CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juin 2015

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SLOVAKIA   (Application no. 72493/10)                     JUDGMENT     STRASBOURG   9 June 2015   FINAL   09/09/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of DRAFT - OVA a.s. v. Slovakia, The European Court of Human Rights (Third Section), sitting as a   Chamber composed of:   Josep Casadevall, President,   Luis López Guerra,   Ján Šikuta,   Kristina Pardalos,   Johannes Silvis,   Valeriu Griţco,   Branko Lubarda, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 19 May 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 72493/10) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2010 by a private joint-stock company established under the laws of the Czech Republic, DRAFT - OVA a.s. (“the applicant company”). 2.     The applicant company was represented by Advokátska kancelária JUDr. Radomír Bžán, s.r.o., a law firm with its registered office in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.     The applicant alleged, in particular, that the quashing of a final and binding judgment in its favour following an extraordinary appeal on points of law lodged by the Prosecutor General at the request of the defendant, an   entity in which the State was a major shareholder, had breached its rights under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1. 4.     On 11 June 2013 the application was communicated to the Government. At the same time, the Government of the Czech Republic were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), in response to which they submitted that they had no intention of so doing. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant company was established in 1993 and has its registered office in Opava (the Czech Republic). A.     Background 6.     The present application concerns claims against a Slovak gas company (“the defendant”) dating back to 1998 when the defendant was still a State ‑ owned enterprise and when its director and statutory representative was Mr J.D. It came to light subsequently that, at the time, Mr J.D. had issued a number of promissory notes ( vlastná zmenka ) in the name of the defendant for large amounts of money (see Michaela Huserová, Administrator in Bankruptcy of Union banka, a.s. in liquidation and Stroden Management Limited v. Slovakia (dec.), no. 760/04, 9 November 2010). 7.     Prior to becoming the statutory representative of the defendant, Mr   J.D. had served a term as Minister of Industry and two terms as Minister of the Economy. In 1999 he was murdered in circumstances that are yet to be clarified. 8.     The promissory notes have always been contested by the defendant. Nevertheless, they have been negotiated among many parties and have given rise to a deal of litigation, including the proceedings in the present case. They have also attracted extensive media attention. 9.     In 2001, the defendant was transformed into a   joint ‑ stock company. It then underwent privatisation and 49% of its shares were sold to private foreign investors. 10.     The contract for the privatisation of the defendant contains a clause pursuant to which the State agreed to indemnify the investors for any loss they might incur on account of the promissory notes signed by Mr J.D. 11.     Of relevance for the present application is the fact that at the time, 51   % of the defendant’s shares were held by the State, while the remaining 49   % were held by a private party. At present, the defendant is wholly owned by the State. B.     Action 12.     On 23 December 2005 the applicant company instituted proceedings against the defendant before the Bratislava V District Court ( Okresný súd ). Then and at all stages of the proceedings, it was represented by a   lawyer. The applicant company relied on a promissory note for the payment of the equivalent of some 11,350,000 euros (EUR) signed by Mr J.D. in the name of the defendant on 29 September 1998. The date of issue indicated on the promissory note was 1 October 1998. On the basis of that note and four endorsements on it, the applicant company claimed to be the holder of the note and sought a   judicial order for the defendant to pay the above-mentioned amount with interest and some additional associated amounts. 13.     On 17 February 2006, in summary proceedings, the District Court issued a payment order ( zmenkový platobný rozkaz ) for the amounts claimed. The defendant protested ( námietky ) and appealed ( odvolanie ), but the order was upheld in ordinary proceedings by, respectively, the District Court on 21 May 2007 and the Bratislava Regional Court ( Krajský súd ) on 28 April 2009. 14.     Both the District Court and the Regional Court held hearings at which the legal representatives of the parties and two witnesses were heard and documentary evidence as adduced by the parties was examined. 15.     