BENACKOVA v. SLOVAKIA
Inadmissible
Nicolas Bratza
The applicant, Mrs Anna Beňačková, is a Slovakian national, who was born in 1947 and lives in Bratislava. The facts of the case, as submitted by the applicant, may be summarised as follows. On 24 June 1997 a person sued the applicant for defamation before the Bánovce nad Bebravou District Court. On 15 April 1998 the plaintiff extended his action. He claimed that the applicant should be ordered to abstain from alleging that he had stolen objects which formed part of his personal belongings and which were kept by the applicant. The plaintiff further claimed that the applicant should apologise for her above statements and that she be ordered to pay him 10,000 Slovakian korunas (SKK) in compensation for non-pecuniary damage resulting from the interference with his personality rights. On 13 May 1998 the applicant requested the exclusion of the District Court judge dealing with the case with reference to the conduct of the latter. On 5 August 1998 the Trenčín Regional Court decided that the District Court judge was not biased. On 24 September 1998 the Bánovce nad Bebravou District Court granted the plaintiff’s action. The applicant was ordered to revoke her statement that the plaintiff had stolen the property in question, to abstain from such statements in the future and to apologise in writing to the plaintiff. The District Court further decided that the applicant had to pay SKK 10,000 to the plaintiff in compensation for non-pecuniary damage and to reimburse the plaintiff’s costs amounting to SKK 2,400. On 24 November 1998 the applicant appealed. She stated that the judgment had been served on her on 9 November 1998. On 14 December 1998 the applicant submitted the reasons for her appeal. On 30 March 1999 the Trenčín Regional Court rejected the appeal on the ground that it had been lodged belatedly. The decision stated, with reference to the relevant provisions of the Code of Civil Procedure, that the first instance judgment was to be considered as having been served on 26 October 1998, that is on the third day after it had been deposited at the post office. The Regional Court noted that the deposition of the judgment at the post office, of which the applicant was notified in writing, had been preceded by two unsuccessful attempts to serve it on the applicant in person at her address. On 1 June 1999 the applicant filed an appeal on points of law. She relied on Section 237(f) of the Code of Civil Procedure and argued that the Regional Court’s conclusion concerning the date of service of the first instance judgment was erroneous. The applicant further requested that she should be exempted from the obligation to pay the costs of the proceedings concerning her appeal on points of law and that a lawyer should be assigned to her by the court. She explained that she was handicapped and that her only income was an invalidity pension amounting to SKK 4,724 a month. The applicant concluded that her financial and social situation did not allow her to incur any costs in the context of the proceedings. On 30 July 1999 the Bánovce nad Bebravou District Court exempted the applicant from the obligation to pay the court fees in respect of the proceedings on her appeal on points of law. It further dismissed her request that a lawyer be assigned to her. In its decision the District Court noted that the court fee due by the applicant amounted to SKK 2,400, that is approximately a half of her monthly income. The court therefore considered it justified to exempt the applicant from the obligation to pay it. As to the applicant’s request that a lawyer be appointed to represent her, the District Court established, with reference to the relevant regulations, that an advocate was entitled to charge the applicant SKK 1,400 for representing her in the proceedings on her appeal on points of law. It held that the applicant could afford to pay that sum and that her monthly income would in such a case still remain over the statutory minimum which then corresponded to SKK 3,230. On 2 September 1999 the applicant appealed. She claimed that her living costs and expenditures on medicaments did not allow her to pay the fees of a lawyer. On 31 January 2000 the Trenčín Regional Court rejected the appeal on the ground that it had been lodged out of time. On 6 April 2000 the applicant filed an appeal on points of law against the Regional Court’s decision of 31 January 2000. She argued that she had appealed in time. The applicant also claimed that she should be exempted from the obligation to pay the court fees in respect of her appeal on points of law and that an advocate should be appointed to represent her. On 30 May 2000 the Supreme Court invited the applicant, with reference to Section 241 (1) of the Code of Civil Procedure and to the Bánovce nad Bebravou District Court’s above decision of 30 July 1999, to appoint a lawyer within five days. The letter further stated that the proceedings would be discontinued in the event that the applicant failed to comply with the request. The applicant received the Supreme Court’s letter on 1 June 2000, and on 4 June 2000 she replied that she could not comply with the request within the time-limit fixed as she was to start a cure in the Piešťany spa as from 6 June 2000. The applicant further stated that she did not know when the cure would end. A certificate attached to the applicant’s letter indicated that the cure was to last twenty-one days as from 6 June 2002. On 27 June 2000 the Supreme Court discontinued the proceedings on the applicant’s appeals on points of law. The decision stated that the applicant had been notified about the dismissal of her request for an advocate to be assigned to her by the District Court on 9 March 2000. Accordingly, she