CASE OF LAWYER PARTNERS, A.S., v. SLOVAKIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant is a private limited company with its registered office in Bratislava. The applications on its behalf were lodged by Mr D. Paľko and Mr M. Morong, the Chairman and Vice-Chairman of its managing board. 6. On 15 July 2005 the applicant company concluded a contract with Slovak Radio, a public-law institution. Under that contract, taken together with two additional ones concluded on 20 September 2005 and 27 January 2006, the applicant company acquired the right, in exchange for compensation paid to Slovak Radio, to recover unpaid broadcast receiver licences in 355,917 cases, plus additional sums for default in those payments. 7. On 20 October 2008 the Bratislava I District Court confirmed the validity of the above contracts. The decision became final on 5 November 2008. 8. The applicant company was obliged to sue those persons who had refused to pay the debt which it had acquired the right to recover. The applicant company prepared individual actions with a request for payment orders to be issued against the debtors. Given the number of persons concerned, the actions were generated by means of computer software and recorded on DVDs. The DVDs were sent to the district courts concerned, accompanied by an explanatory letter. 9. Thus the applicant company, on 31 March 2006 and 24 July 2006, lodged actions, in electronic form, with several district courts. On 19 October 2006, after officials of the Ministry of Justice had stated that courts were in a position to register such actions, the applicant company resubmitted the first group of actions to the courts concerned on DVDs. The courts refused to register the actions, indicating that they lacked the equipment to receive and process submissions made and signed electronically. Further relevant details of the applications under examination are set out in Appendix I. 10. In one case the applicant company submitted, on 14 December 2006, with the agreement of the Svidník District Court, a printed version of the 379 actions it had lodged on a DVD on 31 March 2006. The documents in support of the claims remained available on the DVD exclusively. The file numbers indicate that the District Court registered those actions as having been lodged in 2007. 11. On 15 December 2008 the applicant company informed the Court that its claims relating to the actions which the district courts had refused to register had become statute-barred. 12. In 2006, following the district courts’ refusal to register the actions it had submitted on DVDs, the applicant company lodged a complaint with the Constitutional Court in respect of each individual refusal. Referring to Article 6 § 1 of the Convention and its constitutional equivalent, it alleged a violation of its right of access to a court. 13. The Constitutional Court rejected the complaints in the cases under consideration as having been lodged outside the statutory time-limit of two months. The decisions stated that the applicant company had earlier learned, in the context of its previous attempts to lodge actions electronically, that district courts lacked the necessary equipment for processing such actions and had failed to lodge a complaint with the Constitutional Court at that time. The Constitutional Court considered it irrelevant that the above-mentioned time-limit had been complied with in respect of the district courts’ refusal to register actions in those cases which underlay the constitutional complaints under consideration (further details of the individual proceedings are set out in Appendix I). 14. On 31 March 2006 several courts asked the Ministry of Justice for instructions as to how they should process the applicant company’s submissions lodged in electronic form. The Ministry advised the courts to wait until the position had been analysed. 15. In a letter of 3 April 2006, the Ministry stated that as ordinary courts did not have an electronic registration facility, the conditions for receiving submissions in electronic form as laid down in Law no. 215/2002 Coll. were not met. 16. At meetings with presidents of district and regional courts held on 24 November 2006 and from 1 to 2 February 2007 the Ministry of Justice concluded that ordinary courts were duly equipped for receiving submissions bearing a secured electronic signature. 17. A press release issued by the Ministry of Justice on 16 October 2008 indicates that the Ministry had published on its website the electronic addresses of individual courts and information about the filing of submissions signed electronically. 18. Article 42 § 1 of the Code of Civil Procedure, as amended with effect from 1 May 2002, reads: “Submissions to a court can be made in written form, by an oral statement which is recorded and transcribed, by means of electronic devices subject to the submission bearing a secured electronic signature in accordance with the applicable legislation, by telegraph or by fax.” 19. Regulation no. 543/2005 governs, inter alia, the organisation of work within district courts and regional courts, including their registries. The relevant provisions read: “Submissions received by the registry which contain a petition for proceedings to be brought shall be registered by means of technical and software devices approved by the Ministry of Justice and designed for processing the agenda of the courts.” “Receipt of submissions made by electronic means and bearing a secured electronic signature Submissions received by means of electronic devices and having a secured electronic signature shall be dealt with in accordance with the applicable legislation. Such submissions are to be transmitted to the central office of the court to be processed in accordance with section 129.” 20. The Act on Electronic Signature 2002 governs the establishment and use of electronic signature, the rights and obligations of persons in that context and the protection of documents signed electronically (section 1). 21. At the relevant time, Regulation no. 542/2002 governed the use of electronic signature in, inter alia, administrative relations. It was issued by the National Security Authority and entered into force on 1 October 2002. Sections 6 to 12 set out details on the establishment and functioning of an electronic registry within public authorities which use secured electronic signature, the filing, processing and handling of electronic documents, as well as their format and transfer between the dispatcher and the addressee. 22. Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, this period commences when the plaintiff could have become aware of them. 23. In the majority of the cases examined in the course of 2007 the Constitutional Court took the same approach as indicated in paragraph 13 above, namely that the period of two months under section 53(3) of the Constitutional Court Act 1993 had started running not later than in April 2006, when the applicant company had learned for the first time that ordinary courts were not in a position to register submissions in electronic form. 24. In a different decision delivered on 4 January 2007, the Constitutional Court declared admissible a complaint in respect of the refusal, by the Čadca District Court, to register actions lodged electronically on 24 July 2006 (proceedings no. III. ÚS 7/07). In its judgment on the merits of 20 December 2007, the Constitutional Court found a violation of Article 6 § 1 of the Convention. It held that the relevant law entitled parties to file submissions to courts in electronic form. Public authorities were obliged to establish facilities for receiving and processing such submissions. In the above case the Constitutional Court ordered the Čadca District Court to proceed with the actions lodged on DVDs by the applicant company on 24 July 2006. Prior to that, the applicant company had informed the Constitutional Court of the Čadca District Court’s earlier refusal to accept a different set of actions which had been lodged on DVDs on 31 March 2006. 25. Since 2008 all chambers of the Constitutional Court have systematically approached cases of this type in the manner described in the preceding paragraph. Thus, in twenty-four other cases concerning similar complaints lodged in 2006 the Constitutional Court counted the period of two months from the moment when the applicant company had been informed about the refusal to register each specific submission filed electronically. This approach has been applied even in cases which concerned a second refusal to register an identical submission. 26. In those cases the Constitutional Court found a violation of the applicant company’s right of access to a court under Article 6 § 1, holding that the relevant law obliged courts to accept actions submitted by electronic means and that there existed no justification for their refusal to do so. It ordered the district courts concerned to accept those actions as having been lodged on the date when they had initially received them and to process any submissions signed electronically.