The courts concluded that the promissory note had been validly issued in the name of the defendant by Mr J.D.; that, at the time of issue, the note had been incomplete as it had had no maturity date; and that its maturity date, 1 November 2005, had been added to it later. The courts dismissed the defendant’s claims that the note had been issued for payment “at sight”, that it had accordingly been intended to be presented for payment within a   year of its date of issue (section 34 of the Bills of Exchange, Promissory Notes and Cheques Act (Law no. 191/1950 Coll. – Zákon zmenkový a šekový ) – “the Act”); and that, in the absence of such presentation, it had been statute-barred three years after its maturity date (section 70 of the Act). The courts rather considered the note to be a blank promissory note, in which case the missing maturity date would be added later under an   agreement entered into for that purpose, as envisaged by section 10 of the Act. Under that provision, in the circumstances, the only argument that the defendant could raise against the applicant company was that it had acquired the note in bad faith or that, in acquiring it, the applicant company had been guilty of gross negligence. As regards the adding of the maturity date to the promissory note, the courts heard as a witness one of the previous holders of the note – A., who at the same time was an executive of another of the note’s previous holders. He submitted before the court that he had had an oral understanding with Mr J.D. about adding the maturity date to the note and that the date had accordingly been added to the note by another previous holder of the note. The courts further noted that the contract under which the applicant company had acquired the promissory note contained a declaration by the previous holder that it had already acquired the note with the maturity date, and that the maturity date had been added to the note in compliance with the arrangements previously made. In the courts’ assessment, the applicant company had acted in reliance on those assurances and it was up to the defendant to disprove them, which it had failed to do. It had equally failed to establish the other defences it had sought to rely on. 16.     As no ordinary appeal lay against the appeal court’s judgment, following its service on the parties, the matter was resolved with the force of a final and binding decision ( právoplatnosť ) on 8 June 2009. C.     Extraordinary review 17.     On 5 June 2009 the defendant filed a petition with the Office of the Prosecutor General (“the PG”) requesting the latter to exercise his discretionary power to challenge the above-mentioned judgments by way of an   extraordinary appeal on points of law ( mimoriadne dovolanie – “extraordinary appeal”). 18.     The PG decided to accede to the request and on 10   June 2009 he challenged the contested judgments in the Supreme Court ( Najvyšší súd ). The PG relied on Article 243h § 3 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”) (see paragraph 49 below), which provides that reasons for an extraordinary appeal may be submitted within sixty days of the introduction of the extraordinary appeal if there is the risk of considerable economic damage or other irreparable consequences. In that respect, the PG argued that the contested judgments were directly enforceable and that the volume of the case file was extensive. The reasons for appealing would therefore be submitted later. 19.     At the same time, the PG requested that the enforceability of the contested judgments be suspended. Pursuant to Article   234ha of the CCP (see paragraph 50 below), by virtue of this request, the enforceability was immediately and automatically suspended, pending the Supreme Court’s decision to dismiss the request or, in the absence of such a decision, pending the outcome of the proceedings before the Supreme Court on the extraordinary appeal. In support of his request, the PG submitted that the defendant, in which the State was a major shareholder, had been ordered to   pay a large sum of money. If that sum were to be paid and if the Supreme Court were to allow the extraordinary appeal, it would give rise to a claim for repayment of unjustified enrichment in an equally significant amount. Such a claim would not be secured and its settlement would be uncertain and risky. 20.     In the absence of a decision on the part of the Supreme Court to   dismiss the PG’s request, the enforceability of the payment order in the applicant company’s favour remained suspended until the PG’s extraordinary appeal had been decided on its merits (see below). 21.     Meanwhile, on 23 July 2009, the PG had submitted the reasons for his appeal. 22.     The main argument was that the courts had erred in the application of the law (especially section 10 of the Act) to the facts that were decisive for assessing whether the applicant company had acted with gross negligence in acquiring the promissory note, in particular in relation to adding the maturity date. In the PG’s view, it had been grossly negligent of the applicant company to have contented itself with the declarations of the seller as to the existence of and compliance with the arrangements for adding the maturity date to the note (see paragraph 15 above in fine ) without pursuing any proper enquiries. This was all the more so as it was generally known that the defendant had contested the notorious “promissory notes of Mr J.D.”, and that in view of the sum of money concerned the note in the present case was clearly outwith the ordinary course of business. Moreover, it was obvious how little the applicant company had paid to acquire the promissory note and the payment conditions