CASE OF INDRA v. SLOVAKIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 with regard to impartiality;Not necessary to examine Art. 6-1 with regard to fairness;Not necessary to examine under Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Nicolas Bratza
9. The applicant was born in 1931 and lives in Bratislava. 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. On 17 June 1982 the applicant was served a notice of dismissal from job under Article 46 § 1 (f) of the Labour Code for an especially serious breach of work discipline in that he had been absent from his work for several days without an excuse. 12. On 18 June 1984 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) rejected the applicant’s request for a judicial ruling declaring the dismissal null and void. 13. On 19 November 1985 a threejudge Chamber of the Bratislava City Court (then Mestský súd, at present Krajský súd) dismissed the applicant’s appeal and upheld the judgment of 18 June 1984. The Chamber deciding on the appeal included judge S. 14. On 12 February 1993 the applicant and his wife took civil proceedings against the legal successor of his former employer before the Bratislava I District Court. They sought the applicant’s rehabilitation under the Extra-Judicial Rehabilitations Act (Law no. 87/1991 Coll. - Zákon o mimosúdnych rehabilitáciách) in respect of his dismissal in 1982. 15. In a judgment of 27 September 1994, following a hearing held on the same day, the Bratislava I District Court considered that the action aimed at obtaining a judicial order to the defendant to issue a formal confirmation that the applicant had been dismissed in 1982 for politically motivated reasons and in violation of fundamental human rights and freedoms within the meaning of section 21 (1) of the Extra-Judicial Rehabilitations Act. The court rejected the action as being unsubstantiated. 16. On 6 December 1994 the applicant and his wife appealed to the Bratislava City Court and, on 10 January 1995, they supplemented the appeal (odvolanie). They argued that the District Court had misinterpreted the action in that it had not been aimed at obtaining a judicial order against the defendant, but at obtaining a declaratory judgment to the effect that the applicant’s dismissal had been based on the grounds referred to in section 21 (1) of the Extra-Judicial Rehabilitations Act. They further complained that the District Court had overlooked the fact that the action had also been brought by the applicant’s wife. 17. On 28 February 1995 the Bratislava City Court quashed the District Court’s judgment of 27 September 1994 and remitted the case to the District Court, holding that the latter had failed to determine the action insofar as it had been brought by the applicant’s wife. 18. On 31 October 1995, following a hearing held on the same day, the District Court again dismissed the action after examining testimonies of the parties, the applicant’s personal file with his former employer and the casefile concerning the applicant’s proceedings in the 1980s. The District Court found it established that the applicant had been dismissed from his work in 1982 for unauthorised absence for several days, i.e. an especially serious breach of work discipline which had had no political subtext. In so far as the applicant relied on section 21 § 1 (c) of the Extra-Judicial Rehabilitations Act, he had failed to prove that his dismissal had been for reasons of political persecution or in violation of generally recognised human rights and freedoms. The District Court finally found that the applicant’s wife had no cause of action in the case, in that the dismissal did not directly concern her. 19. On 25 January 1996 the applicant and his wife filed an appeal with the City Court and on 2 February 1996 they submitted further particulars of the appeal. They argued that the District Court had misinterpreted the action, incorrectly interpreted and assessed the facts and arbitrarily dismissed the action. 20. On 11 April 1996, following a hearing of the appeal held on the same day, the City Court upheld the District Court’s judgment of 31 October 1995 and granted leave for an appeal on points of law to the Supreme Court. It held that the District Court had adequately established the facts of the case and concurred with its factual and legal conclusions. 21. On 6 August 1996, through his lawyer, the applicant filed an appeal on points of law (dovolanie) with the Supreme Court. He argued that the lower courts had erred in their determination of the facts and law in his case. 22. In reply to the appeal on points of law, the defendant filed observations which however the courts did not transmit to the applicant. 23. On 28 November 1996 a three-judge Chamber of the Supreme Court rejected the appeal on points of law after deliberating in camera. As to the defendant’s observations in reply to the appeal on points of law, the Supreme Court noted that the defendant had invited the Supreme Court to reject that appeal as unfounded since the lower courts’ decisions had been correct and the appeal had produced no new relevant information. The Supreme Court found that the District Court and the City Court had adequately established the relevant facts and fully endorsed their factual and legal conclusions. The Supreme Court further discerned no procedural or other flaws within the meaning of Articles 237 and 241 § 2 of the Code of Civil Procedure. The Supreme Court Chamber included judge S. who had been a member of the threejudge Chamber of the City Court that, on 19 November 1985, had rejected the applicant’s appeal in the proceedings on his dismissal in 1982. No appeal lay against the Supreme Court’s judgment. 24. The purpose of the Rehabilitation Act, as set out in section 1 (1), is to endeavour to mitigate the consequences of certain injustices and property losses occurring between 25 February 1948 and 1 January 1990 by acts falling within the sphere of civil law and labour law, and by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights. 25. Pursuant to section 21 (1), legal acts terminating a person’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void. Under its letter (c) this provision applies, among others, to situations where the person concerned was dismissed under Article 46 § 1 of the Labour Code (Law no. 65/1965 Coll.), as amended by amendment no. 153/1969 Coll., on the ground that he or she had acted in violation of the socialist social order and, therefore, lacked the confidence requisite for continuing in his or her function or position. 26. Section 22 (1) provides that the former employer or its legal successor shall issue, at the request of the person concerned, a certificate that the latter’s contract of employment was terminated for reasons mentioned in section 21 (1). Paragraph 3 of this section entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within three months. 27. The rules concerning disqualification of judges are laid down in Articles 14 to 17. Under Article 14 § 1 judges are disqualified from dealing with a case if there may be doubts about their impartiality in relation to the subjectmatter of the case, the parties to the proceedings or the parties’ legal representatives. 28. Pursuant to Article 15 § 1, as soon as a judge learns of facts disqualifying him or her from dealing with a case, he or she is to notify the president of the court accordingly without any delay. 29. Under Article 15 § 2, parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case. It further confers a right on the parties to civil proceedings to state their views if the disqualification of a judge is being considered. 30. A decision on removal of a judge from a case is to be taken by a Chamber of the higher instance court (Article 16 § 1). 31. Legal representation in civil proceedings by a lawyer (advokát) is addressed in Article 25. Pursuant to its paragraph 2 the lawyer is obliged to make effective use of all available legal means in the interest of the party whom he or she represents. 32. The procedure in respect of appeals on points of law is defined in Part Four, Chapter Three of the Code. 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. 33. Pursuant to Article 237 an appeal on points of law is admissible against any decision of the appellate court where: (a) the decision concerns a subject-matter which falls outside the jurisdiction of courts, (b) a person acting as a party to the proceedings lacked capacity to be a party to court proceedings, (c) a party to the proceedings lacked procedural capacity and was not duly represented, (d) the same matter has been earlier determined by a final decision or if other proceedings in the same matter started earlier, (e) no motion to institute proceedings has been filed despite the fact that such a motion was required by the law, (f) a party has been prevented, by the appellate court’s conduct, from acting before the court, (g) the case was decided upon by a disqualified judge or the court’s composition was incorrect. 34. Legal representation in appeals on points of law is mandatory (Article 241 § 1). 35. In accordance with Article 241 § 2 an appeal on points of law may only be based on the following grounds: (a) flaws in the proceedings as set out in Article 237 [of the Code of Civil Procedure], (b) other flaws in the proceedings which resulted in a wrong decision on the merits, (c) a court’s decision made on the basis of a factual finding which, to a substantial extent, is not supported by the evidence taken, (d) a court’s decision based on an erroneous legal assessment of the matter. 36. The scope of the Supreme Court’s examination of an appeal on point of law is in principle limited to the grounds of appeal as submitted by an appellant (Article 242 § 1). Except for the flaws listed under Article 237 and flaws that have resulted in an incorrect decision on the merits, the Supreme Court does not review ex officio any procedural flaws that have not been complained of by an appellant. 37. When determining an appeal on points of law, the Supreme Court in principle takes no evidence (Article 243a § 2). 38. The Supreme Court dismisses the appeal on points of law if it finds that the decision of the court of appeal is correct. Otherwise it quashes the appellate decision (Article 243b § 1).