THIRD SECTION

Application no. 16639/11 Dušan ĎURĎOVIČ and Mira TRANČÍKOVÁ against Slovakia lodged on 28 February 2011

STATEMENT OF FACTS

The applicants are spouses. The first ap plicant, Mr Dušan Ďurďovič is a Czech national who was born in 1942 and lives in Hodonín , the Czech Republic. The second applicant, Ms Mira Trančíková is a Slovak national who was born 1939 and lives in Bratislava. They are represented before the Court by Mr J. Holič , a lawyer practising in Bratislava.

A. The circumstances of the case

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

1. Proceedings before the ordinary courts

On 2 October 1997 the applicants jointly filed a civil action to the Stará Ľubovňa District Court. They claimed that real property which had been included in the assets of a bankrupt company was in their co-ownership.

On 16 August 2006 the District Court dismissed the action. With reference to the documents before it and judicial decisions delivered earlier the court established that the real property in issue had been transferred to the company which had later become bankrupt. The judgment was served on the applicants on 14 February 2007.

The applicants appealed on 28 February 2007. They argued, in particular, that the first-instance court had failed to take evidence as suggested by them, with a view to establishing that the property in issue had not been actually transferred to the company in issue. The applicants also maintained that the case should have been assigned to a judge dealing with civil cases instead of a judge deciding on commercial disputes.

On 24 April 2008 the Prešov Regional Court upheld the first-instance judgment. It found that the applicants had failed to show that the real property had been erroneously included in the assets of the bankrupt company in the context of the bankruptcy proceedings. Since the administrator in bankruptcy had included the property in the assets of the company in accordance with the law, the applicants could not be successful with their subsequent civil action for determination of ownership of that property.

On 9 July 2008 the applicants lodged an appeal on points of law. They argued that there had been defaults in the proceedings before the court of appeal which rendered the appeal on points of law admissible pursuant to Article 237 (a), (d) and (f) of the Code of Civil Procedure.

In particular, they alleged that the appeal court had determined the case without hearing the parties and establishing the relevant facts. Their earlier consent that the appeal court proceed with the case in their absence at the hearing scheduled for 24 April 2008 did not mean that they accepted the determination of the merits without the parties having been heard. The applicants further argued that the case had been dealt with as a commercial dispute whereas it should have been determined by judges dealing with civil-law cases.

On 30 November 2009 the Supreme Court rejected the appeal on points of law. It held that the reasons for its admissibility as invoked by the applicants could not be accepted. In particular, the Supreme Court noted that the applicants had notified the Regional Court that they would not appear on 24 April 2008, and that they agreed with the case being proceeded with in their absence. The fact that the appeal court had not quashed the first instance judgment as requested by them could not affect the position.

The Supreme Court further held that in the proceedings complained of the situation described in Article 237 (a) of the Code of Civil Procedure had not obtained, and that the applicants had not shown that a final decision on the matter had been given earlier within the meaning of Article 237 (d) of the Code of Civil Procedure.

2. Proceedings before the Constitutional Court

On 18 February 2008 the applicants complained to the Constitutional Court about delays in the proceedings before the Stará Ľubovňa District Court.

On 18 September 2008 the Constitutional Court dismissed the complaint. With reference to its practice it noted that the District Court no longer dealt with the case at the time of introduction of the constitutional complaint.

On 8 March 2010 the applicants complained of a breach of Article 6 § 1 of the Convention in proceedings leading to the District Court ’s judgment of 16 August 2006, the Regional Court ’ s judgment of 24 April 2008 and the Supreme Court ’ s decision of 30 November 2009.

For reasons invoked in their appeal and appeal on points of law, they complained that their right to a fair hearing by a tribunal established by law had been breached. They also complained that the Supreme Court had not allowed them to react to the defendants ’ comments on their appeal on points of law.

The Constitutional Court declared the complaint inadmissible on 23 September 2010. As the District Court ’ s judgment had been reviewed by the Regional Court upon the applicant ’ s appeal, the Constitutional Court held that it lacked power to examine the alleged shortcomings in the first-instance proceedings.

As to the Regional Court ’ s judgment, the applicants had failed to submit their complaint within the statutory time-limit of two months. The fact that they had sought redress by means of an appeal on points of law could not affect the position as the Supreme Court had rejected that remedy as being inadmissible.

Finally, as to the cassation proceedings, the Constitutional Court found no appearance of unfairness in the way in which the Supreme Court had dealt with and decided on the applicants ’ appeal on points of law. The Supreme Court ’ s failure to let the applicants comment on the other party ’ s observations on their appeal on points of law did not render the proceedings unfair in the circumstances.

B. Relevant domestic law and practice

1. The Code of Civil Procedure

Under Article 236 § 1, an appeal on points of law is available against final decisions of a court of appeal if the law so provides. Pursuant to Article 236 § 2, an appeal of law may not be filed exclusively against the reasons for the appeal court ’ s decision.

Article 237 allows for an appeal on points of law against appeal courts ’ decisions where:

(a) the courts decided in a matter outside their jurisdiction;

(b) a person who acted as a party to the proceedings lacked the legal capacity to be a party to court proceedings;

(c) a party to the proceedings lacked the capacity to act in court proceedings and was not duly represented;

(d) the courts decided on a matter which had been res iudicata or which had already been pending in other proceedings ( lis pendens );

(e) the proceedings could only commence by way of an action and no such action was actually filed;

(f) the courts prevented a party to the proceedi ngs from acting before them;

(g) the case was decided upon by an excluded judge or where the composition of the court was incorrect.

Other relevant provisions governing appeals on points of law are summed up in Ringier Axel Springer Slovakia, v. Slovakia , no. 41262/05 , §§ 63-68, 26 July 2011.

2. Constitutional Court ’ s practice

In a number of decisions the Constitutional Court held that it lacks power to entertain complaints about unfairness of civil proceedings based on arguments which may be subsumed under Article 237 (f) of the Code of Civil Procedure and where the plaintiff had failed to first seek redress by means of an appeal on points of law (e.g. decisions nos. IV. ÚS 209/08 of 31 July 2008, II. ÚS 50/09 of 4 February 2009, II. ÚS 319/09 of 29 September 2009 or III. ÚS 50/2010 of 2 February 2010).

As from 2010 the practice of the Constitutional Court has evolved as regards examination of complaints about proceedings before ordinary courts where the plaintiff, at the same time, filed a n appeal on points of law and a constitutional complaint in respect of the appeal court ’ s judgment.

Thus in proceedings file no. III. ÚS 114/201 0 the plaintiff alleged a violation of his procedural rights and property rights by virtue of judicial decisions at first instance and on appeal. In parallel to his constitutional complaint he lodged an appeal on points of law relying on Article 237 (f) of the Code of Civil Procedure.

On 23 March 2010 the Constitutional Court declared the complaint inadmissible on the ground that the plaintiff had asserted his rights by way of an appeal on points of law, and since those proceedings were still pending. At the same time, however, the Constitutional Court made a pronouncement concerning the application of the statutory two-month time-limit for lodging a fresh constitutional co mplaint in the eventuality of a rejection of the complainant ’ s appeal by the Supreme Court. With reference to the fundamental right to judicial protection and the Court ’ s judgment in the case of Zvolský and Zvolská v. the Czech Republic (no.46129/99, §§ 51, 53 and 54, ECHR 2002 ‑ IX), the Constitutional Court held that, in addition to the decision of the court of cassation, the time-limit would be considered as having been respected also as regards the previous decision of the court of appeal.

Subsequently the Constitutional Court has held that plaintiffs are not required to submit an appeal on points of law and a constitutional complaint in parallel as the latter remedy cannot be rejected as having been filed out of time as regards the appeal court ’ s decision even in cases where the Supreme Court rejects that person ’ s appeal on points of law as being inadmissible (e.g. decision file no. IV. ÚS 5/2013 of 10 January 2013).

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that their right to a fair hearing within a reasonable time was breached in the civil proceedings concerning their action.

2. The applicants further allege a breach of Article 1 of Protocol No. 1 with reference to the outcome of the proceedings on their claim.

QUESTIONS TO THE PARTIES

Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, is the way in which the Constitutional Court addressed their complaint about the proceedings leading to the Regional Court ’ s judgment of 24 April 2008 compatible with the applicants ’ right of access to a court (see also, mutatis mutandis , Stavebná spoločnosť TATRY Poprad , s.r.o . v. Slovakia , no. 7261/06 , §§ 35-36 and 45, 3 May 2011 and Zborovský v. Slovakia , no. 14328/08, §§ 51-54, 23 October 2012 )?