were peculiar. On the latter points, the PG submitted that the price payable for the promissory note by the applicant company was no more than 50   % of its nominal value and that 98.8   % of that price was payable only on collection of payment under the note. Those and other elements indicated that the transactions in respect of the note had been speculative in nature. In the PG’s view, in those circumstances, the applicant company had been grossly negligent; the defendant was entitled to claim that there had been no valid arrangement for adding the maturity date to the promissory note; and it was up to the applicant company to show that such an   arrangement had existed and had been complied with, failing which the note was payable “at sight,” and any claims based on it were statute-barred. In the PG’s submission, requiring the defendant to show that no arrangement for adding the maturity date to the note had existed would amount to a probatio diabolica because the non-existence of a fact was not capable of being proven. 23.     On 4 September 2009 the applicant company submitted its observations in reply to the extraordinary appeal and to the defendant’s petition for that remedy. It disputed the PG’s arguments and submitted, inter alia , that the burden of proof in respect of the allegedly unlawful alteration of the note after its issuance rested solely with the defendant. The applicant company had been under no duty to enquire into the existence of and compliance with any arrangement for adding the maturity date to the note. In that respect, it emphasised that in judicial proceedings concerning promissory notes, the burden of proof in principle always rested with the issuer, and only with the issuer. 24.     On 12 May 2010 the Supreme Court, sitting in chambers, allowed the appeal, quashed the contested judgments and remitted the matter to the District Court for a new determination. It did so having in principle accepted the line of argument advanced by the PG and having noted, in particular, that the testimony of A. as regards the alleged understanding with Mr J.D. about the adding of the maturity date to the note had been contradicted by other evidence and was as such implausible. 25.     The Supreme Court’s judgment was served on the applicant company’s lawyer on 7 July 2010. As a result, the case was remitted to the first instance. The further course of the proceedings before the ordinary courts is described in paragraphs 31 et seq . below. D.     Constitutional complaint 26.     On 6 September 2010 the applicant company challenged the Supreme Court’s judgment of 12 May 2010 in the Constitutional Court ( Ústavný súd ) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). The applicant company relied, inter alia, on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, invoking its rights to a fair trial, in particular access to a court, equality of arms, protection of property, as well as the principles of legal certainty and rule of law. The applicant company argued that there was a systemic problem as the principle of the parties’ procedural equality had been breached by the mere existence of the extraordinary appeal proceedings. The dispute over the promissory note was of a commercial and as such private-law nature. Any room for interference by the State with judicial proceedings and final and binding decisions in such a dispute was therefore particularly narrow. The position in the present case was aggravated by the fact that the PG’s extraordinary appeal favoured the defendant, an entity in which the State had a majority interest. In addition, the applicant company contested the application of the existing rules in its specific case, since the PG had interfered by extraordinary means with a final and binding judgment in the State’s favour. The applicant company pointed out the particular circumstances of the case, including the fact that the two lower levels of jurisdiction had determined the matter unanimously, that they had already dealt with the arguments that were subsequently reiterated by the PG, and that the re ‑ assessment of the case had involved not only questions of law, but also questions of fact. In conclusion, the interference with the final and binding judgment in favour of the applicant company had been without any acceptable justification. Furthermore, the applicant company noted that the Government of the Slovak Republic had previously publically declared that what had been termed “[Mr J.D.]’s promissory notes” would never be honoured. In view of that declaration as well as the Government’s contractual obligation to   indemnify investors in the defendant for any losses that they might incur on account of the promissory notes signed by Mr J.D (see paragraph 10 above), the extraordinary appeal had not served any greater good as envisaged by the applicable statute, but had rather served the Government’s political and economic interests. As the Supreme Court had not clearly distanced itself from those considerations, it could not be regarded as independent and impartial. Lastly, as the quashed judgments had been final and binding, they had constituted possessions and their quashing was an interference with those possessions, in violation of Article 1 of Protocol No. 1. 27.     