THIRD SECTION

Application no. 42533/11 PSMA, spol . s r.o . against Slovakia lodged on 6 July 2011

STATEMENT OF FACTS

1. The applicant, PSMA, spol . s r.o ., is a private limited company, which was established under Slovakian law in 1995, and has its registered office in Bratislava. It is represented before the Court by Mr J. Mészáros , a lawyer practising in Bratislava.

A. The circumstances of the case

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

1. Action

2. On 1 June 2006 the applicant company lodged an action against Slovak Radio ( Slovenský rozhlas ) (“the defendant”), the Slovakia ’ s national public-service radio broadcaster, a publicly funded institution with own legal personality, the status of which is regulated by law (at that time Law no. 619/2003 Coll., as amended, presently Law no. 532/2010 Coll., as amended).

3. The applicant company relied on a contract with the defendant of 17 March 1995, under which it had been acting as the defendant ’ s exclusive agent for the sale of broadcasting time for the purposes of advertising in return for a fee. It submitted that the contractual relation with the defendant had soured in 2004 and that the subsequent actions of the defendant had effectively amounted to a rescission of the contract. The applicant company sought an order for payment of the equivalent of some 693,000 euros (EUR) by way of compensation.

4. On 14 May 2007 the Bratislava I District Court ( Okresný súd ) granted the action. It observed that despite having been represented by a lawyer, the defendant had failed to submit any observations in reply and to appear at a hearing without a good excuse. It proceeded to examine the case under Article 101 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”), which allows for an examination on the basis of the elements available in the event of a party ’ s unjustified failure to cooperate.

5. The defendant ’ s appeal ( odvolanie ), in which it had acknowledged the legal basis of the applicant company ’ s claim but had contested its scope, was examined by the Bratislava Regional Court ( Krajský súd ) at a hearing. Following it, on 28 November 2007, the first-instance judgment was upheld.

6. No ordinary appeal lay against the Regional Court ’ s judgment and, upon the service of its copy on the parties, the matter became resolved with the force of a final and binding decision ( právoplatnosť ), on 9 January 2008.

On the expiry of the grace period for voluntary payment, the judgment became enforceable ( vykonateľnosť ), on 12 January 2008.

2. Defendant ’ s constitutional complaint

7. On 10 March 2008 the defendant challenged the Regional Court ’ s judgment by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). Asserting its rights of access to a court and to a fair hearing, the defendant contended that the impugned judgment was grossly arbitrary and contrary to European Union law and that, in the latter respect, the Regional Court had arbitrarily refused to ask the Court of Justice of the European Union for a preliminary ruling.

8. On 3 July 2008 the Constitutional Court ( Ústavný súd ) declared the complaint inadmissible. It held that an u njustified refusal to ask for a preliminary ruling may in certain circumstances give rise to a ground for appealing on points of law ( dovolanie ) under Article 237 (g) of the CCP. As that remedy had not been exhausted, the Constitutional Court lacked jurisdiction to entertain the complaint.

3. Extraordinary review

9. On 25 April 2008 the defendant lodged a petition with the Office of the Prosecutor General requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way o f an extraordinary appeal on points of law ( mimoriadne dovolanie ‑ “extraordinary appeal”).

10. The Prosecutor General decided to accede to the request and, on 23 October 2008, challenged the contested judgments in the Supreme Court ( Najvyšší súd ). He advanced arguments on a number of points of law mainly concerning the validity and legal effects of a notice of termination of the contract by the defendant and the basis and scope of the applicant company ’ s claim in so far as it related to barter sales of the defendant ’ s broadcasting time.

11. Simultaneously, the Prosecutor General applied for a ruling to suspend the enforceability of the impugned judgments pending the outcome of the extraordinary appeal, to which application the Supreme Court acceded on 8 December 2008.

12. Meanwhile, on 21 November 2008, the applicant company had filed observations in reply and it submitted further observations on 3 September 2009.

13. On 12 August 2009 the Supreme Court allowed the extraordinary appeal by quashing the judgments of both the District Court and the Regional Court and remitting the matter to the former for a new examination. In principle, it found that the lower courts had failed adequately to examine the case on the points raised by the Prosecutor General.

14. The Supreme Court ’ s decision was served on the applicant company ’ s lawyer on 22 September 2009. Thereafter and until the present day, the proceedings have been pending at first instance.

4. Final domestic decision

15. On 20 November 2009 the applican t company for its part lodged a complaint with the Constitutional Court, contesting the Supreme Court ’ s decision of 12 August 2009 and relying on its rights of access to a court, equality of arms, adversarial proceedings, legal certainty and fair hearing.

The applicant company argued that the admissibility requirements for the extraordinary appeal had not been met, that in part the extraordinary appeal had been belated and in part it had exceeded the scope of the defendant ’ s petition. In addition, by the mere fact of admitting the extraordinary appeal, the Supreme Court had offended and rendered meaningless the entire preceding process of law in violation of the principle of legal certainty.

The applicant company further argued that in view of the Supreme Court ’ s decision a brand new rehearing of the case was called for although no procedural irregularities of the previous hearing had been established. In addition, the contested decision one-sidedly favoured the defendant and was not susceptible of review on account of lack of reasoning.

