. had issued a number of promissory notes ( vlastná z menka ) in the name of the defendant for large amounts of money (see Michaela Huserov á , Administrator in Bankruptcy of Union b anka, a.s. in liquidation and Stroden Management Limited v. Slovakia (dec.), no. 760/04, 9 November 2010) .

7 . Prior to becoming the statutory repr esentative of the defendant, Mr J.D. had served a term as Minister of Industry and two terms as Minister of the Economy. In 1999 he was murdered in circumstances that are yet to be clarified.

8 . The promissory notes have always been contested by the defendant. Nevertheless, they have been negotiated among many parties and have given rise to a deal of litigation, including the proceedings in the present case. They have also attracted extensive media attention.

9 . I n 2001, the defendant was transformed into a joint ‑ stock company . It then underwent privatisation and 49% of its shares were sold to private foreign investors.

10 . The contract for the privatisation of the defendant contains a clause pursuant to which the State agreed to indemnify the investors for any loss they might incur on account of the promissory notes signed by Mr J.D.

11 . O f relevance for the present application is the fact that at the time, 51 % of the defendant ’ s shares were held by the State, while the remaining 49 % were held by a private party.

At present, the defendant is wholly owned by the State.

B. Action

12 . On 23 December 2005 the applicant company instituted proceedings against the defendant before the Bratislava V District Court ( Okresný súd ). Then and at all stages of the proceedings , it was represented by a lawyer.

The applicant company relied on a promissory note for the payment of the equivalent of some 11,350,000 euros (EUR) signed by Mr J.D. in the name of the defendant on 29 September 1998 . The date of issue indicated on the promissory note was 1 October 1998.

On the basis of that note and four endorsements on it, t he applicant company claimed to be the holder of the note and sought a judicial order for the defendant to pay th e above- mentioned amount with interest and some additional associated amounts.

13 . On 17 February 2006, in summary proceedings, the District Court issued a payment order ( zmenkový platobný rozkaz ) for the amounts claimed. T he defendant protest ed ( námietky ) and appeal ed ( odvolanie ), but the order was upheld in ordinary proceedings by, respectively, the District Court on 21 May 2007 and the Bratislava Regional Court ( Krajský súd ) on 28 April 2009.

14 . Both the District Court and the Regional Court held hearings at which the legal representatives of the parties and two witnesses were heard and documentary evidence as adduced by the parties was examined .

15 . The courts concluded that the promissory note had been validly issued in the name of the defendant by Mr J.D. ; that, at the time of issue , the note had been incomplete as it had had no maturity date ; and that its maturity date, 1 November 2005, had been added to it later.

The courts dismissed the defendant ’ s claim s that the note had been issued for payment “at sight”, that it had according ly been intended to be presented for payment within a year of its date of issue (section 34 of the Bills of Exchange, Promissory Notes and Cheques Act (Law no. 191/1950 Coll. – Zákon zmenkový a šekový ) – “the Act”); and that, in the absence of such presentation, it had been statute - barred three years after its maturity date (section 70 of the Act).

The courts rather considered the note to be a blank promissory note, in which case t he missing maturity date would be added later under an agreement entered into for that purpose , as envisaged by section 10 of the Act . Under that provision, in the circumstances, the only argument that the defendant could raise against the applicant company was that it had acquired the note in bad faith or that, in acquiring it , the applicant company had been guilty of gross negligence.

As regards the adding of the maturity date to the promissory note, the courts heard as a witness one of the previous holders of the note – A., who at the same time was an executive of another of the note ’ s previous holders. He submitted before the c ourt that he had had an oral understanding with Mr J.D. about adding the maturity date to the note and that the date had accordingly been added to the note by another previous holder of the note.

The courts further noted that the contract under which the applicant company had acquired the promissory note contained a declaration by the previous holder that it had already acquired the note with the maturity date , and that the maturity date had been added to the note in compliance with the arrangements previously made.

In the courts ’ assessment, the applicant company had acted in reliance on th o se assurances and it was up t o the defendant to disprove them, which it had failed to do . It had equally failed to establish the other defences it had sought to rel y on.

16 . As n o ordinary appeal lay against the appeal court ’ s judgment, following its service on the parties, the matter was resolved with the force of a final and binding decision ( právoplatnos ť ) on 8 June 2009.

C . Extraordinary review

17 . On 5 June 200 9 the defendant filed a petition with the Office of the Prosecutor General (“the PG”) requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie – “extraordinary appeal”).

18 . The PG decided to accede to the request and on 10 June 200 9 he challenged the contested judgments in the Supreme Court ( Najvyšší súd ).