On 11 November 2010 the applicant company added further reasons to its constitutional complaint, relying on the Report on the Independence of the Judicial System adopted by the Venice Commission at its 82 nd plenary session on 12 and 13 March 2010, with particular reference to the revision of judges’ decisions outside the appeals procedures (see paragraphs 58 et seq . below). In addition, the applicant company pointed out the circumstances of the adoption of the amendment (Law no. 484/2008 Coll.) to the CCP allowing the reasons for extraordinary appeals to be added at a later date, and for such appeals to have “automatic suspensive effect”. In particular, the amendment had been adopted with retroactive effect and with the aim of reversing the outcome of a specific, albeit unrelated, dispute. 28.     On 26 April 2011 the Supreme Court, as the defendant to the complaint, submitted its observations in reply and, on 12 January 2012, the applicant company submitted a rejoinder. 29.     On 19 January 2012 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It observed that the statutory framework for the examination of individual complaints did not allow it to examine the compliance of statutes with the Constitution and international instruments as such. It could therefore only review the application of the existing statutory rules in the applicant company’s individual case. It also observed that the statutory provisions on extraordinary appeals were an   integral part of the legal system of Slovakia and that there was a   presumption of their constitutionality. It further noted that the PG had no power to lodge such an appeal of his or her own motion, but could only do so following the filing of a petition by those concerned, on grounds strictly defined by the CCP and within the time-limit prescribed by it. In the present case, the PG’s extraordinary appeal had been prompted by a petition by the defendant and it had relied on appropriate grounds. In that regard, the Constitutional Court noted that the extraordinary appeal was concerned with the distribution of the burden of proof, which was a   preliminary but crucial matter in the case at hand. On the facts, it was determinative for its outcome in that, in the event of a failure to   establish the given elements of the case, the party upon which the burden of proof rested would automatically lose it. The Constitutional Court also noted the Supreme Court’s finding that the rigidity of the lower courts’ interpretation of the statutory premise that the burden of proof in this type of case rested on the issuer of the promissory note had been arbitrary and one-sided, and that its effects had suppressed the object and purpose of the CCP and the Act. Thus, in the Constitutional Court’s assessment, the extraordinary appeal had not been motivated merely by a differing legal view but rather by an   error of procedure. It thus satisfied the requirements of the Convention for an   acceptable interference with an adjudicated matter. As to the merits of the case, the Constitutional Court noted that it was not a court of further appeal against decisions of the ordinary courts. It found the reasoning of the Supreme Court congruous and convincing, and found no constitutionally relevant unfairness, arbitrariness or irregularity in the proceedings. Furthermore, the Constitutional Court drew a distinction between the PG, who had lodged the extraordinary appeal, and the Supreme Court, which had decided on it, finding no grounds to doubt the Supreme Court’s independence and impartiality. In any event, it had been open to the applicant company to challenge any of the Supreme Court’s judges involved in the case for bias, which it had not done. As to equality of arms, the Constitutional Court noted that the applicant company had had – and had amply used – the opportunity to   present its views as regards the extraordinary appeal, and found that the applicable guarantees had been respected. As regards the applicant company’s property claim, the Constitutional Court reiterated its established case-law, pursuant to which a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established. 30.     The Constitutional Court’s decision was served on the applicant company’s lawyer on 16   February 2012. It was not amenable to appeal. E.     Further course of the proceedings 31.     Following the quashing of the judgments of 21 May 2007 and 28   April 2009 by the Supreme Court on 12 May 2012, the case was remitted to the District Court for re ‑ examination in the light of the principles set out by the Supreme Court. 32.     The action was thus re-examined and again dismissed at first instance by the District Court on 29 October 2012 and, following an appeal lodged by the applicant company, by the Regional Court on 19   September   2013. 33.     The District Court held a hearing and new evidence was taken. Having examined the evidence and in view of the legal opinions expressed by the Supreme Court, the court concluded that the applicant company had been mala fides in acquiring the promissory note, and that it had failed to show that the note had been issued as a blanket note or that any arrangement had been made for adding a maturity date to it. Thus, the note had been payable “at sight” and any claims based on it were statute-barred. 34.     