FIRST SECTION

DECISION

Application no. 46341/17 SLOVDAN, SPOL. S R.O. against Slovakia

The European Court of Human Rights (First Section), sitting on 12 October 2021 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 22 June 2017,

Having regard to the formal declarations accepting a friendly settlement of the case in so far as it concerns the complaint under Article 6 § 1 of the Convention (participation in the proceedings before the Constitutional Court),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company in relation to the complaint under Article 1 of Protocol No. 1 (legal certainty),

Having deliberated, decides as follows:

THE FACTS

1 . The applicant company, SLOVDAN, spol. s r.o., is a private limited liability company, established in 1993 and having registered office in Bratislava. It was represented before the Court by Mr Z. Nováček , a lawyer practising in Bratislava.

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

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

4. Under a private-law contract of 2006 the applicant company undertook to provide services to another private company (“the defendant”) in exchange for remuneration. The transaction had to do with brokering insurance policies.

5. In 2009 the applicant company sued the defendant for the payment of an amount of money under the contract.

6 . Having interpreted the domestic law and the terms of the contract, the ordinary courts at two levels ordered the defendant to pay the applicant company some 982,000 euros and dismissed the remainder of the claim. The judgment became final and binding on 3 June 2015 and the proceedings for its enforcement commenced on 15 June 2015.

7 . On 30 March 2016 the Supreme Court rejected the defendant’s appeal on points of law, this being an extraordinary remedy with no direct impact on the final and binding effect and the enforceability of the judgment.

8 . The defendant then further pursued its case by way of a constitutional complaint, invoking, inter alia , Article 6 § 1 of the Convention and arguing that the reasoning given by the ordinary courts had been inadequate. The complaint was filed at the reception desk of the Constitutional Court in person on 13 July 2016.

9 . Under an Annex to the Constitutional Court’s work schedule ( rozvrh práce ) in force at that time, incoming submissions that were filed by personal delivery were to be assigned to a judge rapporteur by a random generator immediately on having been filed and recorded in the Constitutional Court’s information system.

10 . Pursuant to a certificate of filing ( potvrdenie o prijatí podania ) issued by the Constitutional Court on 13 July 2016, on that very day the complaint was assigned to a judge rapporteur identified therein. This certificate identifies the filing by its number in the register of incoming mail and contains further identification references. According to a record of assignment ( záznam z prvého pridelenia spisov ) issued by the Constitutional Court on 6 February 2020, the digital algorithm of the random generator used for the assignment of the defendant’s constitutional complaint to a judge rapporteur had been initiated at 14:19:32 of the day of the filing (13 July 2016). These documents have been submitted by the Government in the proceedings before the Court. The Government further submitted that, in the event of a filing by personal delivery, one copy of the certificate of filing was issued to the person making the filing and one was included in the case file, as it had been done in the present case.

11 . As pointed out by the applicant company, in the present case the certificate of filing was not listed in the table of contents of the Constitutional Court’s case file and was not numbered as part of it. The applicant company further submitted an automatically generated document from the Constitutional Court’s Internet page, which indicates that the “filing” in question had been made on 13 July 2016, but that the “file” in its respect was open on 14 July 2016, along with files concerning other filings made on the latter date. Further similar documentation from the Constitutional Court’s Internet page shows that “files” in respect of other “filings” made on 13 July 2016 were open on that very day, and this includes “filings” that had come in on that day but later than the “filing” of the defendant’s complaint.

12 . On 14 September 2016 the Constitutional Court declared the complaint admissible and suspended the enforceability of the contested judgment.

13. On 3 October 2016 the applicant company sought leave to intervene in the constitutional proceedings as a third party, asking, inter alia , for a copy of the defendant’s complaint. The Constitutional Court responded on 4 and 7 October 2016 by transmitting to the applicant company a copy of the complaint, its own decision of 14 September 2016 and observations in reply to the complaint made by the courts concerned.

14 . On 9 November 2016 the Constitutional Court determined the merits of the defendant’s complaint by finding a violation of the defendant’s right to a fair hearing in that the appellate court’s reasoning had been deficient so as to constitute a ground for appealing on points of law. In consequence, the Constitutional Court quashed the decisions of the cassation court as well as that of the court of appeal and remitted the case to the latter for a fresh examination of the defendant’s appeal.

15. By a letter of 10 November 2016, received at the Constitutional Court on 14 November 2016, the applicant company submitted its observations on the defendant’s constitutional complaint, being unaware of the constitutional judgment ( nález ) of 9 November 2016. A copy of that judgment was served on the applicant company on 11 January 2017.

16 . Following the constitutional judgment of 9 November 2016, it became incumbent on the appellate court to determine anew the defendant’s appeal, which it did by allowing the appeal and remitting the case to the first-instance court for a new determination. By judgments of 29 May 2018 and 22 April 2021, respectively, the ordinary courts at two levels dismissed the applicant company’s action.

