CASE OF MAJCHRÁK v. SLOVAKIA
Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1958 and lives in Bratislava. 6. On 28 January 1996 the applicant, in his capacity as an architect, concluded a contract with the Customs Directorate of the Slovak Republic (Colné riaditeľstvo Slovenskej republiky) in which he agreed to produce project documentation for a border crossing between Slovakia and Hungary in return for a fee. 7. On 20 April 2000 the Customs Directorate brought a civil action against the applicant for late completion of the documentation, seeking an order for the payment of a contractual penalty as well as late-payment interest on that penalty. 8. On 24 September 2003 the Bratislava V District Court (Okresný súd) dismissed the action, but its judgment was quashed by the Bratislava Regional Court (Krajský súd) following an appeal (odvolanie) by the applicant. At the same time, the case was remitted to the District Court for re-examination. 9. On 6 June 2005 the District Court allowed the action. It found that the applicant and the defendant had agreed on a contractual penalty amounting to 0.1% of the agreed fee per day of delay on the part of the applicant. It also found that the deadline for the applicant to fulfil his obligations under the contract had been 31 July 1997 and that the applicant had not done so until 8 March 1998. The applicant appealed. 10. On 19 October 2005 the Regional Court declared the appeal inadmissible as having been lodged outside the statutory appeal period. It applied a legal fiction under Article 47 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time), pursuant to which the commencement of the appeal period in the given circumstances is determined with reference to the third day after a written copy of the contested decision has been deposited for the appellant at the local post office, irrespective of when the decision is actually received by the appellant (see paragraph 37 below). The applicant challenged the decision of the Regional Court by way of an appeal on points of law (dovolanie) to the Supreme Court (Najvyšší súd). 11. The applicant’s appeal on points of law per se had no suspensive effect and, consequently, the judgment of 6 June 2005 was considered final and binding (see section D on “Enforcement” below). 12. However, on 19 April 2006, the Supreme Court made a separate ruling suspending the effects of the judgment of 6 June 2005 pending the outcome of the appeal on points of law. 13. On 7 December 2006 the Supreme Court, having found that the statutory requirements for applying the above-mentioned legal fiction had not been met, quashed the decision of 19 October 2005 and remitted the applicant’s appeal against the District Court’s judgment of 6 June 2005 to the Regional Court. 14. It was then incumbent on the Regional Court to re-examine the applicant’s appeal against the judgment of the District Court of 6 June 2005. 15. On 20 June 2007 the Regional Court upheld the judgment of 6 June 2005 in so far as the applicant had been ordered to pay the contractual penalty. However, it reversed the ruling that the applicant should pay interest on the contractual fine. It held that a contractual fine and latepayment interest had both the nature of a sanction and that cumulating these two sanction mechanisms was excluded by the nature of things. 16. A written version of the Regional Court’s judgment of 20 June 2007 was received by the District Court on 12 July 2007. It was then incumbent on the District Court to ensure that the judgment was served on the parties in person (do vlastných rúk). 17. According to the law, once the judgment of 20 June 2007 had been served on both parties, the matter was resolved with final and binding effect (právoplatnosť). 18. The actual service of the written version of the judgment of 20 June 2007 was carried out as follows: On 23 and 24 July 2007 the postal service was unable to reach the applicant’s lawyer. Accordingly, on the latter date, a written version of the judgment was deposited at the local post office and a notice to that effect was left in her mailbox. On 24 July 2007 the judgment was served on the Customs Directorate. On 7 August 2007 the applicant’s lawyer collected the applicant’s copy of the judgment from the post office. 19. As to the effective service of the judgment of 20 June 2007 on the applicant, the Government have submitted – and it has not been disputed by the applicant – that it occurred on 27 July 2007, by virtue of the legal fiction (see paragraph 10 above and paragraph 37 below), three days after the deposition of the judgment at the local post office (see the preceding paragraph). 20. The Government have also submitted – this has not been disputed by the applicant either – that the judgment actually became final and binding on the day of its effective service on the last of the parties, that is to say the applicant, on 27 July 2007. 21. On 7 September 2007, on the applicant’s request, the District Court stamped (doložka právoplatnosti) his copy of the judgment of 6 June 2005 certifying that, together with the Regional Court’s judgment of 20 June 2007, it had become final and binding on “28 July 2005”. 22. On 25 September 2007, the District Court provided the Constitutional Court (Ústavný súd) on its request (see paragraph 25 below), with a different copy of the judgment of 6 June 2005 with a similar stamp certifying that, together with the judgment of the Regional Court of 20 June 2007, it had become final and binding on 24 July 2007. 23. The applicant then lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). As to the date of commencement of the two-month period for lodging the complaint (see paragraph 34 below), the applicant took as decisive the date stamped on his copy of the judgment of 6 June 2005, that is to say “28 July 2005” (see paragraph 21 above), assuming that the reference to year 2005 was an obvious typographical error actually meaning 2007, and submitted his stamped copy of that judgment to the Constitutional Court. Accordingly, the applicant dated and mailed his complaint on 24 and 25 September 2007, respectively. The complaint was received at the Constitutional Court on 26 September 2007. 24. The applicant relied on Article 6 § 1 of the Convention and challenged the Regional Court’s judgment of 20 June 2007 as being contrary to his right to a fair hearing and the general prohibition of discrimination. In substance, the applicant contested the assessment of the facts and the application of the law by the ordinary courts. 25. On 6 December 2007 the Constitutional Court declared the complaint inadmissible. It noted that it had procured of its own initiative a copy of the contested decisions with a stamp concerning their final and binding effect. This stamp indicated that the matter had been resolved with final and binding effect on 24 July 2007 (see paragraph 22 above). As the applicant’s constitutional complaint had only been mailed on 25 September 2007, it had been lodged outside the two-month time-limit laid down in section 53(3) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended) (see paragraph 34 below). 26. The applicant subsequently complained to the President of the Constitutional Court that, according to his stamped copy, the challenged decisions had become final and binding on 28 July 2007, the mention of the year 2005 (see paragraph 21 above) being an obvious typographical error actually meaning 2007. He had lodged his constitutional complaint on 25 September 2007 and had therefore met the deadline. 27. In a letter of 25 April 2008 the President of the Constitutional Court notified the applicant that the two-month time-limit for filing his constitutional complaint had commenced on 24 July 2007 when the contested decisions had become final and binding. It had accordingly ended on 24 September 2007. The applicant’s complaint had only been mailed on 25 September 2007 and had therefore failed to meet the deadline. Nevertheless, if the applicant had sustained any damage as a result of the incorrect information in the stamped copy he had received, it was open to him to claim compensation under the State Liability Act (Law no. 514/2003 Coll., as amended). 28. On 24 January 2006 a lawyer lodged a petition on behalf of the Customs Directorate with a judicial enforcement officer (súdny exekútor) for enforcement of the judgment of 6 June 2005 against the applicant. 29. The enforcement proceedings were first authorised, but eventually discontinued in view of the Supreme Court’s judgment of 7 December 2006 (see paragraph 13 above). 30. Nevertheless, on 11 May 2005, while the enforcement was still pending, the District Court ordered the applicant to pay the court fees for objections (námietky) that he had lodged earlier. 31. On 31 August 2007 the Regional Court upheld the District Court’s decision of 11 May 2005 following the applicant’s appeal. 32. On 28 February 2008 the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which the applicant had relied on Articles 6 § 1 and 13 of the Convention and had challenged the decision on fees for his objections as being arbitrary and contrary to his rights to a fair hearing and an effective remedy. The Constitutional Court found that the applicant’s duty to pay the court fees had its legal basis in section 5(1) of the Court Fees Act and that the contested decision had been legally and factually correct. 33. Article 127 of the Constitution, subsumed under Section (Oddiel) One (dealing with Judicial Power) of Part (Hlava) Seven (dealing with the Constitutional Court), provides: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 34. Section 53(3) of the Constitutional Court Act provides that a complaint to the Constitutional Court must be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the complainant’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a reasonable opportunity to become aware of them. 35. Under section 31a, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure are to be applied accordingly in proceedings before the Constitutional Court, except where otherwise provided or where the nature of the matter at hand precludes their application. 36. The service of summonses and other documents is regulated by Articles 45 et seq. of the Code of Civil Procedure. Documents are to be served in person if so provided by statute or so ordered by a court (Article 47 § 1). 37. If the addressee of a document to be served in person cannot be reached, even though he or she stays at the address provided, the deliverer must notify the addressee in an appropriate manner when a new attempt at service takes place. If the new attempt at service fails, the deliverer must deposit the document at a post office or municipal office and advise the addressee accordingly in an appropriate manner. If the addressee does not collect the document within three days of its deposition, the last day of that period is deemed to be the date of effective service, irrespective of whether the addressee has actually learned of the deposition (Article 47 § 2, as applicable at the relevant time). 38. The relevant provisions of the State Liability Act are summarised, for example, in the Court’s judgment in the case of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 30-35, 12 June 2012).