16. On 25 November 2010 the Constitutional Court declared the applicant company ’ s complaint inadmissible as being manifestly ill ‑ founded. In so far as the applicant company was aiming at contesting the extraordinary appeal in principle, the Constitutional Court observed that the statutory framework for examination of individual complaints did not allow it to examine the compliance of statutes with the Constitution and international instruments as such. To the extent the applicant company might be understood as wishing to object to any action on the part of the Prosecutor General, no such objection could be entertained because the applicant company had only identified as the defendant of its complaint the Supreme Court. As for the remainder of the complaint, which concerned the Supreme Court, the Constitutional Court found no constitutionally relevant unfairness, arbitrariness or irregularity.

A copy of the Constitutional Court ’ s decision was served on the applicant company on 21 January 2011.

B. Relevant domestic law and practice

1. Code of Civil Procedure

(a) Various provisions

17. The court is to proceed with the examination of a matter even when the parties are inactive. If a properly summ oned party neither appears at a hearing nor asks postponement on a serious ground, the court may hear and decide the case in the absence of that party having regard to the contents of the case-file and evidence already taken (Article 101 § 2).

18. 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

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

20. The Prosecutor General has the pow er to challenge a decision of a court by means of an extraordinary app eal. He or she may do so upon a petition of a party to the proceedings or another person concerned or injured by the decision, provided that the Prosecutor General concludes that the final and binding decision violated the law; provided that the protection of the rights and legitimate interests of individuals, legal entities, or the State so requires; provided that that protection cannot be achieved by other means; and provided that the matter at hand is not excluded from review (Articles 243e § 1 and 243f § 2).

21. 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).

22. 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 (in that respect 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.

23. An extraordinary appeal is to be lodged with the cassation court within one year of the contested judicial decision ’ s becoming final and binding (Article 243g).

24. If the Prosecutor General concludes, upon a petition of a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic damage or other serious irreparable consequence, the extraordinary appeal may be filed even without reasons. The reasons then must be supplied within 60 days of the lodging of the extraordinary appeal with the cassation court, failing which the proceedings are to be discontinued (Article 243h §§ 3 and 4).

The possibility of filing an extraordinary appeal without reasons and of supplying the reasons later is an exception, which was introduced by amendment (Law no. 484/2008 Coll.) enter ing into force on 28 November 2008. Until that date no such exception existed and the extraordinary appeal had to contain reasons (Article 243h § 1).

25. If the extraordinary appeal on po ints of law is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability is to be suspended at the moment when the extraordinary appeal is lodged with the court of cassation (Article 243ha § 1).

The duration of the effect of such a suspension is regulated by Article 243ha § 2, pursuant to which that effect ceases (a) when the request is dismissed or (b) with the decision on the extraordinary appeal, but unless extended by the court of cassation no later than one year from the lodging of the extraordinary appeal with the court of cassation.

This legal regime was also introduced by the amendment entering into force on 28 November 2008 (see above). Under the legal provisions applicable until that date, the enforceability of the contested decision could only be suspended by force of a decision of the cassation court (Article 243, in conjunction with Article 243i § 2, as applicable at the relevant time).

26. A copy of an extraordinary appeal is to be transmitted to the parties to the proceedings for observations and so is, in addition to the Prosecutor General, the decision on it (Article 243i § 1 and Article 243j).

2. The Constitutional Court ’ s practice concerning extraordinary appeals

27. In a decision of 29 October 2003 in an unrelated case no. IV. ÚS 197/03, the Constitutional Court held, inter alia , that the Prosecutor General in proceedings before the cassation court in his or her extraordinary appeal has no standing of a party to the pr oceedings as such, but rather a standing sui generis, similar to that of the parties. In such proceedings, the Prosecutor General does not have any subjective interest of his or her own. The protection from unlawful final and binding decisions, pursued in those proceedings, rather serves general interest.

28. In a decision of 3 June 2008, in an other unrelated case no. IV. ÚS 180/08, the Constitutional Court observed, among other things, that individuals and legal entities having submitted a petition to the Prosecutor General for lodging an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the Prosecutor General was under no legal duty to accommodate the petition. It was within the Prosecutor General ’ s entire discretion to de cide whether or not to lodge an extraordinary appeal.

C. Relevant European texts

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

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

30. In its 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 that:

“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 that:

“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 proce ss, in particular not through a protest of the prosecutor or any other state body outside the time limit for an appeal.”

COMPLAINT

31. Relying on Article 6 § 1 of the Convention, the applicant company raises a number of complaints concernin g the extraordinary appeal as a remedy in general, as well as its repercussions on its specific case.

In particular, the applicant company contends that the extraordinary appeal is not directly available to the parties; that its use falls within the exclusive discretion of an organ of the State, the Prosecutor General, without any judicial supervision; and that the effects of such an appeal are incompatible with the rule of law and the principle of legal certainty.

The extraordinary appeal in the applicant company ’ s case constituted an appeal in disguise on behalf of the defendant without any acceptable justification. It was not admissible on any of the statutory admissibility grounds. None of such grounds had even been invoked by the appellant and the appeal was motivated by nothing but different views as to the substance of the dispute. By allowing that appeal and not even acknowledging the existence of the applicant company ’ s observations in reply, let alone giving any answer to them, the Supreme Court sealed the violation of the applicant company ’ s right to a fair hearing, in particul ar its component of access to a court and equality of arms, and the principles of adversarial proceedings and legal certainty as an element of the rule of law.

QUESTIONS TO THE PARTIES

1. Has the applicant company complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2. Having regard to the fact that a final and binding judgment in its 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 defendant, did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, but not only, were its rights of access to a court and the principles of legal certainty and equality of arms respected?