COMPLAINTS

17. The applicant company raised complaints under Article 6 § 1 of the Convention in connection with the fact that it had been unable to participate effectively in the proceedings before the Constitutional Court resulting in its judgment of 9 November 2016. It also alleged that there had been what it considered to be a manipulation with the assignment of the defendant’s constitutional complaint to the judge rapporteur.

18. Relying on Article 1 of Protocol No. 1, the applicant company also complained that the constitutional judgment of 9 November 2016 had interfered with its possessions, consisting of property rights previously adjudicated by a final, binding and enforceable judgment.

THE LAW

19 . On 21 May 2020 the Court received friendly settlement declarations signed by the parties in so far as the application concerned the applicant company’s complaint under Article 6 § 1 of the Convention about the lack of effective participation in the proceedings before the Constitutional Court.

The applicant company agreed to waive any further claims against the Slovak Republic in respect of the facts giving rise to the application in the relevant part against an undertaking by the Government to pay the applicant company 2,000 euros (EUR) to cover any non-pecuniary damage and EUR 500 euros to cover the costs and expenses incurred in connection with legal representation before the Court, plus any tax that may be chargeable to the applicant company.

These sums would be payable within three months from the date of notification of the decision taken by the Court to strike this part of the case out of its list of cases. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The payment would constitute the final resolution of the case in respect of the applicant company’s complaint under Article 6 § 1 of the Convention about the lack of effective participation in the proceedings before the Constitutional Court.

20. The Court takes note of the friendly settlement reached between the parties in respect of this part of the application. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of that complaint (Article 37 § 1 in fine of the Convention).

In view of the above, it is appropriate to strike this part of the application out of the list of cases.

21. The applicant company further complained that its right to the peaceful enjoyment of its possessions had been violated by the Constitutional Court’s quashing of a final, binding and enforceable judgment in its favour. It relied on Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

22. The Government sought to distinguish the present case from that of DRAFT - OVA a.s. v. Slovakia (no. 72493/10, §§ 91-93, 9 June 2015), arguing that in that case the quashing of a final and binding judgment had taken place upon the Prosecutor General’s extraordinary appeal on points of law, while in the present case it had been upon the defendant’s constitutional complaint. They argued that, unlike an extraordinary appeal on points of law, a constitutional complaint was an element in the chain of domestic remedies at the disposal of the parties in the case, rather than extraordinary means for reopening of proceedings.

The Government emphasised that once the Constitutional Court had declared the defendant’s complaint admissible (14 September 2016), it had suspended the enforceability of the constated judgment pending the outcome of the constitutional proceedings on the merits, which had taken place on 9 November 2016.

Moreover, the Government referred to the Constitutional Court’s finding that the reasoning of the lower courts had been deficient in terms of Article 6 § 1 of the Convention. A corrective intervention by the Constitutional Court had thus been lawful and consistent with a general interest and had not imposed an excessive burden on the applicant company.

23 . In its reply of 4 January 2021, the applicant company submitted that the alleged violation of its property rights stemmed not only from the quashing of the final and binding judgment in its favour, but also from the lack of its effective participation in the constitutional proceedings. On the first count, it asserted that there had been no exceptional circumstances justifying the quashing, that the defendant’s constitutional complaint pursued no more than arguments that had already been examined and dismissed by the courts of appeal and cassation, and that it was merely an “appeal in disguise”.

24 . At the outset, the Court finds it appropriate to determine the scope of the complaint. In that respect, it notes that in the application form (pages 10 and 11) the applicant company, then and at all subsequent times represented by a lawyer, raised all of its procedural objections exclusively under Article 6 § 1 of the Convention. As to its complaint under Article 1 of Protocol No. 1, it argued that “its property rights had been interfered with by the quashing of a final judgment in its favour”, making a reference to the Court’s judgments in the cases of DRAFT - OVA a.s. (§ 91, cited above) and Brumărescu v. Romania ([GC], no. 28342/95, § 74, ECHR 1999 ‑ VII). It added that “in particular, but not only, the [above so specified alleged violation of Article 1 of Protocol No. 1] took place simultaneously with the violation of Article 6 § 1 of the Convention”.

25. The Court also notes that the application was notified to the Government with the procedural complaints concerning the applicant company’s participation in the constitutional proceedings characterised as falling under Article 6 § 1 of the Convention and with that concerning the principle of legal certainty as being under Article 1 of Protocol No. 1. The parties concluded the former part of the application on 21 May 2020 by a settlement (see paragraph 19 above).

26. Moreover, even assuming that the applicant company were not precluded by the terms of the friendly settlement from raising the same procedural objections under Article 1 of Protocol No. 1 in its observations of 4 January 2021 (see paragraph 23 above), such complaints would be belated within the meaning of Article 35 § 1 of the Convention.

27. Having regard to all the circumstances, the Court concludes that the scope of the applicant company’s complaint under Article 1 of Protocol No. 1 is limited to the issue of legal certainty.

