CASE OF KOVÁROVÁ v. SLOVAKIA
Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1947 and lives in Bratislava. 6. On 9 May 2007 the applicant lodged an action with the Bratislava V District Court (Okresný súd) seeking a ruling declaring that a meeting of flat owners in a block of flats held on 24 April 2007 was contrary to the law, and that the decisions adopted at that meeting were void. The defendant of the action was an entity with legal personality referred to as a community of owners of residential and non-residential premises in the given building (“the defendant”). Such entities are officially registered with the local District Authority (obvodný úrad). The defendant was so registered with the District Authority in Bratislava. 7. On 2 January 2008 a submission was made to the District Court by a lawyer indicating that he was acting on behalf of the defendant and informing the court that on 14 December 2007 the defendant had ceased legally to exist. In that connection he submitted a letter from the District Authority which indicated that the defendant had been struck out of the relevant register on that date, the context being that the administration of the building was no longer the responsibility of the defendant and that that responsibility had been transferred to a specialised agency. 8. On 24 January 2008 the applicant requested that a hearing scheduled before the District Court for 28 January 2008 be postponed sine die. She submitted that she had just learned of the striking out of the defendant by consulting the relevant register, and that she would make a further submission once she had analysed the situation, for which she needed time. The hearing scheduled for 28 January 2008 was accordingly adjourned. 9. On 3 March 2008 the District Court discontinued the proceedings, on the grounds that the defendant had ceased to exist and had no legal successor. In particular, the District Court held that neither the individual owners of the flats in the building nor the newly contracted administration agency could be considered as having succeeded to the defendant’s position in the proceedings. 10. On 20 March 2008 the applicant appealed (odvolanie), raising two principal arguments. First, she submitted that the administration agency was the successor to the original defendant, and that consequently the proceedings should have continued against it. Second, even assuming that the first contention was not correct, the court should not have terminated the proceedings but should rather have stayed them pending the outcome of another set of proceedings before the same District Court, in which a decision was being contested which had been taken at another meeting of the flat owners on 11 September 2007, to the effect that the defendant should be wound up (zrušenie). If that other set of proceedings ended with a ruling declaring the winding up of the original defendant void, its striking out of the given register would lose basis and the proceedings could continue against that defendant. More details about those other proceedings are set out below (see paragraphs 18 et seq.). 11. On 30 May 2008 the Bratislava Regional Court (Krajský súd) upheld the first-instance decision, noting that the defendant had been struck out of the relevant register and had thereby lost capacity to be a party to the proceedings, in which situation there was no alternative to a discontinuance of the proceedings. The relevant legal provisions were referred to, but no reasons were offered for the latter conclusion. 12. On 7 July 2008 the applicant appealed on points of law (dovolanie), relying on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) (“the CCP”), under which such an appeal was admissible if the courts had prevented a party to the proceedings from pursuing a case before them. In particular, she argued that the Regional Court had provided neither any factual nor legal grounds for its conclusion, as a result of which it was not amenable to review. In addition, she pursued and further developed the same line of argument as in her appeal. 13. On 7 May 2009 the Supreme Court (Najvyšší súd) declared the applicant’s appeal on points of law inadmissible, holding that the shortcomings alleged by the applicant did not fall within the purview of Article 237 (f) of the CCP. This applied specifically to the alleged deficiency in the Regional Court’s reasoning and the alleged errors of fact and law in the lower courts’ decisions. In addition, in so far as the applicant had contested an error of procedure in that the courts had failed to stay the proceedings rather than to terminate them, the Supreme Court held that staying the proceedings was an option and not a duty of the court concerned, and that the fact that the present proceedings had not been stayed did not make out the admissibility ground cited by the applicant. As the appeal was not admissible, the Supreme Court did not examine the merits of the case. 14. On 17 August 2009 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). She directed the complaint against all three levels of the ordinary courts and pursued and further developed in principle the arguments described above. She considered that the discontinuance of the proceedings had been unlawful, submitted that it had been a mistake of the ordinary courts not to have examined the merits of her claim, and argued that this had amounted to a breach of her rights of access to court and to a fair hearing under Article 6 § 1 of the Convention. 15. On 16 December 2009 the Constitutional Court declared the complaint inadmissible. It considered it separately with reference to the individual levels of ordinary jurisdiction involved. As regards the alleged shortcomings in the proceedings leading to the Regional Court’s decision of 30 May 2008, it held that the applicant had failed to submit her complaint within the statutory time-limit of two months. As regards the Supreme Court, it observed that the central argument in the applicant’s appeal on points of law was the alleged error of law. In that regard, it went on to hold, inter alia, that: “The Supreme Court ... rightfully emphasised ... that, as there were no grounds on which the applicant’s appeal on points of law would be admissible, it was not possible for it to review the merits of the Regional Court’s decision. The Supreme Court did not exclude in a binding manner that the decision of the Regional Court was the result of a wrongful legal assessment of the matter, nor did it exclude the possibility of there having been another error in the proceedings before it which had resulted in a wrongful decision on the merits.” 16. Nevertheless, the Constitutional Court found that, as regards the admissibility of the applicant’s appeal, the Supreme Court had given relevant reasons for its decision and that that decision was not arbitrary. In particular, it also noted that, should the other set of proceedings end with a ruling declaring the winding up of the defendant void, this would create for the applicant the opportunity to seek reopening of the proceedings in her case. Future examination of that case on the merits thus could not be completely excluded. However, at the same time, the Constitutional Court noted that even if the winding up of the defendant were to be declared void, this would not automatically mean that the defendant would legally come into existence once more. The coming into being of a legal entity such as the defendant required incorporation, which in turn necessitated a decision of the District Authority, and could not result directly from a judicial decision. 17. The Constitutional Court’s decision was served on the applicant on 5 February 2010. 18. On 26 September 2007 an individual brought proceedings against the above-mentioned defendant as well as the above-mentioned newly appointed management agency, seeking a ruling declaring void a decision to wind up the defendant taken at a meeting of flat owners in the block held on 11 September 2007 (see paragraph 10 above). 19. After the first dismissal of the action was quashed following the claimant’s appeal, the action was again dismissed by the District Court on 4 April 2012 and, following the claimant’s appeal, by the Regional Court on 19 March 2014. 20. On 14 July 2014 the claimant challenged the judgments last mentioned by way of a complaint to the Constitutional Court. The complaint appears to be still pending.