Nástroje Na Zabezpečenie Včasného Poskytnutia Spravodlivosti a Efektívnej Vymožiteľnosti Práva

Jana Bajánková

Head of the Civil Law Division

Supreme Court of the Slovak Republic

Tools for Administering Justice in Time along with Effective Law Enforceability

The primary constitutional base of activities of courts and other authorities of the Slovak Republic competent in providing legal protection, as set in legal regulations, thus forming a “gateway” for the constitutional regulation of various aspects of law pertaining to judicial and other legal protection is the Article 46(1) of the Constitution of the Slovak Republic. Under the said Article, each individual is entitled to claim his/her right, by procedures laid down by a law, at an independent and impartial court, and in case provided by a law, at other applicable authority of the Slovak Republic. The right to legal protection also includes achieving satisfaction in a manner set by a law, with respect to the legal right claimed, which relates to enforceability of law.

Increasing the level of law enforceability is addressed, among other, also by changes in legal regulations, aiming predominantly at their simplification and stabilisation, as well as at removal of ambiguities.

A trial before the general court in the Slovak Republic is governed by the Code of Civil Procedure. This legal regulation in 2008 underwent an extensive change. The goals of the change included: introduction of electronic communication tools between the court and the party to the proceeding, extension of streamlined proceeding in all matters pertaining to claim settlement, setting clear rules related to procedural steps applied by the appellate court when reviewing a judgement of a first-instance court, enabling judges to resolve matters pertaining to parties of a proceeding by adopting a practical and prompt decision. The said goals translated into the legal institutions described below.

Form of procedural filings

With respect to introduction of advanced communication tools in the judicial practise, also the possibility to make a filing electronically both with and without a guaranteed electronic signature has been introduced. A filing containing a petition in the matter of a proceeding (a claim, its modifications, claim withdrawal, appeal etc.) or a petition for awarding an injunction made electronically while signed with a guaranteed electronic signature is not necessary to be supplemented.

On the contrary, a filing containing a petition in the matter of a proceeding or a petition for awarding an injunction made electronically without a guaranteed electronic signature (a filing sent to the court via email) must be supplemented with a filing made in writing. The term “supplementing” means adding, to a petition made with respect to the matter of a proceeding or a petition for awarding an injunction, a written document or oral statement to the minutes file within three days at the latest. A filing made via telefax needs to be supplemented, within three days at the latest, by submitting the original in order to certify authenticity of the telefax filing. In both cases (a filing made electronically without a guaranteed electronic signature and a filing made via telefax), the statutory procedural period is three days; otherwise, such filings will become unenforceable and the court will not deal with them. Filings not supplemented within the said period are not to be taken into account by a court. Electronic addresses, using which district and regional courts receive filings are published at the website of the Ministry of Justice of the Slovak Republic. District and regional courts include these electronic addresses in documents serviced to the parties of proceedings and their attorneys. With prior consent of the judge, documents serviced to the parties of proceedings may also include the electronic address of the judge; the same applies to the case of the electronic address of the court clerk.

Service

Effective communication of rulings and procedural steps taken by the court towards the parties of proceedings can be considered as one of the most significant challenges related to procedural standards, as well as effective communication with the court, which most commonly hampers administering of effective legal protection with respect to imperilled material rights of the parties. Procedural standards would probably fail to meet their mission and purpose without the existence of material rights of the parties. Therefore, in this respect the pool of communication tools available for accessing the court has been expanded by introducing of service of certain judicial documents via more effective electronic communication to the parties of proceedings. Electronic communication (email) can be used for service to the party of proceedings or his/her attorney upon request and to the address specified for electronic service of documents. The responsibility for availability of such address lies with the party or his/her attorney. A court document is deemed delivered on the fifth day from its sending also if not read by the addressee. This type of service is excluded in case of court rulings and documents for personal delivery.

Also introduced was a new method of service of process by means of filing the document in the judicial records. This concerns service of documents solely to natural persons (individuals) who are not entrepreneurs and it is not possible to service the document to the address of their permanent or temporary residence. The regulation assumes there is a prior search of the place of residence of the party concerned by the court via local government authorities, the police, tax authorities and the person providing welfare (or social security) benefits. Subsequently, the court is obliged to inspect possibilities for appointing a trustee for such person. After a vain search for the place of residence of the party concerned and concluding that it is not possible to appoint a trustee for such a person, the court will pass a decision in the form of a resolution published on the official notice board stating that documents for the person concerned are to be delivered by means of filing in the judicial records. Documents serviced by filing in the judicial records are deemed delivered upon elapse of seven days after having been made.

Hearing

The principle of oral proceedings is in terms of the civil procedure applied in practise as the court hearing. The obligation to order a hearing is not applicable in case of a procedure following the Article 5(1) of the Regulation of the European Parliament and of the Council (EC) No 861/2007 of 11 July 2007 establishing a European Small Claims Procedure in so-called cross-border disputes and also in case the Code of Civil Procedure makes it explicitly possible to adopt a decision in the matter of a proceeding without ordering a court hearing. It is not necessary to order a court hearing for the purpose of inspecting the matter of a proceeding provided such approach is not in conflict with the requirements of public interest and provided it is possible to adopt a decision in the given matter solely based on a written evidence submitted by the parties and provided the parties agree with a decision in the given matter without ordering a court hearing or explicitly have waived their right to a public hearing in the given matter. A court hearing does not need to be ordered in the so-called small claims, either. This legal institution has been introduced also in the national civil procedure. A small claim is understood as a matter with respect to which the claimed value free of accessory rights upon commencement of the proceeding is not higher than EUR 500. If the value of the matter of a proceeding changes in the course of the proceeding reaching the amount of EUR 500, from that time on the matter is regarded as a small claim. If the subject matter of the proceeding is solely the accessories right to a claim the value of which does not exceed EUR 500, the proceeding is considered to constitute a small claim, too. Nonetheless, the judge has always the right to order a court hearing if considered as necessary given the nature of the matter. A party will not be deprived of his/her right to act before the court as, in case of dissatisfaction, he/she can partake in a proceeding in the form of an appellate procedure. In such case, once the first-instance court has made a decision without a hearing, the appellate court will always order a hearing. This ensures compliance with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Strasbourg jurisprudence, which does not require a public hearing of the given matter in all instances.

Introduction of the principle of concentration

The aim of introduction of the principle of concentration is to accelerate the court proceeding, to remove unnecessary delays while simultaneously upholding the fundamental right of parties to the proceedings to judicial protection under the Article 46(1) of the Constitution of the Slovak Republic and the right to a fair trial under the Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Concentration applies to the following trials: a) trials pertaining to the right of privacy, b) trials pertaining to protection under the regulations concerning mass media, c) disputes caused or related to bankruptcy and restructuring, d) in the subject-matter of disputes concerning protection of competition, e) in the subject-matter of disputes for protection of rights breached or imperilled by unfair competition, f) in the subject-matter of disputes for breached or imperilled right to business secret.

The common denominator of such proceedings is that the court will adopt its decision in trials normally based on written evidence.

This means that the parties to a proceeding are obliged to submit or identify all material facts concerning the matter as well as respective evidence before the end of the first hearing.

At the same time, exceptions from such strict concentration have been introduced, too: also after ending of such first hearing, the court is obliged to take into consideration facts and evidence, which cumulatively:

- Question the reliability of the evidence used,

- Have materialised (appeared) after the first hearing; and which

- Could not have been presented by a party in time without his/her fault.

A necessary precondition to exercising of such exception is that the party must bear the burden of claim and evidence that the matter constitutes an admissible exception. The parties must by informed of the above obligations and consequences of failing to meet the obligations in the summons to the first court hearing in the given matter, at the latest. In such case, concentration will be exercised on the following hearing within continuation of the trial.

In other disputed matters, partial concentration prevails, which concerns submitting and designating evidence and material facts until the court ruling, which closes the inspection of evidence, is awarded.

Types of decisions

Striving to ensure timely administering of justice and prompt law enforcement, several new legal institutions have been introduced in the civil procedure.

Besides judgements based on acceptance and waiver of claims and for failure to act within the term prescribed (judgement by default), also a judgement of fair settlement of the matter was introduced. The following prerequisites relate to issuance of this type of judgement:

1/ fulfilment of conditions for continuation of the trial;

2/ existence of a proposal of all parties for awarding of such judgement;

3/ a party to the proceeding cannot waive the right to appeal against such judgement; the judgement will be annulled upon lodging an appeal in a timely manner by the party to a proceeding against any verdict and the first-instance court will continue in the proceeding as if the judgement had not been awarded.

The factual and legal basis for awarding such judgement is the current status at the time it is awarded. The court will justify the judgement orally and service the judgement immediately upon its announcement to the parties present; the judgement will be sent to absent parties within three days while the written form of the judgement does not need to contain the justification. If the judgement constitutes a judgement, which can be altered in future (i.e. a judgement containing settlement of a claim in future from annual dues or settlement in several payments) the justification will contain only facts significant with regards to the amount and further continuation of dues or payments.

