CASE OF KOMANICKY v. SLOVAKIA
Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Nicolas Bratza
9. The applicant was employed by the District National Committee (Okresný národný výbor) in Bardejov. In 1988 he was dismissed for breach of discipline. Subsequently courts at two levels of jurisdiction declared the dismissal unlawful. Their decisions became final on 2 August 1991. 10. In 1990, while the above proceedings were pending, the national committees ceased to exist ex lege, and their liquidation formally ended on 31 July 1991. The national committees were replaced by district offices (okresné úrady) which were not formally their legal successors. 11. On 2 September 1991 the Bardejov District Office gave notice to the applicant pursuant to Section 46 (1) (b) of the Labour Code. The dismissal became effective on 31 December 1991. The applicant challenged this decision. He argued, in particular, that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment. 12. On 16 July 1993 the Bardejov District Court (Okresný súd) heard the parties and dismissed the applicant’s action. 13. The applicant appealed. He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful, that he had become an employee of the District Office in Bardejov after his dismissal in 1988 had been declared unlawful on 2 August 1991, and that the District Office had paid his salary until the end of 1991. 14. On 8 March 1994 the Košice Regional Court (Krajský súd) heard the parties. The case was adjourned and the representative of the defendant was requested to submit the Government’s regulation of 24 November 1990 concerning the practical aspects of liquidation of the national committees. On 14 April 1994 the applicant complained to the Regional Court that it should have decided on the case on 8 March 1994 as it had had all relevant evidence before it. Another hearing before the Regional Court was held on 26 April 1994. The parties were acquainted with documentary evidence submitted by the representatives of the defendant. The applicant requested the exclusion of the Regional Court judges. 15. On 7 July 1994 the Košice Regional Court (Krajský súd) quashed the first instance judgment and ordered the District Court to take further evidence. The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by the District Office in Bardejov between 2 August 1991 and his second dismissal. In particular, the Regional Court considered it necessary to establish whether the applicant had received a salary, or compensation therefor, during the period in question, that is, whether the sums which he had received had been paid from the funds allocated to the District Office or from a special fund of the Ministry of the Interior. The appellate court further instructed the District Court to establish whether or not the Ministry of the Interior had authorised the head of the District Office in Bardejov to settle the applicant’s claims. The decision stated that witnesses should be heard with a view to establishing the above facts. The case was sent back to the Bardejov District Court for a new adjudication. 16. The applicant and the representative of the defendant failed to appear before the District Court on 8 September 1994. The applicant did not appear at subsequent hearings scheduled for 26 September 1994 and 4 October 1994. He excused his absence on the last mentioned date. In his letter of 3 October 1994 the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file. The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence. 17. Another hearing was scheduled for 4 November 1994. The District Court proceeded with the case in the applicant’s absence as, according to the Government, the summons had been served on the applicant’s daughter and the applicant had not excused himself. The applicant contends that he was not summoned. On 4 November 1994 the District Court heard two officials of the District Office in Bardejov who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of the District Office. The compensation for pay the applicant received between 2 August 1991 and 31 December 1991, that is, until his dismissal became effective, were paid from a special fund of the Ministry of the Interior. The witnesses further explained that the notice which the District Office had sent to the applicant related to his contract of employment with the District National Committee which, in the meantime, had ceased to exist. The District Court had sent it in accordance with the relevant instructions issued by the Ministry of the Interior. 18. On 14 November 1994 the District Court adjourned the case as the applicant had excused himself in advance that he was ill. 19. The next hearing was scheduled for 10 January 1995. The applicant received the summons on 27 December 1994. According to the applicant, he submitted, at 7.30 a.m. on 10 January 1995, a letter to the District Court’s registry informing the court that he would not attend the hearing scheduled for 8.30 a.m. on the same day. In the letter the applicant explained that, several days earlier, he had not been allowed to consult the case file and that, therefore, he did not consider it necessary to excuse himself for his absence. The Government maintain that the letter was delivered to the court’s registry at 10 a.m. This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter, stamped by the court’s registry, bears no indication of the hour when it was submitted. 20. On 10 January 1995 the Bardejov District Court proceeded with the case in the applicant’s absence. It delivered a judgment by which it dismissed the action. In the judgment the District Court found that the District Office was not a legal successor to the applicant’s former employer and that the applicant had no right to be employed by the District Office. The court held that, by sending a notice to the applicant, the District Office had acted in accordance with the relevant regulations of the Ministry of the Interior and of the Ministry of Finance. Under these regulations, the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by 31 July 1991. The court concluded that the District Office had acted in accordance with Section 251 of the Labour Code. 21. The applicant appealed. He alleged that the District Office had had no power to send him a notice, and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful. He alleged, with reference to the relevant pay slips, that he had been paid from the same account as the other employees of the District Office after his first dismissal had been declared unlawful on 2 August 1991. The applicant considered irrelevant that the Ministry of the Interior had put at the District Office’s disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as, in his view, that sum of money had been used for different purposes. In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues. The veracity of his allegations could be proved by an expert. 