The PG relied on Article 243h § 3 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”) (see paragraph 49 below), which provides that reasons for an extraordinary appeal may be subm itted within sixty days of the introduction of the extraordinary appeal if there is the risk of considerable economic damage or other irreparable consequence s .

In that respect, the PG argued that the contested judgments were directly enforceable and that the volume of the case file was extensive. The reasons for appealing would therefore be submitted later.

19 . At the same time, the PG requested that the enforceability of the contested judgments be suspended. Pursuant to Article 234ha of the CCP (see paragraph 50 below), by virtue of this request, the enforceability was immediately and automatically suspended, pending the Supreme Court ’ s decision to dismiss the request or, in the absence of such a decision, pending the outcome of the proceedings before the Supreme Court on the extraordinary appeal.

In support of his request, the PG submitted that the defendant, in which the State was a major shareholder , had been ordered to pay a large sum of money. If that sum were to be paid and if the Supreme Court were to allow the extraordinary appeal, it would give rise to a claim for repayment of unjustified enrichment in an equally significant amount. Such a claim would not be secured and its settlement would be uncertain and risky.

20 . In the absence of a decision on the part of the Supreme Court to dismiss the PG ’ s request, the enforceability of the payment order in the applicant company ’ s favour remained suspended until the PG ’ s extraordinary appeal had been decided on its merits (see below).

21 . Meanwhile, on 23 July 2009, the PG had submitted the reasons for his appeal.

22 . The main argument was that the courts had erred in the application of the law (especially section 10 of the Act) to the facts that were decisive for assessing whether the applicant company had acted with gross negligence in acquiring the promissory note , in particular in relation to adding the maturity date.

In the PG ’ s view , it had been grossly negligent of the applicant company to have contented itself with the declarations of the seller as to the existence of and compliance with the arrangements for adding the maturity date to the note (see paragraph 15 above in fine ) without pursuing any proper enquiries. This was all the more so as it was generally known that the defendant had contested the notorious “promissory notes of Mr J.D.”, and that in view of the sum of money concerned the note in the present case was clearly out with the ordinary course of business . Moreover, it was obvious how little the applicant company had paid to acquire the promissory note and the payment conditions were peculiar .

On the latter points, the PG submitted that the price payable for the promissory note by the applicant company was no more than 50 % of its nominal value and that 98.8 % of that price was payable only on collection of payment under the note. Th o se and other elements indicated that the transactions in respect of the note had been speculative in nature .

In the PG ’ s view, in those circumstances, the applicant company had been grossly negligent ; the defendant was entitled to claim that there had been no valid arrangement for adding the maturity date to the promissory note ; and it was up to the applicant company to show that such an arrangement had existed and had been complied with, failing which the note was payable “at sight , ” and any claims based on it were statute-barred.

In the PG ’ s submi ssion , requiring the defendant to show that no arrangement f or adding the maturity date to the note had existed would amount to a probatio diabolica because the non-existence of a fact was not capable of being proven.

23 . On 4 September 2009 the applicant company submitted its observations in reply to the extraordinary appeal and to the defendant ’ s petition for that remedy. It disputed the PG ’ s arguments and submitted, inter alia , that the burden of proof in respect of the allegedly unlawful alteration of the note after its issuance rested solely with the defendant . T he applicant company had been under no duty to enquire into the existence of and compliance with any arrangement for adding the maturity date to the note. In that respect, it emphasised that in judicial proceedings concerning promissory notes , the burden of proof in principle always rested with the issuer , and only with the issuer.

24 . On 12 May 201 0 the Supreme Court , sitting in chambers, allowed the appeal, quashed the contested judgments and remitted the matter to the District Court for a new determination. It did so having in principle accepted the line of argument advanced by the PG and having noted, in particular, that the testimony of A. as regards the alleged understanding with Mr J.D. about the adding of the maturity date to the note had been contradicted by other evidence and was as such implausible.

25 . The Supreme Court ’ s judgment was served on the applicant comp any ’ s lawyer on 7 July 2010. As a result, the case was remitted to the first instance . T he further course of the proceedings before the ordinary courts is described in paragraphs 31 et seq . below.

D . Constitutional complaint

26 . O n 6 September 2010 the applicant company challenge d the Supreme Court ’ s judgment of 12 May 2010 i n the Constitutional Court ( Ústavný súd ) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

The applicant company relied , inter alia , on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, invoking its right s to a fair trial, in particular access to a court , equality of arms, protection of property, as well as the principles of legal certainty and rule of law.

