Communicated on 19 December 2013

THIRD SECTION

Application no. 71123/13 Imrich DEGRO against Slovakia lodged on 6 November 2013

STATEMENT OF FACTS

1. The applicant, Mr Imrich Degro , is a Slovak national, who was born in 1941 and lives in Prešov .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Action

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

4. The action was granted by the Pre š ov District Court (Okresn ý súd ) on 25 June 2010 and, following an appeal lodged by the defendant, upheld by the Pre šov Regional Court ( Krajsk ý súd ) on 13 December 2010.

5. The order that the defendant replace the car or refund the purchase price became final and binding ( právoplatnosť ) on 12 January 2011, following service of t he Regional Court ’ s judgment on the parties . After the expiry of the period allowed for voluntary compliance with the order , the order bec a me enforceable ( vykonateľnosť ) on 16 January 2011.

2. Extraordinary review

6. The defendant then filed a petition with the Office of the Prosecutor General , requesting that the latter exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie – “extraordinary appeal”) . The Prosecutor General accede d to the request by challenging the contested judgments in the Supreme Court ( Najvyšší súd ).

7 . In his extraordinary appeal, the Prosecutor General relied on Article 243f § 1 (c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”) , which permits such an appeal on the ground that the challenged decision is based on a wrongful assessment of points of law (see paragraph 18 below). In particular, he argued that the courts had misconstrued the consumer-protection rule pertaining to the case. The rule provides that a consumer of a good or service that has a reparable defect has the same remedies as when the good or service has an irreparable defect, provided that the supplier of such a good or service fails to repair the reparable defect within thirty days of being asked to do so.

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

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

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

10. The proceedings are now pending at first instance.

B. Relevant domestic law and practice

1. Code of Civil Procedure

(a) Various provisions

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

12. In accordance with Article 101 § 1, the parties to the proceedings are liable for contributing 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.

13. Pursuant to Article 120 § 1, the parties to the proceedings are liable for adducing evidence to uphold their claims.

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

(b) Extraordinary appeals

15. Extraordinary appeals are regulated by the provisions of the CCP ’ s Articles 243e et seq .

16. The Prosecutor General has the power to challenge a decision of a court by means of an extraordinary appeal. Following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, the Prosecutor General may lodge an extraordinary appeal, on condition that he or she has conclude d that the final and binding decision violated the law; that the protection of the rights and legitimate interests of individuals, legal entities, or the State so requires; that that protection cannot be achieved by other means; and that the matter at hand is not excluded from review (Articles 243e § 1 and 243f § 2).

17. An extraordinary appeal may only be aimed at 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 Prosecutor General is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4).

18. 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, v. Slovakia , no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law.

2. Constitutional Court ’ s practice concerning extraordinary appeals

19. In its decision of 19 January 2012 on an unrelated case (no. IV. ÚS 35/2012 ), the Constitutional Court declared inadmissible as being manifestly ill founded a complaint lodged by a private company. The latter had alleged that, as a result of the Supreme Court ’ s quashing of a final, binding and enforceable decision in its favour following an extraordinary appeal on points of law by the Prosecutor General, its right to a fair trial had been violated , in particular access to a court and equality of arms . It also complained that its rights to and protection of property and to the principles of legal certainty and the rule of law had been breached. The Constitutional Court 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. It could therefore only review the application of the existing statutory rules in the applicant company ’ s individual case. It 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 observed that the Prosecutor General 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. In the given case, the Prosecutor General ’ s extraordinary appeal had been prompted by a petition filed by the defendant.

As to the substance, the Constitutional Court pointed out that it s role was not that of 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.

As to 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.

The Constitutional Court had taken a similar line of argument in its previous decision of 25 November 2010 on another unrelated case (no. II. ÚS 507/2010 ). In rejecting the individual complaint in that case, the Constitutional Court took into account that, following the contested decision of the cassation court, the case had been remitted to the first ‑ instance court and that it was still open to the complainant to pursue its rights before the ordinary courts.

20. In a decision of 29 October 2003 on an other unrelated case (no. IV. ÚS 197/03 ) , the Constitutional Court held, inter alia , that the standing of the Prosecutor General in extraordinary appeal proceedings before the cassation court was not that of a party to the proceedings as such, but rather a sui generis standing, similar to that of the parties. In such proceedings, the Prosecutor General 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.

21. In a decision of 3 June 2008 o n another unrelated case ( no. IV. ÚS 180/08 ) , the Constitutional Court observed, among other things, that individuals and legal entities that had filed a petition with the Prosecutor General to lodge an extraordinary appeal had no legal claim to have such an appeal lodged . On the contrary , the Prosecutor General was not under a legal obligation to accommodate the petition. It was within the Prosecutor General ’ s entire discretion to decide whether or not to lodge an extraordinary appeal.

3. Supreme Court ’ s practice concerning extraordinary appeals

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

C. Relevant European texts

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

23. The report was adopted by the European Commission for Democracy through Law ( “the Venice Commission ” ) at its 82 nd Plenary Session (12-13 March 2010).

24. S ection III (9), entitled “Final character of judicial decisions”, 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 that:

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

The report goes on to state :

“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.”

COMPLAINT

25. The applicant complains that the quashing of the final, binding and enforceable judgment in his favour following the extraordinary appeal of the Prosecutor General simply because of a different legal assessment of the case was incompatible with the principle of legal certainty inherent in his rights protected under Article 6 § 1 of the Convention .

In support of his claim, the applicant considered that there was a difference between a simple disagreement with the factual or legal assessment of a case, just as in his own, and major procedural flaws, in which case an extraordinary remedy – an appeal on points of law – was available directly to the party concerned under Article 237 of the CCP.

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

QUESTION S TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention ?

In particular, in view of the Constitutional Court ’ s case-law concerning its jurisdiction and the scope of its review of individual complaints under Article 127 of the Constitution, was the applicant required to assert his Convention complaints before the Constitutional Court under Article 127 of the Constitution ?

2. Having regard to the fact that a final and binding judgment in hi s favour has been quashed by the Supreme Court following an extraordinary appeal on points of law by the Prosecutor General, prompted by a petition by the defendan t, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, but not only, were hi s rights of access to a court and the principles of legal certainty and equality of arms respected?