European Payment Order; a regulation, which is in the civil procedure a reaction to the Regulation of the European Parliament and the Council (EC) No 1896/2006 of 12 December 2006 creating a European payment order procedure (Official Journal of the EU L 399, 30/12/2006).

The order of settlement constitutes a new form of a decision issued in summary proceeding. A payment order can be issued solely in relation to an obligation to pay a monetary amount. An order of settlement aims at an other-than-monetary obligation (e.g. to surrender a certain object, to supply or conduct certain work or action for the petitioner, to refrain from acting, to impose an obligation to enter into agreement, to apologise or to refrain from doing something). An order of settlement can be issued in a summary proceeding (a) also without a petitioner’s explicit request, (b) without hearing the defendant, (c) in case the petition exercises a right to settlement of an obligation other than payment of a monetary amount, and (d) the right to settlement arises from facts furnished by the petitioner, i.e. awarding an order of settlement is not explicitly conditioned by a requirement that the petitioner needs first to document the existence of an exercised obligation. The court needs to have another sufficient basis for its awarding used for reviewing justifiability of the respective claim. This is set in the requirement for precise and exhaustive description of the factual basis. When issuing the order of settlement, the court takes into consideration facts furnished by the petitioner. An order of settlement may only be issued by a court and not by a senior court clerk. In the order of settlement, the court orders the defendant to fulfil the obligation ordered and to cover the legal expenses or alternatively, to file an appeal against the order of settlement. The period for settlement or for filing an appeal is designated by the court and cannot be shorter than 15 days from delivery of the order of settlement to the defendant. An appeal is to be filed at the court, which issued the respective order of settlement. Similarly to the legal regulation governing the payment order it is possible to prevent an order of settlement from becoming an effective final judgement by timely filing an appeal. An appeal against an order of settlement needs to be justified with respect to the matter of a proceeding. The defendant is to be instructed in the order of settlement that the court will reject an appeal filed without justification in the matter of the proceeding. The court will not call on the defendant to provide justification with respect to an appeal against an order of settlement. An order of settlement cannot be awarded if the residence of the defendant is unknown or if the order of settlement is to be delivered to the defendant abroad. In case an order of settlement is to be delivered abroad to the petitioner, its awarding is possible. If a court does not award an order of settlement, it will order a court hearing. An order of settlement can be awarded for the benefit of also several petitioners or against several defendants (a joinder of parties). If in a petition the right to settlement is exercised, which is in evident conflict with legal regulations, the court will award, with the consent of the petitioner, an order of settlement only with respect to the part of the petition not conflicting with the law. Upon giving consent, only such part of the petition will become the matter of proceeding and the court will not decide with respect to the remaining part. In case a right to settlement of other-than-monetary obligation is being exercised under a consumer contract and the defendant is a consumer, the court will not award an order of settlement in case the contract contains unacceptable terms and conditions. An order of settlement needs to be delivered to the defendant by personal delivery, any substitute service is excluded. In case an order of settlement cannot be delivered to at least one defendant, the court will revoke it in full extent. This is not applicable if an order of settlement relates to several parties, each of whom acts on his/her own behalf. Normally, the court will revoke an order of settlement together with another act in the matter of the proceedings (e.g. with summons to the hearing) or together with an act by which the trial is closed. The court can call on the petitioner to provide information about the place of defendant’s residence if he/she possesses such information and will also instruct him/her as to the consequences pertaining to impossibility of service of an order of settlement. An order of settlement, against which an appeal with justification is not filed, has the effect of a final judgement. If at least one defendant files on time an appeal with justification in the matter of the proceeding, the order of settlement shall be annulled under a law in full and the court will order a hearing. An appeal to be decided by the court which awarded the respective order of settlement, shall constitute a remedy solely against the verdict pertaining to legal cost. The court will, by means of a resolution, reject an appeal filed with delay, without justification in the matter of proceeding or by an unauthorised person. In case conditions pertaining to rejection of an appeal are not fulfilled, the court will send the appeal, without undue delay, to the petitioner and can also call on him/her to take a position on the appeal within a period designated by the court.

Appellate court hearing

In an appellate proceeding, a trial can be effectuated with or without a hearing. Neither the Convention for the Protection of Human Rights and Fundamental Freedoms requires nor the European Court of Human Rights case law implies that it would be necessary to conduct public hearings in all judicial instances. The principal form of a hearing pertaining to an appeal is a trial without a hearing. This means that if the first-instance court adopted a decision at a court hearing, the appellate court does not necessarily have to order a hearing. An appellate court can adopt a decision without ordering a hearing only if the decision is incorrect as to its legal aspects. An appellate court can order a hearing anytime if considered necessary. An appellate court cannot adopt a decision on the factual basis without a trial if: