CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 29 September 2016   THIRD SECTION Application no. 38092/13 Erika ŽILKOVÁ against Slovakia lodged on 6 June 2013 STATEMENT OF FACTS 1.     The applicant, Ms Erika Žilková, is a Slovak national who was born in 1970 and lives in Galanta. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     In 1993 the applicant, who at that time bore the name Erika Bittová, stood as guarantor for the repayment of a loan taken out by a company from a bank. That company would later become insolvent and the bank would transfer its claims from this transaction to another entity. (The bank and that entity are hereinafter jointly referred to as “the creditor”.) 4.     On 17 September 1998 the creditor brought an action in the Trnava Regional Court against the applicant and other defendants seeking an order for payment of money in connection with the above-mentioned loan. 5.     The applicant and the other defendants were jointly represented in the proceedings by a lawyer, A. 6.     A first-instance judgment of 22 March 2001 dismissing the action was quashed by the Supreme Court on 14 December 2001 following an appeal by the creditor. 7.     On 12 January 2005 the Regional Court ruled on the action again, this time by granting it and, in so far as the applicant was concerned, by ordering her and two other defendants to pay the creditor jointly and severally the equivalent of some 222,500 euros (EUR). 8.     On 9 November 2005 the Supreme Court reversed that judgment and dismissed the action following an appeal by the defendants. 9.     In a letter of 18 November 2005 addressed to the applicant, A. referred to a meeting that had taken place between them on 15 November 2005 and confirmed their agreement to terminate the applicant’s legal representation. In addition, the letter referred to the applicant’s lack of cooperation, the courts’ failure to communicate with the applicant via A., and and the fact that the courts had dealt directly with the applicant, rather than communicating with the applicant via A. 10.     On 23 December 2005 the applicant presented herself at the registry of the Regional Court with a view to inspecting the case file. A case-file note concerning this inspection attests that: “[i]t has been established from the case file that [the applicant] was not represented by [A.], as indicated ... in the Supreme Court’s judgment [of 9 November 2005] and, for that reason, these decisions were not served on her. Therefore, [a copy of] the Supreme Court’s judgment [of 9 November 2005] has now been handed over to her, as a party to the proceedings, which she confirms by her signature.” 11.     On 30 June 2008, sitting as a cassation court, the Supreme Court quashed the judgment of 9 November 2005 following an appeal by the creditor on points of law. As a result, it became incumbent on the Supreme Court, sitting as a court of appeal, to determine anew the defendants’ appeal against the Regional Court’s judgment of 12 January 2005 granting the action. 12.     On 28 October 2009 the Supreme Court ruled on that appeal again, once more reversing the judgment of 12 January 2005 and dismissing the action. In response, the claimant again appealed on points of law. 13.     On 23 March 2012 the Supreme Court allowed the claimant’s above-mentioned second appeal on points of law by quashing the judgment of 28   October 2009 and upholding the first-instance judgment of 12   January 2005 granting the action. In addition, the Supreme Court ordered the applicant and four other defendants jointly and severally to pay the creditor 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 claimant’s cassation appeal through their legal representative, A. 14.     On 16 July 2012 before the Constitutional Court the applicant challenged the Supreme Court’s judgment of 23 March 2012 by way of a complaint 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 at the Regional Court 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 the applicant’s submission, therefore, the contested judgment had been determined in a manner that had breached her right to legal assistance (Article 47 § 2 of the Constitution) and to a fair trial (Article   6 § 1 of the Convention). 15.     On 13 November 2012 the Constitutional Court declared the complaint inadmissible. It noted that, in its judgment of 9 November 2005, the Supreme Court had observed that it had not been established that the applicant had terminated her representation by A. The case file had only contained a note recording the termination of her legal representation by a certain B., who, however, had not been involved in that case at all. In the Constitutional Court’s view, had the applicant’s representation by A. been actually terminated as she claimed, she should have contested the relevant part of the judgment of 9   November 2005. 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. COMPLAINT 16.     The applicant complains under Article 6 § 1 of the Convention that the Supreme Court deprived her of the possibility of being appraised of the claimant’s appeal on points of law against the judgment of 28 October 2009 and of responding to it and that the Constitutional Court denied her protection in that respect. QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?   In particular, was her right of access to a court and the principle of equality of arms respected, in view of her allegations that she had been unaware of the creditor’s appeal on points of law against the judgment of 28 October 2009, that she had consequently been denied any opportunity to respond in respect of that appeal, and that the Constitutional Court had failed to provide her with any protection in that respect?