28. The Court has previously found violations of the legal certainty requirement in cases involving a review by the Supreme Court following an extraordinary appeal on points of law by the Prosecutor General (see DRAFT - OVA a.s. , cited above; and, mutatis mutandis , PSMA, spol. s r.o. v. Slovakia , no. 42533/11, 9 June 2015; and COMPCAR, s.r.o. v. Slovakia , no. 25132/13, 9 June 2015). However, the present case is different from those in that it concerns another remedy with different parameters of operation in law – as well as on the specific facts.

29. In particular, the present complaint concerns an individual complaint to the Constitutional Court under Article 127 of the Constitution. This remedy is in general considered effective for the purposes of the requirement of exhaustion of domestic remedies (see L.G.R. and A.P.R. v. Slovakia (dec.), no. 1349/12, 13 May 2014). It is in principle directly available to any party concerned, within a two-month time-limit and subject to the requirement to exhaust ordinary remedies, with further procedural rules embodied in the Constitutional Court Act and with extensive established practice (see, among many others, Ďurďovič and Trančíková v. Slovakia , no. 16639/11, § 22, 7 October 2014; Stavebná spoločnosť TATRY Poprad, s.r.o. v. Slovakia , no. 7261/06, §§ 20-22, 3 May 2011; Lawyer Partners a.s. v. Slovakia , nos. 54252/07 and 14 others, § 22, ECHR 2009; and Lubina v. Slovakia , no. 77688/01 , §§ 46-47, 19 September 2006). No issue with these rules and procedures have been taken on the specific facts of the present case.

30. The Court finds that the constitutional-complaint procedure followed in the present case was not incompatible with the principle of legal certainty enshrined in the Convention and that the review by the Constitutional Court constituted an ultimate element in the chain of domestic remedies at the disposal of the parties rather than an extraordinary means for reopening of judicial proceedings in a case (see, for example, OOO Link Oil SPB v. Russia (dec.), no. 42600/05, 25 June 2009, with further references).

31. The fact that the original judgment in the applicant company’s favour became final, binding and enforceable before the constitutional review does not alter the Court’s above conclusion. First, the enforceability of that judgment was lawfully stayed pending the outcome of the constitutional review (see paragraph 12 above). Second, a judgment that has become binding and enforceable is not necessarily final under the Convention. Indeed, in numerous Contracting States, supreme judicial instances deliver final judgments after lower courts’ judgments have become binding and enforceable. This situation is not in itself incompatible with the principle of legal certainty (see, for example, OOO Link Oil SPB , cited above).

32. In view of the foregoing, in so far as the matters complained of have been substantiated and fall within the Court’s competence, the complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

33. In the application form, relying on Article 6 § 1 of the Convention (see paragraph 24 above), the applicant company also alleged that there had been a violation of its right to a hearing by a tribunal established by law in that there had been what it considered to be a manipulation with the assignment of the defendant’s constitutional complaint to the judge rapporteur and, thereby, the respective Chamber of the Constitutional Court. In the applicant company’s submission, this alleged manipulation had to do with the assignment having taken place on 14 July 2016 as opposed to 13 July 2016 when the complaint was lodged. In its observations in reply to those of the Government (see paragraph 23 above), the applicant company sought to pursue this complaint also under Article 1 of Protocol No. 1.

34. The Court notes first of all that, although this complaint as such was not communicated to the respondent Contracting Party for observations (Rule 54 § 2 (b) of the Rules of Court), the parties made submissions in its respect (see paragraphs 10 and 11 above). It will accordingly assess the complaint in the light of all the material in its possession, irrespective of its provenance.

35. The Court considers that with regard to this specific complaint it is not necessary to determine definitively under which Convention provision it is to be examined because, for the reasons laid out below, it is in any event inadmissible.

36. In particular, the Court notes that no issue has been taken with the impartiality of the judge rapporteur to whom the defendant’s constitutional complaint was assigned and with the fact that the case was assigned to her by means of a random generator as prescribed by the applicable rules (see paragraph 9 above). The complaint, therefore, is only about whether the assignment took place immediately on the filing of the complaint, that is on 13 July 2016, or on the subsequent day.

37. The Court notes that the certificate of filing of 13 July 2016 and the record of assignment of 6 February 2020 attest in a verifiable manner that the assignment of the filing to the judge rapporteur took place on 13 July 2016. The documentation submitted by the applicant company or otherwise obtained from the Constitutional Court’s web site confirms this and, in so far as it identifies 14 July 2016 as the day on which the actual file was opened, it concerns an administrative technicality with no impact on the assignment of the case to the judge rapporteur. The same goes for the question as to whether the said documents were or were not a part of the constitutional court’s case file. Therefore, to the extent that this complaint has been substantiated, it is not borne out by the facts available to the Court. As such, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention in so far as it concerns the applicant company’s complaint under Article 6 § 1 of the Convention (participation in the constitutional proceedings);

Declares inadmissible the remainder of the application.

Done in English and notified in writing on 18 November 2021.

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Attila Teplán Péter Paczolay Acting Deputy Registrar President