Following service of the written version of the Regional Court’s judgment on the parties, the dismissal of the action became final and binding on 23 October 2013. F.     Another similar case brought by the applicant company 35.     In another case the applicant company sued the same defendant for payment under another promissory note, also issued by Mr J.D. on behalf of the defendant on 1 October 1998. The note was for the same amount as in the present case and the relevant circumstances were similar. 36.     Following the applicant company’s action, a payment order was issued on 6 March 2006. However, it was then quashed on 21 May 2007 following a protest by the defendant. The latter decision was upheld on 29   January 2008 following an appeal lodged by the applicant company. 37.     The applicant company subsequently twice petitioned the PG to   challenge by way of an extraordinary appeal the judgments quashing the payment order and dismissing its appeal. Among other things, it referred to the PG’s extraordinary appeal of 10 June 2006 in the present case (see paragraphs 18 et seq . above) and submitted that the judgments mentioned in the preceding paragraphs contained the same structural and technical flaws, save for the outcome, which that time had been to the applicant company’s disadvantage. 38.     In a letter of 5 October 2010 the PG informed the applicant company that its repeated petition had ultimately been dismissed. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Civil Procedure 1.     Various provisions 39.     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. 40.     Under Article 101 § 1, the parties to the proceedings are required 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. 41.     Pursuant to Article 120 § 1, the parties to the proceedings are required to adduce evidence to uphold their claims. 42.     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. 2.     Appeals on points of law 43.     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 lies with the Supreme Court (Article 243). 3.     Extraordinary appeals 44.     Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq . 45.     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). 46.     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). 47.     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)   incorrect assessment of points of law. 48.     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). 49.     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). 50.     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. 51.     The provisions of Article 243h §§ 3 and 4 and Article 243ha §§ 1 and 2 mentioned in the two preceding paragraphs were introduced in the CCP by an amendment (Law no. 484/2008 Coll.) which entered into force on 28   November 2008. 52.     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). 4.     Reform of the CCP 53.     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 ). B.     The Constitutional Court’s practice concerning extraordinary appeals 54.     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 substantively correct. 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 the outcome of the procedure (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. 55.     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. 56.     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 entirely within the PG’s 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. C.     Bills of Exchange, Promissory Notes and Cheques Act 57.     The relevant part of the Act is modelled along the lines of the 1930 Geneva Convention Providing a Uniform Law for Bills of Exchange and Promissory Notes. The relevant parts of the Convention provide as follows: “Article 10 If a bill of exchange, which was incomplete when issued, has been completed otherwise than in accordance with the agreements entered into, the non-observance of such agreements may not be set up against the holder unless he has acquired the bill of exchange in bad faith or, in acquiring it, has been guilty of gross negligence. ... Article 17 Persons sued on a bill of exchange cannot set up against the holder defences founded on their personal relations with the drawer or with previous holders, unless the holder, in acquiring the bill, has knowingly acted to the detriment of the debtor. ... Article 33 1.   A bill of exchange may be drawn payable: At sight; ... At a fixed date. ... Article 34 A bill of exchange at sight is payable on presentment. It must be presented for payment within a year of its date. ... Article 70 1.     All actions arising out of a bill of exchange against the acceptor are barred after three years, reckoned from the date of maturity. ... Article 75 A promissory note contains: 1.   The term ‘promissory note’ inserted in the body of the instrument and expressed in the language employed in drawing up the instrument; 2.   An unconditional promise to pay a determinate sum of money; 3.   A statement of the time of payment; 4.   A statement of the place where payment is to be made; 5.   The name of the person to whom or to whose order payment is to be made; 6.   A statement of the date and of the place where the promissory note is issued; 7.   The signature of the person who issues the instrument (maker). ... Article 76 ... 2.   A promissory note in which the time of payment is not specified is deemed to be payable at sight. ... Article 77 1.     The following provisions relating to bills of exchange apply to promissory notes so far as they are not inconsistent with the nature of these instruments, Endorsement (Articles 11 to 20); Time of payment (Articles 33 to 37); ... Limitation of actions (Articles 70 and 71); ... 2.     The following provisions are also applicable to a promissory note: ... and provisions concerning a bill of exchange in blank (Article 10). ... Article 78 1.     The maker of a promissory note is bound in the same manner as an acceptor of a   bill of exchange. ...” III.     Relevant European texts A.     Venice Commission’s Report on the Independence of the Judicial System 58.     The report was adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 82 nd Plenary Session (12 ‑ 13   March 2010). 59.     In section III 9. entitled “Final character of judicial decisions”, the report refers to Principle I(2)(a)(i) of Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the Independence, Efficiency and Role of Judges, which provides: “decisions of judges should not be the subject of any revision outside the appeals procedures as provided for by law”. The relevant part of the report continues: “It should be understood that this principle does not preclude the re-opening of procedures in exceptional cases on the basis of new facts or on other grounds as provided for by law. 66.     While the [Consultative Council of European Judges] concludes in its Opinion No. 1 (at 65), on the basis of the replies to its questionnaire, that this principle seems to be generally observed, the experience of the Venice Commission and the case law of the [Court] indicate that the supervisory powers of the Prokuratura in post-Soviet states often extend to being able to protest judicial decisions no longer subject to an   appeal. 67.     The Venice Commission underlines the principle that judicial decisions should not be subject to any revision outside the appeals process, in particular not through a   protest of the prosecutor or any other state body outside the time limit for an appeal.” B.     Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system 60.     The Recommendation was adopted by the Committee on 19   September 2012 and its relevant part reads as follows: “Recalling also that every member of the Council of Europe has accepted the principle of the rule of law and of the enjoyment by all persons within its jurisdiction of the human rights set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5); ... 2.   Where the national legal system provides public prosecutors with responsibilities and powers outside the criminal justice system, their mission should be to represent the general or public interest, protect human rights and fundamental freedoms, and uphold the rule of law. C. Common principles 3.   The responsibilities and powers of public prosecutors outside the criminal justice system should in all cases be established by law and clearly defined in order to avoid any ambiguity. 4.   As in the criminal law field, public prosecutors should exercise their responsibilities and powers outside the criminal justice system in full accordance with the principles of legality, objectivity, fairness and impartiality. ... 11.   Where the public prosecutor is entitled to make a decision affecting the rights and obligations of natural and legal persons, such powers should be strictly limited, defined by law and should not prejudice the parties’ right to appeal on points of fact and law to an independent and impartial tribunal. The public prosecutor should act independently from any other power and his or her decisions should be reasoned and communicated to the persons concerned. ... In relation to the principles of legal certainty and res judicata 22.   In order to comply with the principles of legal certainty and res judicata, the grounds upon which the public prosecutor may seek a review of the final decision of a   court should be limited to exceptional cases and the review processed within a   reasonable time limit. Except in cases where the review does not concern the rights and obligations of the parties, as set out in the decision under review, the parties to the original proceedings should be informed of the review and, should they so wish, given the opportunity to be joined to the proceedings.” C.     Opinion No. 3 (2008) of the Consultative Council of European Prosecutors (CCPE) on “The role of prosecution services outside the criminal law field” 61.     