22. The applicant also complained to the appellate court that the District Court had not considered his arguments, that it had not established the relevant facts and that it had decided in his absence. Finally, the applicant stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified. 23. Hearings before the Košice Regional Court scheduled for 20 September 1995 and 26 January 1996 were adjourned as the parties did not appear. The applicant excused his absence on both occasions. Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence. 24. The next hearing was scheduled for 6 March 1996. The Regional Court invited the applicant to submit a medical certificate should he not be able to attend, failing which the case would be decided in his absence. On 2 March 1996 the applicant sent a registered letter in an envelope addressed to the “State Regional Court” in Košice. In the letter the applicant informed the Regional Court that he was ill and enclosed a medical certificate. The applicant further asked the court not to proceed with the case in his absence. The letter indicated the case number, the name of the presiding judge and also the date of the hearing. 25. The letter was stamped by the registry of the Regional Court. The stamp indicates that the letter was delivered on 5 March 1996. The letter bears a hand-written remark by the president of the Regional Court dated 4 March 1996 and indicating that it should be transmitted to the presiding judge. The letter bears another hand-written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on 6 March 1996 at 10.30 a.m. 26. The Government submit that the letter was considered to be a complaint and that the envelope was submitted, unopened, to the secretariat of the president of the Regional Court on 5 March 1996. The president of the Regional Court mistakenly dated his above instruction 4 March 1996. According to the Government, the applicant’s letter reached the presiding judge five minutes after the delivery of the judgment on the case. 27. On 6 March 1996 the Košice Regional Court examined the case in the applicant’s absence and upheld the first instance judgment. It stated that the applicant’s letter posted on 2 March 1996 had reached the judges on 6 March 1996 at 10.30 a.m., that is after the hearing was over. The judgment further stated that the letter had been addressed to the president of the Regional Court and not directly to the presiding judge. 28. In its judgment the Regional Court pointed out that it had taken further evidence, in that it had requested the Ministry of the Interior to submit a report concerning the delegation of its powers to District Offices. It concluded, with reference to all the evidence before it, that the applicant’s appeal was ill-founded. 29. In particular, the Regional Court found that the applicant’s dismissal by the District National Committee in Bardejov had been declared unlawful by a decision which became final on 2 August 1991. By that time the national committees had ceased to exist ex lege, and their liquidation had formally ended. In accordance with the relevant instructions issued by the Ministry of the Interior and the Ministry of Finance, the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by 31 July 1991. The Regional Court therefore upheld the view of the first instance court according to which the District Office in Bardejov had acted in accordance with Section 251 of the Labour Code. The Regional Court had also regard to the supplementary evidence which the District Court had taken on 4 November 1994 and which indicated that the money which had been paid to the applicant had been derived from the budget of the Ministry of the Interior. The Regional Court concluded that the applicant had not become an employee of the District Office. Accordingly, the notice in question was in conformity with Section 46 (1) (b) of the Labour Code. 30. On 23 April 1996 the applicant lodged an appeal on points of law. He complained, inter alia, that he had not been able to act before the appellate court and invoked Article 237 (f) of the Code of Civil Procedure. 31. On 26 November 1997 the Supreme Court (Najvyšší súd) rejected the appeal on points of law as being inadmissible without hearing the parties. In its decision the Supreme Court found that there had been no shortcomings within the meaning of Article 237 (f) of the Code of Civil Procedure in the proceedings challenged by the applicant. The Supreme Court did not address the merits of the case. 32. Section 46 (1) (b) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment. 33. Pursuant to Section 251, in cases when an organisation is being liquidated, the liquidator or the State has to satisfy the claims of the employees of such an organisation. 34. Article 101 (1) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings, by inter alia, complying with the court’s instructions. Paragraph 2 of Article 101 entitles the court to proceed with a case even when the parties remain inactive. When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason, the court may proceed with the case in the absence of that party. It shall thereby have regard to the contents of the file and the evidence which has been already taken. 35. Pursuant to Article 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. 36. In accordance with the Supreme Court’s case-law (Collection of the Judicial Decisions and Opinions of the Supreme Court, No. R 31/1995), a party’s illness which has been duly certified by a doctor represents a serious reason within the meaning of Article 101 (2) of the Code of Civil Procedure. When a party to the proceedings has asked in time that the proceedings be adjourned in such a case, the court’s proceeding with the case in that party’s absence is considered as preventing him or her from acting before the court within the meaning of Article 237 (f) of the Code of Civil Procedure.