Resolution CM/ ResDH (2012)57 [1]

Execution of the judgment of the European Court of Human Rights

Hud á kov á against the Slovak Republic

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

Hud á kov á (23083/05)

27/07/2010

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent State to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see action report, document DH ‑ DD(201 2 )128E );

Having noted that the respondent State paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

App. No. 23083/05

Hud á kov á and others v. Slovakia, judgment of 27/04/2010, final on 27/07/2010

Introductory case summary

This case concerns the unfairness of civil proceedings brought against the applicants due to the failure of the Supreme Court to communicate written observations submitted by the plaintiffs in July 2004 to the applicants (violation of Article 6 § 1). In 2004 the Supreme Court dismissed the applicant ’ s appeal on points of law: the appeal on point of law was net rejected on the grounds that it failed to meet the requirements for admissibility of the appeal, the Supreme Court judgment dismissed the appeal in its merits. It indicated inter alia that the plaintiffs had submitted observations on this appeal. These observations were not communicated to the applicants.

The European Court noted that the onus had been on the Supreme Court to afford the applicants an opportunity to comment on the written observations Moreover, the opposing party in the proceedings, unlike the applicants, had access to all the information in the case file. In permitting the plaintiffs to submit written observations and denying the applicants sight of and the opportunity to comment on these observations the Supreme Court had failed to treat the parties equally (see §§ 29 — 30 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The European Court held that the finding of a violation constitutes sufficient just satisfaction for the applicants and dismissed the remainder of their claim for just satisfaction (see §§ 39 and 42 of the judgment)

b) Individual measures

The Government consider that this case does not call for the reopening of domestic proceedings. Notwithstanding, the Government note that on 24 June 2005 an amendment of the Code of Civil Procedure was adopted (with effect of 1 September 2005). This amendment provides for the possibility to reopen the domestic proceedings on the basis of a judgment of the European Court of Human Rights. Under Section 228 § 1 (d) of the Code of Civil Procedure, a party to the proceedings may challenge a final judgment by a petition seeking to reopen the proceedings if there exists a decision delivered by European Court of Human Rights, in which it found that a decision taken by national court, or the proceedings preceding such a decision, had violated the fundamental rights or freedoms of the party to the proceedings, whereby substantial consequences arising from such violation have not been duly remedied by the awarded just satisfaction.

Under Section 230 § 1, a petition for reopening of proceedings must be filed within the time limit of three months from the day on which the person proposing the reopening learned about the reason for reopening or from the day on which he/she could use this reason (a subjective time limit). Pursuant to Section 230 § 2 of the Code of Civil Procedure, in the cases referred to in Section 228 § 1 (d), a petition for reopening of proceedings may also be filed after the expiry of the period of three years from the day on which the judgment became final (an objective time limit).

Il. General measures

a) Publication and dissemination

The judgment was published in the Judicial Revue ( Justičná Revue) No. 10/2010. The judgment was sent to the Supreme Court. The President of the Civil Chamber of the Supreme Court informed the Agent of the Government that all judges of the Supreme Court were notified of the judgment

b) Domestic court practice

In response to the above-mentioned letter of the Agent, the President of the Civil Chamber of the Supreme Court stated that in cases when the first instance court failed to send observations on appeal on points of law to the opposing party, the Supreme Court, with regard to the judgment in the case Hud á kov á and others, sent those observations to the opposing party itself.

At the same time the President noted that, with regard to the judgment in the case Hud á kov á and others, the Supreme Court in several decisions delivered by the end of 2010 and during 2011 expressed the legal view that "the failure to deliver the party ’ s comments on the appeal of the other party (appellant) creates the state of inequality of the parties in the proceedings before the court shall be contrary to the principle of equality of arms, interfering thus with the right to a fair trial". The Supreme Court considered the conduct when the appeal court failed to deliver the comments of one party on the appeal lodged by the other party to the latter (the appellant) as an error in the proceedings consisting in the prevention of acting before the court, thus an admissible ground for an appeal pursuant to Article 237f of the Code of Civil Procedure. In those proceedings affected by such error it quashed the appellate judgments and remanded the matter for further hearing to the appellate court (see the decisions of the Supreme Court file nos. 4 Cdo 141/2010, 5 Cdo 200/2010, 1 Cdo 187/2010. 5 Cdo 270/2010, 5 Cdo 92/2011). In case the comments of one party on the action lodged by the other party to the latter (the plaintiff) failed on delivery already at the first instance court, the Supreme Court quashed not only the appellate judgment but also that of first instance and remanded the matter to the first instance court for further hearing (see the decision of the Supreme Court file no. 5 Cdo 66/2010).

III. Conclusions of the respondent State

The Government consider that the Slovak Republic has thus complied with their obligations under Article 46§1 of the Convention.

In Bratislava , 1 February 2012

Marica Pirošiková

Agent of the Slovak Republic

before the European Court of Human Rights

[1] Adopted by the Committee of Ministers on 8 March 2012 at the 11 36 th Meeting of the Ministers’ Deputies .

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies.