CASE OF VISKUPOVA AND OTHERS v. SLOVAKIA
Violation of Art. 6-1
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicants, Ms Viskupová, Ms Hermansová, Mr Stankovič and Ms Pichňová, were born in 1948, 1947, 1945 and 1952 respectively. They are siblings. The applicants live in Bratislava (Slovakia), and Ms Hermansová also lives in Voorschoten (the Netherlands). 6. The applicant Mr Stankovič owns a share in a plot of land. The applicants each have a share in the estate of their late mother, who owned the remaining share in that plot. The proceedings for the division and distribution of the estate would appear to be still pending. 7. The plot has been de facto occupied by the State in the guise of a State-owned enterprise (“the defendant”); the applicants have been seeking compensation for this occupation (see below). 8. The status and functioning of the defendant were regulated by the State-owned Enterprises Act (Law no. 111/1990 Coll., as amended). 9. On 1 November 1991 the defendant went into liquidation. According to a publicly available official source, the liquidation process is ongoing. 10. On 15 November 1996 and 1 July 1998 amendments (Laws nos. 317/1996 Coll. and 166/1998 Coll. respectively) to the State-owned Enterprises Act entered into force. They provide, inter alia, that the liquidator of a liquidated State-owned enterprise has an obligation to publish in the Commercial Journal (Obchodný vestník) an announcement on commencement of the liquidation process and to invite those concerned to register their claims within a given period, on pain of extinction of those claims. They also provide that, by virtue of the commencement of the liquidation process, any enforcement proceedings against the State-owned enterprise in question are stayed. For details, see paragraphs 29 to 34 in the “Relevant domestic law” below. 11. On 21 October 1998 the Čadca District Court (Okresný súd) ruled that the defendant was to pay a sum of money to Mr Stankovič and to the applicants’ mother’s estate by way of compensation for unjustified enrichment arising from the defendant’s use of the property without valid title. 12. The defendant’s appeal having been declared inadmissible, the judgment became final and binding (právoplatnosť) on 15 November 1999. 13. Between 2000 and 2005 the applicants contacted the liquidator of the defendant, the municipality where the defendant has its seat and the mayor of that municipality, the Supreme Auditing Office, the National Property Fund, the Ministry for Administration and Privatisation of National Property, the Ministry of Finance, the Ministry of the Interior, the police and other public institutions with numerous requests and complaints, seeking to recover the adjudicated amounts. These efforts included, in particular, a letter of 10 May 2000 to the liquidator, formulated as a final warning prior to a petition for enforcement, demanding compliance with the judgment in the applicants’ favour (see paragraph 11 above). However, they met with no success. 14. The applicants also made several submissions to the courts seeking judicial enforcement of the judgment. These resulted, first, in a decision (uznesenie) of the District Court of 24 June 2002 to reject the applicants’ claim, on the ground that it was unclear and, despite the court’s written request, the applicants had failed to provide further and more specific details. 15. The applicants’ subsequent motion of 20 February 2003 resulted in the opening of enforcement proceedings against the defendant. 16. The District Court took a number of steps to establish the nature and details of the applicants’ motion. The applicants’ challenge to all of judges of the District Court, alleging bias, was also examined and dismissed. 17. As established by the Constitutional Court in its decision of 10 May 2006 (see paragraph 21 below), there are file-notes in the District Court’s case file, dated 5 and 13 May 2005, indicating (i) that the case file was to be submitted to the judge for determination as to whether the proceedings could continue in view of the provision in the amendments referred to in paragraph 10 above that the proceedings be stayed, and (ii) that the proceedings were to be stayed as they interfered with the functions of the liquidator. On 12 July 2005, however, the District Court invited the liquidator to report on the progress of the liquidation. 18. The proceedings were eventually discontinued on 24 May 2006, in the procedural form of a decision (uznesenie), on the ground that, despite the court’s written request, the applicants had failed to request the transfer of the proceedings to a judicial enforcement officer (exekútor) following the entry into force on 1 September 2005 of an amendment (Law no. 341/2005 Coll.) to the Code of Civil Proceedings (Law no. 99/1963 Coll., as amended – “the CCP”), under which enforcement of ordinary claims could no longer be carried out by either the courts or judicial enforcement officers, but only by the latter (for details see paragraphs 25 and 26 in the “Relevant domestic law” below). No appeal lay against the decision. 19. Meanwhile, on 25 January 2006, the applicants had filed a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) (see paragraph 23 below) with the Constitutional Court (Ústavný súd). They contested the length of the proceedings in their enforcement petitions and also invoked, in substance, their right of access to a court. 20. The applicants’ complaint was directed against the District Court; its President filed observations in reply on 22 February 2006. It was submitted that under the amendments referred to in paragraph 10 above, there was a statutory bar on the enforcement proceedings, on account of which the District Court could not have taken any action at all in the matter. 21. On 10 May 2006 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded. The Constitutional Court observed that, pursuant to section 15c(8) of the State-owned Enterprises Act, proceedings for the enforcement of financial claims against State-owned enterprises in liquidation were stayed by operation of law. This provision also applied, by way of implication, to enforcement proceedings under the CCP. Creditors of such claims should pursue their claims in the liquidation procedure under section 15c(2)(a) of that Act and it was the liquidator’s responsibility under section 15c(2)(g) to settle their claims. The applicants had thus chosen an incorrect course of action by seeking enforcement of the judgment of 21 October 1998 as opposed to registering their claim under that judgment with the defendant’s liquidator. The applicants ought to have known the applicable rules. 22. The Constitutional Court concluded that, for the above-mentioned reasons, there had not been any undue delays in the proceedings before the District Court and that there had been no infringement of the applicants’ right of access to a court. 23. Article 127 provides: “1. The Constitutional Court shall decide 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 a 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 that 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 a person whose rights under paragraph 1 have been violated.” 24. Until 31 August 2005, if a judgment debtor failed to comply with his or her adjudicated obligation, the creditor had two essentially equipollent options of seeking enforcement, by a court under the CCP and by a judicial enforcement officer under the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended). 25. With effect from 1 September 2005, Article 251 and other related provisions of the CCP were amended by Law no. 341/2005 Coll. in that, with certain exceptions that are not relevant to the present case, enforcement of adjudicated claims was henceforth to take place under the Judicial Enforcement Code. 26. Under Article 372m §§ 1 and 3 of the CPP, as amended by Law no. 341/2005 Coll., creditors seeking enforcement of their claims before courts had six months from the entry into force of the amendment to initiate enforcement proceedings under the Judicial Enforcement Code and to inform the enforcement court accordingly. Should they fail to do so, enforcement before the courts was to be discontinued. 27. The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by the Judicial Enforcement Code. Under its Article 2 § 1, a judicial enforcement officer is a person designated and entrusted by the State with obtaining forcible compliance with judicial and other decisions. 28. The Act regulates the status and functioning of State-owned enterprises (section 1). 29. Law no. 317/1996 Coll. amended the Act with effect from 15 November 1996. It introduced, inter alia, sections 15a to 15e, providing for detailed rules concerning the liquidation of State-owned enterprises. 30. Section 15c(2)(a) of the amended Act provides: “In the course of liquidation the liquidator has an obligation to publish in the Commercial Journal a notice on commencement of the entry of the [State-owned] enterprise into liquidation, together with a call for all creditors and other persons and bodies which are concerned by the enterprise’s entry into liquidation, to register their claims or other rights within a period which cannot be shorter than 90 days from the enterprise’s entry into liquidation, failing which [such claims or rights] become extinct”. 31. Under Section 15c(2)(g) of the amended Act: “In the course of liquidation the liquidator has a duty to settle obligations and claims”. 32. Section 15c(7) of the amended Act provided: “Liquidation of a [State-owned] enterprise cannot be interrupted by other proceedings under special statute [such as, for example, enforcement proceedings under the Judicial Enforcement Code].” 33. Law no. 166/1998 Coll. amended the Act with effect from 1 July 1998. Among other things, it amended the wording of Section 15c(7) of the Act as follows: “Proceedings under special statute [such as, for example, enforcement proceedings under the Judicial Enforcement Code] shall be stayed by the [State-owned] enterprise’s entry into liquidation.” 34. Section 15c (7) of the Act was subsequently renumbered as section 15c (8), without any change in its wording. 35. Under Article 228 § 1 (d) of the CCP, civil proceedings may be reopened where the Court has found a violation of the requesting party’s Convention rights and where any serious consequences arising from the violation have not been adequately redressed by the award of just satisfaction. In principle, however, only proceedings which have been concluded by means of a judgment (rozsudok) can be reopened.