had had enough time to appoint a lawyer of her own choice or, as the case might be, to ask the Bar Association or the Chamber of Commercial Lawyers to assign a lawyer to her. The Supreme Court concluded that the applicant’s conduct indicated that she had no genuine interest in complying with the formal requirements for her appeals on points of law to be proceeded with. In a letter dated 28 June 2000 and sent on 30 June 2000 the applicant asked the president of the Bar Association to assign a lawyer to her in the proceedings on her appeals on points of law. She explained that she was handicapped and indigent. On 2 August 2000 the vice-president of the Bar Association replied to the applicant, with reference to Section 15 (3) of the Bar Act of 1990, that an advocate could be assigned only to persons who were denied legal assistance. The letter further stated that the applicant had not shown that advocates had refused to represent her. On 20 September 2000 the applicant again requested that the president of the Bar Association assign a lawyer to her. On 17 October 2000 the vice-president of the Bar Association reiterated the position set out in her letter of 2 August 2000. On 21 May 2001 the applicant asked the Bar Association to assign a lawyer to her in the proceedings on her appeal on points of law against the Regional Court’s decision of 31 January 2000. She explained that she was indigent and that her mobility was reduced. The applicant further stated that she would not contact an advocate directly, and that she considered indecent and discriminatory the requirement that she should show that three advocates had refused to represent her prior to addressing her request to the Bar Association. The applicant reiterated her request on 27 July 2001. On 1 February 2000 an enforcement officer informed the applicant that proceedings had been brought with a view to enforcing the above District Court’s judgment of 24 September 1998. The applicant filed an objection to the enforcement. She argued that it had no legal ground as she had not offended the plaintiff. The applicant further contested the costs of the enforcement. On 30 March 2000 the Bánovce nad Bebravou District Court dismissed the applicant’s objection to the enforcement. It found that the applicant still owed the sum in question, and there existed no impediment to the enforcement. The District Court further found that the applicant’s objection to the costs of the enforcement was justified. On 11 December 2001 the enforcement officer issued an order under which the sum due by the applicant was to be withdrawn from the applicant’s invalidity pension. Subsequently the order was quashed as the costs of the enforcement had not been determined in it correctly. On 11 March 2002 a new enforcement order was issued. The sum owed by the applicant has been enforced by monthly instalments of SKK 2,002 deducted from her invalidity pension. The applicant was informed that the sum which had already been enforced under the above order of 11 December 2001 would be deducted from the sum due by her. On 10 April 2002 the applicant requested that the enforcement proceedings be discontinued. She argued that the costs of the enforcement had been indicated erroneously in the order of 11 March 2002. On 27 May 2002 the applicant submitted to the District Court, at the latter’s request, documents concerning her health. On 24 June 2002 the District Court requested the applicant to inform it whether she had apologised to the plaintiff and abstained from further defamatory statements in his respect as ordered by the judgment of 24 September 1998. On 10 July 2002 the applicant informed the court that she had sent the plaintiff a registered letter of apology. The applicant further pointed out that the above District Court’s letter of 24 June 2002 had been erroneously sent to her mother’s place in Bánovce nad Bebravou and not to her permanent address in Bratislava. In a separate letter of 10 July 2002 the applicant complained to the Minister of Justice that the Association of Enforcement Officers had failed to examine her complaint about the enforcement officer dealing with her case. Section 30 (1) provides that courts may appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Section 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of the party’s interests so requires. Pursuant to Section 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court. Section 241 (1) provides, inter alia, that in proceedings on an appeal on points of law the plaintiff has to be represented by an advocate or a commercial lawyer unless he or she has legal qualification. Section 15 (1) of the Bar Act (Zákon o advokácii) of 1990 provides that everybody has the right to legal assistance and can ask any advocate for it. Paragraph 2 of Section 15 provides that an advocate is entitled to refuse legal assistance to a person only for serious reasons permitting the advocate to conclude that he or she cannot provide such assistance in an appropriate manner. This does not apply to cases when an advocate was assigned to represent a person, for example under Section 30 of the Code of Civil Procedure. An advocate shall explain the reasons for which he or she refused to provide legal assistance to a client. The Bar Association shall examine whether such a refusal was justified. Under paragraph 3 of Section 15, a person whose request for legal assistance has been turned down can ask the Bar Association to appoint an advocate to represent him or her. Section 19 (3), as in force since 1 December 1999, provides that citizens are entitled to legal assistance at a reduced cost or free of charge when it is justified by the client’s personal or material situation or by other particular reasons.