The applicant company argued that there was a systemic problem as the principle of the parties ’ procedural equality had been breached by the mere existence of the extraordinary appeal proceedings . T he dispute over the promissory note was of a commercial and as such private-law nature. Any room for interference by the State with judicial proceedings and final and binding decisions in such a dispute was therefore particularly narrow. The position in the present case was aggravated by the fact that the PG ’ s extraordinary appeal favoured the defendant, an entity in which the State had a majority interest.

In addition, the applicant company contested the application of the existing rules in its specific case, since the PG had interfered by extraordinary means with a final and binding judgment in the State ’ s favour. The applicant company pointed out the particular circumstances of the case, including the fact that the two lower levels of jurisdiction had determined the matter unanimously, that they had already dealt with the arguments that were subsequently reiterated by the PG, and that the re ‑ assessment of the case had involved not only questions of law, but also questions of fact. In conclusion, the interference with the final and binding judgment in favour of the applicant company had been without any acceptable justification.

Furthermore, the applicant company noted that the Government of the Slovak Republic had previously publically declared that what had been termed “[Mr J.D.] ’ s promissory notes ” would never be honoured. In view of that declaration as well as the Government ’ s contractual obligation to indemnify investors in the defendant for any losses that they might incur on account of the promissory notes s igned by Mr J.D (see paragraph 10 above), the extraordinary appeal had not serve d any greater good as envisaged by the applicable statute , but had rather served the Government ’ s political and economic interests. As the Supreme Court had not clearly distanced itself from th o se considerations, it could not be regarded as independent and impartial.

Lastly, as the quashed judgments had been final and binding, they had constituted possessions and their quashing was an interference with those possessions, in violation of Article 1 of Protocol No. 1.

27 . On 11 November 2010 the applicant company added further reasons to its constitutional complaint, relying on the Report on the Independence of the Judicial System adopted by the Venice Commission at its 82 nd plenary session on 12 and 13 March 2010, with particular reference to the revision of judges ’ decisions outside the appeals procedures (see paragraphs 58 et seq . below).

In addition, the applicant company pointed out the circumstances of the adoption of the amendment (Law no. 484/2008 Coll.) to the CCP allowing the reasons for extraordinary appeals to be added at a later date , and for such appeals to have “ automatic suspensive effect ” . In particular, the amendment had been adopted with retroactive effect and with the aim of reversing the outcome of a specific , albeit unrelated , dispute.

28 . On 26 April 2011 the Supreme Court, as the defendant t o the complaint, submitted its observations in reply and, on 12 January 2012, the applicant company submitted a rejoinder.

29 . On 19 January 2012 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.

I t observed that the statutory framework for the examination of individual complaints did not allow it to examine the compliance of statutes with the Constitution and international instruments as such. It could therefore only review the application of the existing statutory rules in the applicant company ’ s individual case.

It also observed that the statutory provisions on extraordinary appeals were an integral part of the legal system of Slovakia and that there was a presumption of their constitutionality. It further noted that the PG had no power to lodge such an appeal of his or her own motion, but could only do so following the filing of a petition by those concerned , on grounds strictly defined by the CCP and with in the time-limit prescribed by it.

In the present case, the PG ’ s extraordinary appeal had been prompted by a petition by the defendant and it had relied on appropriate grounds.

In that regard, the Constitution al Court noted that the extraordinary appeal was concerned with the distribution of the burden of proof, which was a preliminary but crucial matter in the case at hand. O n the facts , it was determinative for its outcome in that, in the event of a failure to establish the given elements of the case, the party upon which the burden of proof rested would automatically lose it.

The Constitutional Court also noted the Supreme Court ’ s finding that the rigidity of the lower courts ’ interpretation of the statutory premise that the burden of proof in this type of case rested on the issuer of the promissory note had been arbitrary and one-sided , and that its effects had suppressed the object and purpose of the CCP and the Act.

Thus, in the Constitutional Court ’ s assessment, the extraordinary appeal had not been motivated merely by a differing legal view but rather by an error of procedure . It thus satisfied the requirements of the Convention for an acceptable interference with an adjudicated matter.

As to the merits of the case , the Constitutional Court not ed that it was no t a court of further appeal against decisions of the ordinary courts. It found the reasoning of the Supreme Court congruous and convincing , and found no constitutionally relevant unfairness, arbitrariness or irregularity in the proceedings.

Furthermore, the Constitutional Court drew a distinction between the PG, who had lodged the extraordinary appeal, and the Supreme Court, which had decided on it, finding no grounds to doubt the Supreme Court ’ s independence and impartiality. I n any event, it had been open to the applicant company to challenge any of the Supreme Court ’ s judges involved in the case for bias, which it had not done.

