DEGRO v. SLOVAKIA
Inadmissible
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Imrich Degro, is a Slovak national, who was born in 1941 and lives in Prešov. He was represented before the Court by Mr I. Jurčišin, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 9 June 2008 the applicant lodged an action against a private company alleging that it had sold him a car that had permanent defects. Accordingly, the applicant asked the court to order the defendant to replace the car or, alternatively, refund him the purchase price. 5. The action was granted by the Prešov District Court (Okresný súd) on 25 June 2010 and, following an appeal lodged by the defendant, its judgment was upheld by the Prešov Regional Court (Krajský súd) on 13 December 2010. 6. The order that the defendant replace the car or refund the purchase price became final and binding (právoplatnosť) on 12 January 2011, following service of the Regional Court’s judgment on the parties. After the expiry of the period allowed for voluntary compliance with the order, the order became enforceable (vykonateľnosť) on 16 January 2011. 7. The defendant then filed a petition with the Office of the Prosecutor General (“the PG”), requesting that the latter exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”). 8. At an unspecified time, presumably still in 2011, the PG acceded to the request by challenging the contested judgments in the Supreme Court (Najvyšší súd). 9. In his extraordinary appeal, the PG relied on Article 243f § 1 (c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”), which permits such an appeal on the grounds that the challenged decision is based on an incorrect assessment of points of law. In particular, the PG argued that the courts had misinterpreted the consumerprotection rule pertaining to the case. The rule provided that a consumer who purchased goods or a service that had a reparable defect had the same remedies available to him or her as when the goods or service had an irreparable defect, provided that the supplier of such goods or service had failed to repair the reparable defect within thirty days of being asked to do so. According to the PG, however, that rule was not applicable in a situation where the consumer – such as the applicant in the present case – had not used the remedy related to irreparable defects but had taken possession of the repaired goods despite the fact that the repair had been carried out after the statutory thirty-day period. 10. In his observations in reply, the applicant disagreed with the interpretation of the relevant rule by the PG. It was far too restrictive and disregarded the object and purpose of the consumer protection legislation. He argued that the interpretation of that rule by the lower courts had been correct in his case: since the defendant had failed to observe the statutory thirty-day period for repairing the car, the applicant had been entitled to the remedies granted by those courts. 11. On 27 March 2013 the Supreme Court allowed the appeal by quashing the contested judgments and remitting the case to the first-instance court for re-examination, having fully endorsed the line of argument pursued by the PG. The Supreme Court’s judgment was served on the applicant’s lawyer on 6 May 2013. 12. The proceedings are now pending at first instance. 13. Article 127 reads as follows: “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 to be justified, it shall deliver a decision stating that the 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 that 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 [person’s] 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 [person’s] 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. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 14. Article 1 of the CCP lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings, with a view to ensuring fair and just protection of the rights and legitimate interests of the parties, and promoting compliance with the statutory law, fulfilment of duties and respect for the rights of fellow citizens. 15. Under Article 101 § 1, the parties to the proceedings are to contribute to the purpose of the proceedings, in particular by giving a truthful and complete description of all the relevant facts, adducing evidence, and abiding by the instructions of the court. 16. Pursuant to Article 120 § 1, the parties to the proceedings are to adduce evidence to uphold their claims. 17. Under Article 159 § 3, as soon as a matter has been resolved by force of a final and binding decision or a judgment, it may not give rise to new proceedings. 18. The relevant provisions concerning appeals on points of law (dovolanie) are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 35090/07, §§ 65-68, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, as the power to suspend the enforceability of the impugned decision is entrusted to the Supreme Court (Article 243). 19. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq. 20. The PG has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, provided that the PG concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2). 21. An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the PG is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4). 22. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (see, for example, Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law. 23. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision becoming final and binding (Article 243g). 24. If the PG concludes, following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be lodged without stating the reasons for appeal. The reasons must then be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings will be discontinued (Article 243h §§ 3 and 4). 25. If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability must be suspended following the lodging of the extraordinary appeal with the Supreme Court (Article 243ha § 1). The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which the suspension ceases (a) when the request is dismissed or (b) with a decision on the extraordinary appeal, unless extended by the Supreme Court, no later than one year from the lodging of the extraordinary appeal with it. 26. A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations. The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the PG (Article 243i § 1 and Article 243j). 27. The results of the ongoing work to re-codify the rules on civil procedure are summarised in a 2013 green paper (Návrh legislatívneho zámeru rekodifikácie civilného práva procesného) of the re-codification commission under the auspices of the Ministry of Justice. The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the Convention, especially as regards the principles of equality of arms, legal certainty and res judicata. Extraordinary appeals are retained, albeit in a modified form, in the final text of the new Code of Civil Contentious Procedure (Civilný sporový poriadok). 28. In a decision (uznesenie) of 19 July 2000 in an unrelated case (no. PL. ÚS 57/99), the Constitutional Court dismissed a motion by the Supreme Court that certain provisions of the CCP concerning extraordinary appeals were contrary to the Constitution. That motion was lodged by the Supreme Court in the context of extraordinary appeal proceedings instituted by the PG concerning the review of an administrative decision on a restitution claim (see Veselá and Loyka v. Slovakia (dec.), no. 54811/00, 23 November 2004). In its decision, the Constitutional Court observed, inter alia, that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also right in terms of content. A clear discrepancy between the degrees of respect shown for those two principles in an individual case could justify an interference with the former principle for the benefit of the latter. However, that would be so only in instances of a striking violation of constitutional principles of procedure, the principle of a fair trial or a denial of justice, which were not amenable to correction by other means. According to the Constitutional Court, for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or its outcome (linked to either factual or legal assessment), and to instances where other available legal remedies had been exhausted. Moreover, the Constitutional Court held that by virtue of the power to lodge an extraordinary appeal, the PG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision. 29. In a decision of 29 October 2003 in an unrelated case (no. IV. ÚS 197/03) concerning an individual complaint, the Constitutional Court held, inter alia, that in extraordinary appeal proceedings before the Supreme Court the PG did not have the standing of a party to the proceedings as such, but rather had a sui generis standing, similar to that of the parties. In such proceedings, the PG had no subjective interest of his or her own. Rather, the protection from unlawful final and binding decisions pursued in those proceedings served the general interest. 30. In a decision of 3 June 2008 in another unrelated case (no. IV. ÚS 180/08) concerning an individual complaint, the Constitutional Court observed, among other things, that individuals and legal entities that had petitioned the PG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the PG was under no legal duty to accommodate the request. It was within the PG’s entire discretion to decide whether or not to lodge an extraordinary appeal. The extraordinary appeal was an extraordinary remedy. There was no legal right to have it lodged on one’s behalf. A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights. 31. In its decision of 27 September 2012, in an unrelated case (no. 1 M Obdo V 2/2011), the Supreme Court rejected an extraordinary appeal by the PG concerning a property dispute. It held that an extraordinary appeal was not admissible in circumstances where it was open to the party concerned to pursue its rights directly by way of an appeal on points of law.