The Opinion was adopted by the CCPE at its 3 rd plenary meeting (15 ‑ 17 October 2008). In addition to the matters mentioned above, the relevant part of the summary of recommendation reads as follows: “The CCPE is of the opinion that States where prosecution services have non criminal competences should ensure that these functions are carried out in accordance with the principles governing a democratic state under the rule of law and in particular that: a.   the principle of separation of powers is respected in connection with the prosecutors’ tasks and activities outside the criminal law field and the role of courts to   protect human rights; b.   the respect of impartiality and fairness characterises the action of prosecutors acting outside the criminal law field as well; c.   these functions are carried out ‘on behalf of society and in the public interest’, to   ensure the application of law, respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court; d.   such competencies of prosecutors are regulated by law as precisely as possible; e.   no undue intervention in the activities of prosecution services occurs; f.   when acting outside the criminal law field, prosecutors enjoy the same rights and obligations as any other party and do not enjoy a privileged position in the court proceedings (equality of arms); g.   the action of prosecution services on behalf of society to defend public interest in non criminal matters does not violate the principle of binding force of final court decisions ( res judicata ) with some exceptions established in accordance with international obligations including the case-law of the Court; h.   the obligation of prosecutors to motivate their actions and to make these motivations open for persons or institutions involved or interested in the case; ... j.   the developments in the case-law of the Court concerning prosecution services’ activities outside the criminal law field is followed closely in order to ensure that the legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments;”. THE LAW I.     PRELIMINARY ISSUES 62.     The Government argued that, in so far as the applicant company had sought to challenge the existing statutory framework for extraordinary appeals, its constitutional complaint had not been an effective remedy for the purposes of Article 35 § 1 of the Convention and, consequently, its complaint before the Court had been lodged belatedly. 63.     The applicant company disagreed and submitted that the six-month time-limit had not started to run until the Constitutional Court’s decision had been served on its lawyer, namely on 16 February 2012 (see paragraph   30 above). In any event, in their view the existing statutory framework for extraordinary appeals amounted to a continuing situation that had violated its Convention rights. That situation would not come to an end until that remedy was abolished altogether. 64.     The Court observes that part of the present application concerns the mere existence of the concept of the extraordinary appeal, which in the applicant company’s view was as such incompatible with the guarantees of legal certainty. It considers that the Government’s inadmissibility objection needs no separate response because the relevant part of the application is in any event inadmissible on the following grounds. 65.     The Court reiterates that in proceedings originating in an application lodged under Article 34 of the Convention it has to confine itself, as far as possible, to the examination of a concrete case before it. Its task is not to review domestic law and practice in abstracto , but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Accordingly, Article 34 does not provide individuals with a remedy in the nature of an   actio popularis (see, for example, Klass and Others v. Germany , 6 September 1978, § 33, Series A no. 28; Slivková v. Slovakia (dec.), no.   32872/03, 14 December 2004; and Fruni v. Slovakia , no. 8014/07, § 133, 21 June 2011). 66.     The Court notes that there is an ongoing process of reform of the procedural rules in Slovakia, with particular attention being paid to extraordinary appeals. It is also aware of the particular sensitivity in Convention terms of the extraordinary appeal in certain specific types of proceedings in Slovakia (see López Guió v. Slovakia , no. 10280/12, §§   66   and 108, 3   June 2014). In view of the above-mentioned parameters of its jurisdiction, the Court will confine its examination of the present case to the applicant company’s specific situation and the concrete repercussions of the impugned legislative provisions and their implementation on the applicant company only. 67.     Conversely, in so far as the applicant company may be understood as challenging the existing legislative framework in abstracto , the relevant part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 68.     The applicant company complained that the extraordinary appeal lodged by the PG, the ensuing proceedings before the Supreme Court and the Supreme Court’s decision on it had been contrary to the guarantees of a   fair hearing by an independent and impartial tribunal under Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair ... hearing ... by an independent and impartial tribunal ... ” A.     Admissibility 69.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ arguments 70.     The applicant company alleged a breach of the guarantees of equality of arms, legal certainty and an independent and impartial tribunal. 71.     On the first count, it argued that the mere existence of the extraordinary appeal proceedings had been contrary to the equality-of-arms principle. This was all the more so in that the contested appeal had favoured the defendant, which was an entity in which the State had a majority interest; that the PG belonged to the executive power; that the lodging of the extraordinary appeal had fallen within the PG’s exclusive discretion; and that the applicant company itself had been unsuccessful in hav