As to equality of arms, the Constitutional Court noted that the applicant company had had – and had amply used – the opportunity to present its views as regards the extraordinary appeal , and found that the applicable guarantees had been respected.

As regards the applicant company ’ s property claim, the Constitutional Court reiterated its established case-law, pursuant to which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established.

30 . The Constitutional Court ’ s decision was served on the applicant company ’ s lawyer on 16 February 2012 . I t was not amenable to appeal .

E. Further course of the proceedings

31 . Following the quashing of the judgments of 21 May 2007 and 28 April 2009 by the Supreme Court on 12 May 2012, the case was remitted to the District Court for re ‑ examination in the light of the principles set out by the Supreme Court.

32 . The action was thus re-examined and again dismissed at first instance by the District Court on 29 October 2012 and, following an appeal lodged by the applicant company, by the Regional Court on 19 September 2013.

33 . The District Court held a hearing and new evidence was taken. Having examined the evidence and in view of the legal opinions expressed by the Supreme Court, the court concluded that the applicant company had been mala fide s in acquiring the promissory note, and that it had failed to show that the note had been issued as a blanket note or that any arrangement had been made for adding a maturity date to it. Thus, the note had been payable “at sight” and any claims based on it were statute-barred.

34 . Following service of the written version of the Regional Court ’ s judgment on the parties, the dismissal of the action became final and binding on 23 October 2013.

F . Another similar case brought by the applicant company

35 . In another case the applicant company sued the same defendant for payment under another promissory note , also issued by Mr J.D. on behalf of the defendant on 1 October 1998. The note was for the same amount as in the present case and the relevant circumstances were similar.

36 . Following the applicant company ’ s action, a payment order was issued on 6 March 2006 . However, it was then quashed on 21 May 2007 following a protest by the defendant. The latter decision was upheld on 29 January 2008 following an appeal lodged by the applicant company.

37 . The applicant company subsequently twice petitioned the PG to challenge by way of an extraordinary appeal the judgments quashing the payment order and dismissing its appeal. Among other things, it referred to the PG ’ s extraordinary appeal of 10 June 2006 in the present case (see paragraphs 18 et seq . above) and submitted that the judgments mentioned in the preceding paragraphs contained the same structural and technical flaws, save for the outcome, which that time had been to the applicant company ’ s disadvantage.

38 . In a letter of 5 October 2010 the PG informed t he applicant company that its repeated petition had ultimately been dismissed .

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Civil Procedure

1. Various provisions

40 . Under Article 101 § 1, the parties to the proceedings are required 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.

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

42 . 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.

2. Appeals on points of law

43 . 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 lies with the Supreme Court (Article 243).

3. Extraordinary appeals

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

45 . 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).

46 . 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).

47 . 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) incorrect assessment of points of law.

48 . 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).

49 . 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).

50 . 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.

51 . The p rovisions of Article 243h §§ 3 and 4 and Article 243ha §§ 1 and 2 mentioned in the two preceding paragraphs were introduced in the CCP by an amendment (Law no. 484/2008 Coll.) which entered into force on 28 November 2008.

52 . 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).

4. Reform of the CCP

53 . 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 ) .

B . The Constitutional Court ’ s practice concerning extraordinary appeals

54 . 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 f or ensuring that judicial decisions were not only formally final but also substantively correct. A clear discrepancy between the degrees of respect shown for th o se 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 the outcome of the procedure (linked to either factual or legal assessment) , and to instances where other available lega l 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.

55 . 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, t he protection from unlawful final and binding decisions pursued in those proceedings serve d the general interest.

C. Bills of Exchange, Promissory Notes and Cheques Ac t

57 . The relevant part of the Act is modelled along the lines of the 1930 Geneva Convention Providing a Uniform Law f or Bills of Exchange and Promissory Notes. The relevant parts of the Convention provide as follows:

“ Article 10

If a bill of exchange, which was incomplete when issued, has been completed otherwise than in accordance with the agreements entered into, the non-observance of such agreements may not be set up against the holder unless he has acquired the bill of exchange in bad faith or, in acquiring it, has been guilty of gross negligence.

...

Article 17

Persons sued on a bill of exchange cannot set up against the holder defences founded on their personal relations with the drawer or with previous holders, unless the holder, in acquiring the bill, has knowingly acted to the detriment of the debtor.

...

Article 33

1. A bill of exchange may be drawn payable:

At sight;

...

At a fixed date.

...

Article 34

A bill of exchange at sight is payable on presentment. It must be presented for payment within a year of its date.

...

Article 70

1. All actions arising out of a bill of exchange against the acceptor are barred after three years, reckoned from the date of maturity.

...

