THIRD SECTION
DECISION
Application no. 38092/13
Erika ŽILKOVÁ
against Slovakia
The European Court of Human Rights (Third Section), sitting on 2 October 2018 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 6 June 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, whose current name is Erika Žilková, and whose previous name was Erika Bittová (née Erdélyiová), is a Slovak national who was born in 1970 and lives in Galanta. She was represented before the Court by Mr E. Bárány, a lawyer practising in Bratislava.
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings before the ordinary courts
3. An action was brought against the applicant and four other individuals for payment of an amount of money on the grounds that they stood guarantee for the repayment of a loan taken out by a company, which later became insolvent, from a bank, which later transferred the claim to another private entity.
4. The action fell to be examined by the Trnava Regional Court as the first-instance court (“the court of first instance”) and by the Supreme Court as a court of appeal (“the court of appeal”) and a court of cassation (“the court of cassation”).
5. According to the Government, and uncontested by the applicant, the case file contains a power of attorney dated 6 November 2000 for the applicant’s representation by a lawyer, A., who also represented the other four defendants.
6. In a judgment of 12 January 2005 the court of first instance ordered the applicant and two of the other defendants to pay the claimant jointly and severally the equivalent of some 222,500 euros (EUR), with interest, and a portion of the legal costs.
7. On 9 November 2005 the court of appeal reversed that judgment and dismissed the action following an appeal by the defendants. The reversing judgment identifies the applicant as being represented jointly with the other defendants by A.
8. On 23 December 2005 the applicant presented herself at the registry of the court of first instance with a view to inspecting the case file. A case‑file note concerning this inspection, drawn up by a clerk of the court, states that:
“[i]t has been established from the case file that [the applicant] was not represented by [A.], as indicated ... in the ... judgment [of the court of appeal of 9 November 2005] and, for that reason, these decisions were not served on her. Therefore, [a copy of the judgment of the court of appeal of 9 November 2005] has now been handed over to her, as a party to the proceedings, which she confirms by her signature.”
9. The claimant challenged the judgment of 9 November 2005 by way of an appeal on points of law. On 2 February 2006 A., the lawyer, filed observations in reply. According to the Government, and uncontested by the applicant, the lawyer specifically confirmed that she represented all the defendants who had given her a power of attorney, which in particular included the applicant.
10. In the subsequent course of the proceedings the appellate judgment of 9 November 2005 was quashed, the first-instance judgment of 12 January 2005 was again reversed, dismissing the action; that judgment was again tested by the court of cassation following a fresh appeal by the claimant on points of law.
11. In the examination of the appeal last mentioned, on 23 March 2012 the court of cassation upheld the first-instance judgment of 12 January 2005 granting the action. In addition, it ordered the applicant and the other defendants jointly and severally to pay the claimant EUR 22,575 as reimbursement of the costs of the cassation proceedings.
In its heading, the judgment of 23 November 2012 indicates that all the defendants, including the applicant, were represented by A. In its reasoning, it states, inter alia, that the defendants, including the applicant, filed observations in reply to the cassation appeal through their legal representative, A.
2. Final domestic decision
12. The applicant received a copy of the judgment of 23 March 2012 on 28 May 2002, and she challenged it by way of lodging a complaint with the Constitutional Court under Article 127 of the Constitution.
She contended that the courts had erroneously dealt with her as if she had been legally represented in the proceedings by A. That representation had, however, been terminated in November 2005 and the applicant had made sure that the courts were informed of it during her inspection of the case file on 23 December 2005. The cassation court had failed to notice this and had twice conducted cassation proceedings without the presence of the applicant. According to her, therefore, the contested judgment had been reached in violation of her rights to legal assistance (Article 47 § 2 of the Constitution) and to a fair trial, in particular equality of arms (Article 6 § 1 of the Convention).
13. On 13 November 2012 the Constitutional Court declared the complaint inadmissible. It noted, inter alia, that the court of appeal had identified the applicant in its judgment of 9 November 2005 as being represented by A. and that she had obtained a copy of that judgment when inspecting the court file on 23 December 2005. Had she had any reservations as to her having been treated as being represented by A., she could have sought a rectification of that judgment and, moreover, could have challenged it by way of an appeal on points of law under Article 237 (f) of the Code of Civil Procedure. However – probably because that judgment had been in her favour – she had failed to do so and had stopped taking any interest in the matter. This conduct had run contrary to the premise that “the law favours the vigilant” (vigilantibus iura sunt scripta) and was the reason that the applicant bore the responsibility for the lack of her effective legal representation in the subsequent proceedings.
The decision was served on the applicant on 11 December 2012 and it was not amenable to appeal.
3. Further facts concerning the applicant’s legal representation
14. The applicant submitted a copy of a letter dated 18 November 2005 and addressed to her by A. Referring to a meeting between them on 15 November 2005, the letter confirms their agreement to terminate the applicant’s legal representation by A. In addition, it refers to the applicant’s lack of cooperation, the courts’ failure to communicate with the applicant via A., and the fact that the courts had dealt directly with the applicant, rather than communicating with her via A.
COMPLAINT
15. The applicant complained under Article 6 § 1 of the Convention that in the proceedings leading to the judgment of 23 March 2012 she had been deprived of the possibility of being appraised of the claimant’s appeal on points of law and of responding to it, and that the Constitutional Court had denied her protection in that respect.
THE LAW
16. The applicant alleged a violation of her rights to a fair hearing by a tribunal under Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
17. Relying on Article 35 § 1 of the Convention (exhaustion) and referring to the findings of the Constitutional Court in its decision of 13 November 2012 (see paragraph 13 above), the Government objected first of all that the applicant could have, but had not, pursued any objections in relation to her being treated as being represented by A. by way of an appeal on points of law against the judgement of 9 November 2005. In addition, they argued that the scope of the applicant’s complaint before the Court was not identical with that before the Constitutional Court. Nevertheless, and in any event, they argued that the applicant had duly been represented in the proceedings by A., that she had failed to establish in relation to the courts that her legal representation by A. had been terminated, that her subsequent claims to that effect did not appear trustworthy, and that her argumentation was in general incoherent. As to the case note of 23 December 2005 (see paragraph 8 above), they submitted that it was unclear on what basis it had been made by the clerk who had made it since the court file contained no submission to the effect that the power of attorney of A. to act on behalf of the applicant in the proceedings had been withdrawn.
18. In reply, the applicant disagreed, reiterated her complaint, and submitted in particular that she had been entitled to legal representation before the court of cassation, that she had in fact not been able to make any use of that entitlement owing to an omission by the courts to notice her submission of 23 December 2005 clearly attesting that she had no legal representation, and that the law prescribed no specific or other way of informing the courts of the withdrawal of her lawyer’s power of attorney.
19. In a further submission, the Government argued that, even assuming that the applicant’s legal representation by A. had been terminated (as she claimed), the responsibility for not having taken any action in relation to being allegedly mistakenly treated as the applicant’s representative would lie with that representative and it would be up to the applicant to pursue any civil liability claims against her.
20. The Court notes the Government’s non-exhaustion objection. It considers that it is not necessary to resolve it since the application is in any event inadmissible on the grounds laid out below.
21. In particular, the Court observes that, rather than involving any specific matters of interpretation and application of the law of the Convention, the present application appears to focus on the factual questions of whether the applicant was represented in the domestic proceedings after the appellate judgment of 9 November 2005 and, should this not have been the case, whether this was due to any omission on the part of the respondent State.
22. The applicant herself argues that she had no representation during that phase of the proceedings, that this is reflected in the case note of 23 December 2005, that the domestic courts failed to notice and take this into account, that she personally had no knowledge and accordingly did not participate in that phase of the proceedings, and that her being unable to do so was attributable to the State.
23. The Court for its part notes that the applicant and four others, who were connected by their standing as guarantee for a loan, were the defendants in a private-law dispute and that at various stages of those proceedings there were some doubts about the applicant’s legal representation.
24. However, it has not been disputed, and the Court takes it as established, that by virtue of a power of attorney dated 6 November 2000 the applicant was represented by A. and that in a submission of 2 February 2006 A. unequivocally confirmed that she represented the applicant (see paragraphs 5 and 9 above). At the same time, the Court notes that in the subsequent course of the proceedings no submission was made calling this status in question and that, to the contrary, the defendants’ submissions (and in particular that in reply to the claimant’s second appeal on points of law) were made by A. on behalf of all the defendants (see paragraph 11 above).
25. In these circumstances, it appears first of all that in fact the applicant was represented during that phase of the proceedings by A.; that if A. acted on her behalf without lawful entitlement, any civil or disciplinary liability for it would in the first place be attached to A.; and that if the applicant had other preferences with regard to her participation in the proceedings, these were for her to act upon.
26. In that respect, as regards the case note of 23 December 2005, the Court notes first of all that its content and legal nature are open to question and that, in any event, it appears to have been superseded by the unequivocal submission of A. on 2 February 2006.
27. Furthermore, and more importantly, the Court notes the Constitutional Court’s finding that on 23 December 2005 the applicant had learned that the judgment of 9 November 2005 had treated her as having been represented by A., and that it had been open to her to seek rectification of that judgment if she had any complaints in respect of that matter, but that she had not done so.
28. The Court notes the Constitutional Court’s conclusion that it had been the applicant’s responsibility to ensure her effective legal representation, which she could have done but in the given circumstances had not done. In the light of the above considerations the Court finds that this conclusion cannot but be endorsed. Moreover, the Court notes that more than six years passed between the applicant’s last previous contact with the courts and the serving of the cassation judgment of 23 March 2012 on her. With regard to that period, there has not been any doubt that the remaining four defendants were effectively represented in the proceedings by A. The fact that they and the applicant were all sued jointly and severally can hardly be seen as adding to the credibility of the applicant’s claim that she had no knowledge of the continuation of the proceedings.
29. In sum, in the light of all the material in its possession, and in so far as the matters complained of were substantiated and are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant’s right of access to court or of any other component of her right to a fair trial under Article 6 § 1 of the Convention.
Accordingly, the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident
Full & Egal Universal Law Academy