THE DECISION OF THE CONSTITUTIONAL COURT OF THE SLOVAK REPUBLIC DATED 09.08.2023 ON DELIVERY OF DOCUMENTS IN CIVIL PROCEEDINGS.

#89The decision of the Constitutional Court of the Slovak Republic dated 09.08.2023 on delivery of documents in civil proceedings.

— The Constitutional Court of the Slovak Republic (hereinafter referred to as the "Constitutional Court") in the proceedings under case No. IV. ÚS 53/2023 decided on the Constitutional complaint of the Complainant, by which she argued against the violation of the right to a fair trial and the right to judicial protection, due to the procedure of the District Court.

The Complainant is a claimant in the bankruptcy proceedings before the District Court. The Complainant, through her attorney, filed the Debtor's Petition for Bankruptcy ('the Petition') with the District Court. Because the Complainant had counsel, the District Court should have delivered documents only to the attorney. However, the District Court did not deliver documents to Complainant's attorney.

The District Court entered an Order directing the Complainant to cure the deficiencies in the Petition, and the District Court subsequently entered an Order dismissing the Petition for Bankruptcy on the ground that the Complainant had failed to cure the deficiencies in the Petition that the District Court had directed the Complainant to fix.

The Complainant advised the District Court of the impropriety of delivery and advised the District Court of its duty to deliver service of process to the attorney, and further requested the District Court to continue the proceedings. The District Court responded to the Complainant's notice and served the documents on her attorney.

In the Constitutional Complaint, the Complainant argued that, due to the District Court's improper delivery of the documents, she was unable to cure the defects in the Motion and to respond to the case, due to the fact that she believed that all documents were being delivered to her attorney, so she did not respond to the District Court's request. As a result of the failure to serve the summons to cure the deficiencies in the Petition on the Complainant's attorney, the District Court denied the Complainant's Petition for Bankruptcy.

The Constitutional Court stated that pursuant to Section 196 of Act No 7/2005 Coll. on Bankruptcy and Restructuring, "unless otherwise provided for in this Act, the provisions of the Civil Procedure Code shall apply mutatis mutandis to the commencement of bankruptcy proceedings, bankruptcy proceedings, restructuring proceedings, restructuring proceedings and insolvency proceedings". Pursuant to Article 110(1) of Act No 160/2015 Coll., the Civil Procedure Code, "If a party has a representative with a power of attorney for the entire proceeding, the document shall be served only on that representative. A party shall also be served with the document if the party is to perform something personally in the proceedings or if the court so decides with regard to the nature of the case. The summons to pay the court fee as well as the procedural instructions issued by the court shall be delivered only to the representative'. Accordingly, both the summons and the procedural notices issued by the District Court should have been served only on the Complainant's attorney.

The Constitutional Court held that the District Court's order violated the Complainant's fundamental right to judicial protection and the right to a fair trial, on the ground that if a party has an attorney with power of attorney for the entire proceeding, the court is obliged to serve documents on that attorney, and therefore if a party has an attorney with power of attorney for the entire proceeding, service only on the party is ineffective. The Constitutional Court further set aside the impugned Order and remanded it back to the District Court for further proceedings. The District Court will be required to deliver a notice to cure the defects in the Petition to the Debtor's attorney and to reconsider the Bankruptcy Petition, subject to the legal opinion of the Constitutional Court as expressed in this Decision.