Article 75

A promissory note contains:

1. The term ‘ promissory note ’ inserted in the body of the instrument and expressed in the language employe d in drawing up the instrument;

2. An unconditional promise to pay a determinate sum of money;

3. A s tatement of the time of payment;

4. A statement of the pl ace where payment is to be made;

5. The name of the person to whom or to who se order payment is to be made;

6. A statement of the date and of the place where t he promissory note is issued;

7. The signature of the person who issues the instrument (maker).

...

Article 76

...

2. A promissory note in which the time of payment is not specified is deemed to be payable at sight.

...

Article 77

1. The following provisions relating to bills of exchange apply to promissory notes so far as they are not inconsistent with the nature of these instruments,

Endorsement ( Articles 11 to 20);

Time of payment ( Articles 33 to 37);

...

Limitation of actions ( Articles 70 and 71);

...

2. The following provisions are also applicable to a promissory note: ... and provisions concerning a bill of exchange in blank ( Article 10).

...

Article 78

1. The maker of a promissory note is bound in the same manner as an acceptor of a bill of exchange.

... ”

III. Relevant European texts

A. Venice Commission ’ s Report on the Independence of the Judicial System

59 . In section III 9 . entitled “Final character of judicial decisions”, the report refers to Principle I(2)(a)(i) of Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the Independence, Efficiency and Role of Judges, which provides:

“decisions of judges should not be the subject of any revision outside the appeals procedures as provided for by law”.

The relevant part of the report continues:

“It should be understood that this principle does not preclude the re-opening of procedures in exceptional cases on the basis of new facts or on other grounds as provided for by law.

66. While the [Consultative Council of European Judges] concludes in its Opinion No. 1 (at 65), on the basis of the replies to its questionnaire, that this principle seems to be generally observed, the experience of the Venice Commission and the case law of the [Court] indicate that the supervisory powers of the Prokuratura in post-Soviet states often extend to being able to protest judicial decisions no longer subject to an appeal.

67. The Venice Commission underlines the principle that judicial decisions should not be subject to any revision outside the appeals process, in particular not through a protest of the prosecutor or any other state body outside the time limit for an appeal.”

B. Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system

60 . The Recommendation was adopted by the Committee on 19 September 2012 and its relevant part reads as follows:

“ Recalling also that every member of the Council of Europe has accepted the principle of the rule of law and of the enjoyment by all persons within its jurisdiction of the human rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5);

...

2. Where the national legal system provides public prosecutors with responsibilities and powers outside the criminal justice system, their mission should be to represent the general or public interest, protect human rights and fundamental freedoms, and uphold the rule of law.

C. Common principles

3. The responsibilities and powers of public prosecutors outside the criminal justice system should in all cases be established by law and clearly defined in order to avoid any ambiguity.

4. As in the criminal law field, public prosecutors should exercise their responsibilities and powers outside the criminal justice system in full accordance with the principles of legality, objectivity, fairness and impartiality.

...

11. Where the public prosecutor is entitled to make a decision affecting the rights and obligations of natural and legal persons, such powers should be strictly limited, defined by law and should not prejudice the parties ’ right to appeal on points of fact and law to an independent and impartial tribunal. The public prosecutor should act independently from any other power and his or her decisions should be reasoned and communicated to the persons concerned.

...

In relation to the principles of legal certainty and res judicata

22. In order to comply with the principles of legal certainty and res judicata, the grounds upon which the public prosecutor may seek a review of the final decision of a court should be limited to exceptional cases and the review processed within a reasonable time limit. Except in cases where the review does not concern the rights and obligations of the parties, as set out in the decision under review, the parties to the original proceedings should be informed of the review and, should they so wish, given the opportunity to be joined to the proceedings. ”

C. Opinion No. 3 (2008) of the Consultative Council of European Prosecutors (CCPE) on “The role of prosecution services outside the criminal law field”

“The CCPE is of the opinion that States where prosecution services have non criminal competences should ensure that these functions are carried out in accordance with the principles governing a democratic state under the rule of law and in particular that:

a. the principle of separation of powers is respected in connection with the prosecutors ’ tasks and activities outside the criminal law field and the role of courts to protect human rights;

b. the respect of impartiality and fairness characterises the action of prosecutors acting outside the criminal law field as well;

c. these functions are carried out ‘ on behalf of society and in the public interest ’ , to ensure the application of law, respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;

d. such competencies of prosecutors are regulated by law as precisely as possible;

e. no undue intervention in the activities of prosecution services occurs;

f. when acting outside the criminal law field, prosecutors enjoy the same rights and obligations as any other party and do not enjoy a privileged position in the court proceedings (equality of arms);

g. the action of prosecution services on behalf of society to defend public interest in non criminal matters does not violate the principle of binding force of final court decisions ( res judicata ) with some exceptions established in accordance with international obligations including the case-law of the Court;

h. the obligation of prosecutors to motivate their actions and to make these motivations open for persons or institutions involved or interested in the case;

...

j. the developments in the case-law of the Court concerning prosecution services ’ activities outside the criminal law field is followed closely in order to ensure that the legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments; ”.

THE LAW

I. PRELIMINARY ISSUES

62 . The Government argued that, in so far as the applicant company had sought to challenge the existing statutory framework for extraordinary appeals, its constitutional complaint had not been an effective remedy for the purposes of Article 35 § 1 of the Convention and, consequently, its complaint before the Court had been lodged belatedly.

63 . The applicant company disagreed and submitted that the six-month time-limit had not started to run until the Constitutional Court ’ s decision had been served on its lawyer, namely on 16 February 2012 (se e paragraph 30 above). I n any event, in their view the existing statutory framework for extraordinary app e als amounted to a continuing situation that had violated its Convention rights . That situation would not come to an end until that remedy was abolished altogether.

64 . The Court observes that part of the present application concern s the mere existence of the concept of the extraordinary appeal, which in the applicant company ’ s view was as such incompatible with the guarantees of legal certainty. It considers that the Government ’ s inadmissibility objection needs no separate response because the relevant part of the application is in any event inadmissible on the following ground s .

66 . 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 ).

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

67 . Conversely, in so far as the applicant company may be understood as 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.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

68 . The applicant company complained that the extraordinary appeal lodged by the PG, the ensuing proceedings before the Supreme Court and the Supreme Court ’ s decision on it had been contrary to the guarantees of a fair hearing by an independent and impartial tribunal under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... ”

A. Admissibility

69 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ arguments

70 . The applicant company alleged a breach of the guarantees of equality of arms, legal certainty and an independent and impartial tribunal.

71 . On the first count, it argued that the mere existence of the extraordinary appeal proceedings had been contrary to the equality-of-arms principle. This was all the more so in that the contested appeal had favoured the defendant, which was an entity in which the State had a majority interest; that the PG belonged to the executive power; that the lodging of the extraordinary appeal had fallen within the PG ’ s exclusive discretion ; and that the applicant company itself had been unsuccessful in having an extraordinary appeal lodged on its behalf .

72 . On the second count, the applicant company contended that there had been no good reason for interfering with the original, final and binding judgments in its favour and, more specifically, that the di spute in question had been of a private ‑ law nature . T he extraordinary appeal had been concerned not only with points of law, but also with points of fact which had been no more than ordinary in nature . T he two lower levels of jurisdiction had already determined those points unanimously . T he defendant had had other means of asserting its rights directly, in particular by way of an appeal on points of law . T he extraordinary appeal had not resulted in a final determination of the dispute but rather in its prolongation . Nor had it served any greater good than the Government ’ s political and economic interests . Moreover, it had been lodged with the reasons to be added later and with an automatic suspensive effect , based on a legislative amendment adopted w ith retroactive effect with the aim of reversing the outcome of a specific , albeit unrelated , dispute.

73 . On the third and last count, the applicant company reiterated some of the above-mentioned arguments . It added that, in the extraordinary appeal, the PG had argued that the courts should have taken into account the public notoriety of promissory notes issued by Mr J.D. In their submission, by not distancing itself clearly from such a consideration, the Supreme Court had lost its credibility as an independent and impartial tribunal .

74 . In reply, t he Government summarised the applicable procedural framework , emphasised that the extraordinary appeal in the present case had been lodged at the request of one of the parties to the proceedings, the defendant , and considered that it had been decided on within the parameters of the Court ’ s case-law.

In that regard, the Government submitted that the promissory notes legislation in Slovakia had in practice been forgotten until its renaissance after the changes of 1989. In the early period of its revival there had been a certain naivety as regards the legal nature of the instrument and its potential to secure payment s based on abstract obligations with out any basis.

In the present case, the applicant company must have realised that it had made claims originating from a promissory note that had been issued without any basis. In view of the large sum of money involved , the notoriety of Mr J.D. ’ s promissory notes and the circumstances in which the applicant company had acquired that note, the original judgments in the applicant company ’ s favour had been viewed by the public as resulting from a fundamental failure of the judicial system . T he interest in having th o se judgments rectified therefore prevailed over the principle of legal certainty .

