Published on 30 October 2023
FIRST SECTION
Application no. 42073/22
Elena KOVÁČOVÁ
against Slovakia
lodged on 24 August 2022
communicated on 9 October 2023
SUBJECT MATTER OF THE CASE
The application concerns the alleged inability of the applicant, a Supreme Court judge, to have enforced a final, binding and enforceable judgment ordering the State, in the person of the Supreme Court, to pay her an amount of money in compensation for non-pecuniary damage.
The case has its origin in the existence of the Special Court (Špeciálny súd), established in 2003 with criminal jurisdiction over certain public officials and certain offences, such as corruption and organised crime. Judges of this court received a special monthly allowance in addition to their ordinary salary as a judge until it was replaced in 2009 by the Specialised Criminal Court (Špecializovaný trestný súd), in response to a constitutional judgment finding, inter alia, that the said remuneration arrangement had been discriminatory, disproportionate and as such unacceptable (see Fruni v. Slovakia, no. 8014/07, §§ 11, 72, 80 and 89, 21 June 2011).
Following this development, upon an antidiscrimination action, in 2010 the applicant (as a number of other judges who pursued such claims) was awarded 100,000 euros in damages for discrimination in her remuneration vis-a-vis the Special Court judges. As the defendant failed to comply with the order, the applicant petitioned for enforcement, and these proceedings were terminated in 2021 pursuant to special legislation dealing with certain “old” enforcement proceedings. Accordingly, on 4 February 2021, the applicant petitioned for enforcement anew. These proceedings are directed against the State, in the person of the Registry of the Supreme Court, and are still ongoing, having thus far yielded no proceeds.
On the one hand, in response to the defendant’s objections, it was recognised in the ongoing enforcement proceedings that the defendant had no personal immunity to enforcement on account of the fact that the Supreme Court Registry did not own but merely administered and used, for ensuring its judicial functions, assets legally owned by the State. Any such immunity was attached exclusively to specific assets exempted from enforcement, which did not exclude the possibility of enforcement in relation to other seizable assets. However, on the other hand, no such seizable assets have been identified.
The applicant also attempted to assert her claim by way of an individual complaint before the Constitutional Court, which was however rejected (IV. ÚS 361/2022). The Constitutional Court noted that the case was essentially of a private-law nature and that no exercise of the Supreme Court’s jurisdiction was involved. In such circumstances, the latter (its Registry) had no standing before the Constitutional Court. Moreover, it was noted that, in the proceedings on an individual complaint, the applicant herself had no standing to challenge the statutory rules preventing her claim from being enforced.
The applicant complains that her inability to have her claim enforced is contrary to her right of access to court under Article 6 § 1 of the Convention and her right to property under Article 1 of Protocol No. 1. Moreover, in violation of her rights under Article 13 of the Convention, she has had no effective remedy in that respect.
QUESTIONS TO THE PARTIES
1. In view of the fact that it appears legally and practically impossible for the applicant to have her final, binding and enforceable judgment enforced, has the essence of her right of access to a court been impaired (see, among other authorities, Burdov v. Russia no. 59498/00, §§ 34-38, CEDH 2002‑III; Jasiūnienė v. Lithuania, no. 41510/98, §§ 27-31 and 44‑47, 6 March 2003; and Burdov v. Russia (no. 2), no. 33509/04, §§ 65‑70, ECHR 2009)?
2. In view of the apparent legal and practical impossibility for the applicant to have her final, binding and enforceable judgment enforced, has there been an interference with her peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, has that interference been compatible with the requirements of that provision (see, for example, Burdov, cited above, §§ 40-42; Jasiūnienė, cited above, §§ 44-47; and Burdov (no. 2), cited above, §§ 86-88)?
3. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention (see, for example, Burdov (no. 2), cited above, §§ 96-117)?
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