Slovakia - Supreme Court of the Slovak Republic, 30 November 2012, M.L.B. v Ministry of Interior of the Slovak Republic, 10Sža/56/2011
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
Facts:
The Regional Court in Bratislava issued an order in which it rejected the applicant’s appeal against a decision of the Migration Office of the Ministry of Interior of the Slovak Republic on the grounds that the appeal was filed out of time.
The Regional Court stated in the grounds of its order that the contested decision of the defendant was delivered to the applicant’s legal representative in a procedure before the defendant for the first time on 2 February 2011. The second attempt to deliver the decision took place on 3 February 2011, and was also unsuccessful. The package containing the contested decision was therefore placed in the post on 3 February 2011. The addressee, the applicant’s legal representative in the procedure before the defendant, received the package on 15 February 2011.
In the opinion of the Regional Court, expressed in the grounds of the contested order on 2 February and 3 February 2011, two unsuccessful attempts were made to deliver the package containing the contested decision, and on 3 February 2011 the package was placed in the post. With reference to the provisions of Section 24(2) of Act No 71/1967 Coll. on administrative procedure (the “Administrative Procedure Code”) the legal fiction of delivery of the decision on 6 February 2011 applies. The thirtieth and final day for filing the appeal was thus 8 March 2011, which fell on a Tuesday. The applicant, however, filed the application – the appeal against the defendant’s decision in the post on 16 March 2011, and thus the eighth day after the statutory deadline for filing an appeal had expired.
The applicant filed an appeal against this order with the Supreme Court of the Slovak Republic, and requested that the appellate court reverse the order of the Regional Court and refer the case back to the Regional Court.
Decision & reasoning:
The law relating to the delivery of a package to a representative with a power of attorney for an entire procedure lays down a time period, which is counted from the date of return of an undelivered package to the administrative authority when it is not possible to deliver the document to the entrepreneur-natural person at the known or stated address.
The legal case in question did not, however, involve such an eventuality, since it was possible to deliver the package to the address stated by the legal representative, who received the package on 15 February 2011.
The Supreme Court of the Slovak Republic held that the legal fiction of delivery as laid down in the provisions of Section 24(2) of the Civil Court Procedure (this should have been “Administrative Procedure Code“) did not apply in the case in question, as the provisions of Section 25 of the Civil Court Procedure (this should have been “Administrative Procedure Code") must be followed when delivering documents to a representative with a power of attorney for the entire procedure.
The Supreme Court of the Slovak Republic is of the opinion that the Regional Court in Bratislava should have applied Section 25(5) of the Administrative Procedure Code to the delivery of the documents for a representative with a power of attorney for the entire procedure.
It can be seen from the contents of the administrative file that the legal representative received the decision of the defendant ČAS: MU 322-99/PO-Ž-2008 of 18 January 2010 on 15 February 2011 within the collection period at the post office. The time period for filing an appeal was counted from 16 February 2011 and ended on 17 March 2011 – a Thursday. The appeal was posted on 16 March 2011, and thus within the statutory thirty-day time period.
Outcome:
The Supreme Court of the Slovak Republic set aside the order of the Regional Court in Bratislava and referred the case back to that Court.
Observations/comments:
Predsedníčka senátu: JUDr. Jana Henčeková, PhD.