In addition, the Government submitted that the litigation in the present case had revolved around the adding of the maturity date to the contested promissory note. The resolution of that question in turn depended on the distribution of the burden of proof. In distributing the burden of proof , the courts had originally committed a fundamental procedural error , incompatible with the principle of legal certainty , by requesting the defendant to prove the non-existence of facts, which may not be proven as a matter of principle. They had thus placed the defendant in a deadlock , contrary to the fundamental principles of the law of procedure and formal logic.

75 . T he applicant company referred to its previous arguments , pointing out in particular that the issue of burden of proof that lay at the heart of the Supreme Court ’ s decision to quash the final and binding judgments in the applicant company ’ s favour had not involved any fundamental legal questions , but merely a different view of an ordinary question of law , which the lower courts had resolved properly and with final effect . Had any fundamental procedural errors been committed by the lower courts, they would have fallen within the purview of Article 237 of the CCP, which provide d for an appeal on points of law to be directly available to the applicant company. Moreover, the applicant company considered that nothing in the Government ’ s submission had had any relevan ce to its claims that the State , of which the PG was an organ , had a proprietary interest in the defendant .

2. The Court ’ s assessment

(a) General principles

76 . The Court notes that the present case raises interrelated issues of equality of arms, legal certainty and independent and impartial tribunal . T he problem at the heart of the application is that a final and binding judgment in the applicant company ’ s favour was quashed following an extraordinary appeal lodged by the PG at the request of the defendant, an entity in which the State had a proprietary interest .

- The right to a fair hearing before a trib unal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, the relevant part of which declares that the rule of law is part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue , their ruling should not be called into question.

- That principle does not allow a party to seek the reopening of proceedings merely for the purpose of a re - hearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination.

- Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character. Higher courts ’ powers to quash or alter binding and enforceable judicial decisions should be exercised for the purpose of correcting fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice.

- The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant ’ s individual situation and whether the reopening resulted from the applicant ’ s own request; the grounds on which the domestic authorities overturned the judgment in the applicant ’ s case; the compliance of the procedure at issue with the requirements of domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case. In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings.

- In a number of cases the Court, while addressing the notion of “a fundamental defect”, has stressed that merely considering that the investigation in the applicant ’ s case was “incomplete and one-sided” or led to an “erroneous” acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings.

78 . On the same matter, the Court has also held that the review of final and binding decisions should not be treated as an appeal in disguise and that the principle of legal certainty may be set aside in order to ensure a correction of fundamental defects or miscarriage of justice (see, for example, Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003-IX) and to rectify “an error of fundamental importance to the judicial system”, but not for the sake of legal purism (see Sutyazhnik v. Russi a, no. 8269/02, § 38, 23 July 2009).

79 . As to t he principle of equality of arms, the Court reiterates specifically that, as one of the elements of the broader concept of a fair trial, it requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, for example, Nideröst-Huber v. Switzerland , 18 February 1997, § 23, Reports of Judgments and Decisions 1997 ‑ I).

(b) Application of th o se principles in the present case

80 . The Court acknowledges at the outset that the applicant company ’ s claims on the basis of the contested promissory note were adjudicated with the force of a res judicata and that the final and binding judgment in its favour was quashed following the application of an extraordinary remedy.

Therefore, i t must be ascertained whether the interference with the originally completed proceedings in the present case was compatible with the guarantees of Article 6 of the Convention, in particular with the principles of the rule of law , legal certainty and equality of arms inherent in that provision.

82 . It notes that, in that respect, the Government have submitted that the domestic litigation in the present case concerned an area of law that had been rediscovered at the relevant time after a long period of practical abandonment. As confirmed by the final judgment in the case, in the original round of proceedings the courts had committed a fundamental procedural error in the distribution of the burden of proof, which was determinative of the outcome. The original judgment had thus been wrong in law and, in view of all the circumstances , it had been s een by the public as a fundamental failure of the judicial system , calling for correction .

83 . Leaving aside the question whether the error of law identified by the Government is procedural or substantive in nature, the Court is not convinced that it constituted a circumstance justifying an interference with the final and binding judgment in the present case.

T he Court notes that in the original round of proceedings the applicant company ’ s claim was examined twice by the court of first instance, of which the former examination was summary and led to the payment order of 17 February 2006, while the latter was full-fledged and led to the judgment of 21 May 2007, and that the action was then re-heard and re-examined at the appellate level , culminating in the judgment of 28 April 2009 (see paragraphs 13 et seq . above) .

The Court also notes that the payment order and both judgments were in favour of the applicant company and that the reasoning behind the two judgments was congruous .

85 . In addition, the Court finds it of relevance that the litigation was of a private-law nature. Moreover, the further arguments in the extraordinary appeal in relation to those advanced by the defendant in the original round of proceedings were advanced by the PG while the State had an interest in the outcome of the proceedings through its majority shareholding in the defendant and as a result of the indemnification clause in the privatisation contract concerning the remaining shareholding in the defendant (see paragraphs 10 and 11 above). And what is more, the Government do not appear to have given any answer to the applicant company ’ s argument that, in the case of any major procedural irregularity, there was another remedy available to the applicant company directly, an (ordinary) appeal on points of law.

There has accordingly been a violation of Article 6 of the Convention. This finding make s it unnecessary for the Court to examine separately on the merits the remaining components of the applicant company ’ s complaint under that Article.

I I I . ALLEGED VIOLATION OF ARTICLE 1 OF PRO TO C O L N o . 1

87 . The applicant company complained that the quashing of the final and binding judgment in its favour constituted an interference with its possessions , in violation of Article 1 of Protocol No. 1 to the Convention , which reads as follows:

“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.”

A. Admissibility

88 . The Court notes that this complaint is factually and legally linked to that examined above under Article 6 of the Convention on the merits. It considers that the present complaint is likewise not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

89 . The Government acknowledged that the adjudicated claims of the applicant company had constituted “possessions” and that their quashing had amounted to an interference with those possessions within the meaning of Article 1 of Protocol No. 1. However, they emphasised that the quashing of the judgments in question had been in full compliance with the law, legitimate, and had not placed an excessive individual burden on the applicant company.

90 . The applicant company disagreed and reiterated the complaint. It emphasi s ed in particular that, although the quashing of the final and binding judgment in its favour had been in compliance with the law, it had not followed any legitimate aim and had constituted an excessive individual burden on it.

It follows that there has been a violation of Article 1 of Protocol No. 1 .

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

94 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

95 . The applicant company claimed 25,762,763.22 euros (EUR) in respect of pecuniary damage, this aggregate amount consisting of the amounts awarded in the original round of proceedings and interest for late payment as of the day of the introduction of the claim. It also claimed EUR 100,000 in respect of non ‑ pecuniary damage.

96 . As regards the former claim, the Government stated that if the applicant company had incurred any pecuniary damage, a potential finding by the Court of a violation of its Convention rights would provide a basis for reopening the domestic proceedings under Article 228 § 1 (d) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended), and that the applicants could seek compensation in such reopened proceedings. As regards the latter claim, the Government considered it excessive.

97 . As to the claim in respect of pecuniary damage, the Court observes that the provision invoked by the Government appears to provide the applicant company with a way of having the impugned proceedings reopened and that the defendant to be potentially affected by any such reopening is at present wholly owned by the State (see paragraph 11 above) .

98 . The Court considers that the applicant company must have suffered non-pecuniary damage. Making its assessment on an equitable basis, the Court awards the applicant company EUR 1 0,000, plus any tax that may be chargeable, in respect of non-pecuniary damage .

B. Costs and expenses

99 . The applicant also claimed EUR 1,017, 028 .1 6 for legal fees incurred before the domestic courts and the Court and EUR 817.55 for translation costs . The former claim was accompanied by an itemised chart explaining the calculation of its amount, the latter by itemised bills.

100 . The Government contested the claim in respect of legal fees as unsubstantiated. Moreover, as to the legal fees allegedly incurred at the domestic level , the Government considered the claim un founded and , as to those allegedly incurred before the Court , overstated. Concerning the translation costs, they submitted that they had no objections to the claim .

101 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.

102 . In the instant case, the Court observes that the applicant company has not substantiated its claim in respect of legal fees by any relevant supporting documents establishing that it was under an obligation to pay for the cost of legal services or has actually paid for them. Accordingly, the Court decides not to award any sum under this head ( Ištván and Ištvánová v. Slovakia , no. 30189/07 , § 122, 12 June 2012 ) .

On the other hand, it awards EUR 817.55, plus any tax that may be chargeable to the applicant company, for the translation costs.

C. Default interest

103 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the application inad missible in so far as it is aimed at challenging the existing legislative framework in abstracto ;

2 . Declares the remainder of the application admissible ;

3. Holds that there has been a violation of Article 6 of the Convention;

4 . Holds that there has been a violation of Article 1 of Protocol No. 1 ;

5. Holds

(a) that the respondent State is to pay the applicant company , within three months the following amounts:

(i) EUR 1 0,000 ( t en thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 817.55 ( eight hundred seventeen euros and fifty five cents ), plus any tax that may be chargeable to the applicant company , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant company ’ s claim for just satisfaction.

Done in English, and notified in writing on 9 June 2015 , pursuant to Rul e 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Josep Casadevall Registrar President