Judges of the Supreme Administrative Court of the Slovak Republic activate the Grand Panel

The Supreme Administrative Court shall report in turn on cases referred to or decided by the Grand Panel.

Decision 1:

Granting legal aid and examining the conditions leading to the payment of legal aid monies on the grounds that the matter is worthy of special protection and the need to ensure access to justice, ex officio (decided in February 2022).

The Grand Panel of the Supreme Administrative Court, by judgment of 24 February 2022, Case No. 1 Vs 1/2021, dismissed the applicant’s cassation complaint in the action against the Legal Aid Centre. It thus ruled for the historic first time as a Grand Panel of the Supreme Administrative Court.

The applicant had applied to the Legal Aid Centre for an award of legal aid before the court in a case concerning compensation for damage caused in the exercise of public authority. By the contested decision, the defendant did not grant the applicant’s claim for legal aid. The defendant concluded that the application was manifestly unsuccessful.

The Regional Court in Košice dismissed the action. It held that the case was manifestly unsuccessful. The applicant lodged a cassation complaint against the judgment.

On 21 February 2020, the case was referred to the Supreme Court of the Slovak Republic and registered under Case No. 1 Sžk 7/2020. In examining the case, the Panel of the Supreme Court found that it was apparent from previous decisions of the Supreme Court that, when considering an application for legal aid, the defendant was obliged to consider it also from the point of view of whether it was necessary to proceed to the payment of money for the purpose of providing legal aid on the ground that it was a matter deserving of special protection and the need to ensure access to justice if the applicant did not otherwise meet the statutory conditions, and to justify why, if necessary, it had not done so, even without the applicant requesting that it should do so. The Panel of the Supreme Court disagreed with this conclusion and therefore referred the case to the Grand Panel.

The question under consideration was therefore whether the Legal Aid Centre is obliged to consider, when assessing an application for legal aid, whether there are grounds for proceeding with the payment of monies for the purposes of legal aid on the grounds that it is a matter worthy of special protection and the need to ensure access to justice, where the applicant does not expressly seek to proceed under that provision in his application.

The Grand Panel first commented on its function as the unifying body of the Supreme Administrative Court. It took the view that the corpus of case-law of the former Administrative Chambre of the Supreme Court is a rich and inspiring source of reasoning and conclusions for the Supreme Administrative Court, which it must always deal with in argumentation as if it were its own decisions. It is therefore appropriate to regard the decisions of the Supreme Court as decisions of the Court of Cassation for the purposes of Article 22(1) of the Administrative Procedure Code (which establishes the jurisdiction of the Grand Panel of the Supreme Administrative Court). In doing so, the Supreme Administrative Court preserves, with regard to the continuity of competence existing between it and the Supreme Court as an administrative court, the legal certainty of the parties to the proceedings and the good faith in the pre-existing settled decision-making practice in the administrative judiciary.

The Grand Panel of the Supreme Administrative Court took the view that the questions referred by the referring Panel must be answered taking into account the structure of Article 46(1) of the Constitution and the interrelation between the regime of statutory entitlement to legal aid and the regime which, on the contrary, provides only for the possibility for the Director of the Legal Aid Centre, after a prior opinion of the Board of the Legal Aid Centre, to decide on the payment of sums of money for the purpose of providing legal aid to persons who do not otherwise meet the conditions for legal aid under Act No 327/2005 Coll.

In the Grand Panel’s view, it cannot be inferred from the relatively open-ended clause in Article 46(1) of the Constitution that it imposes an obligation to provide (both judicial and extrajudicial) legal protection outside the contexts in which the person defending his or her rights seeks that protection. Article 46(1) of the Constitution does not therefore imply a right to ex officio proceedings defending the rights of the person concerned, nor to any ex officio objections in such proceedings.

It should also be pointed out that the right to legal aid is not required by the Convention for the Protection of Human Rights and Fundamental Freedoms without more, nor is the right of access to a court automatically infringed by the absence of legal aid. The Grand Panel did not identify in the case-law of the European Court of Human Rights that it was necessary to examine the possible title of a claim to legal aid even without the person to whom the legal aid was to be granted having claimed that claim (by some title).

The Grand Panel also referred to the possibility of a so-called preliminary consultation, in which the conditions for claiming legal aid are explained to the applicant.

Having considered all the facts, the Grand Panel is of the opinion that the Legal Aid Centre is not obliged to examine an application for legal aid submitted to it, even under a statutory provision under which the Director of the Legal Aid Centre could, after obtaining the prior opinion of the Legal Aid Centre’s Board, decide to pay monies for the purpose of providing legal aid to an applicant who does not otherwise qualify for legal aid out of the Legal Aid Centre’s funds, where the case is one of special protection and need for access to justice, unless the applicant expressly states so in the application. It is clear, however, that there is nothing in the wording of the statutory provisions on the provision of legal aid to suggest that that provision should always be applied, even if the applicant for legal aid does not avail himself of it.

The judgment was delivered by the Grand Panel composed of the President of the Panel JUDr. Marián Trenčan, and the Judges, JUDr. Elena Berthotyová, PhD., JUDr. Marián Fečík, JUDr. Anita Filová (Judge-rapporteur), Prof. JUDr. PhDr. Peter Potásch, PhD., JUDr. Petra Príbelská, PhD., and JUDr. Juraj Vališ, LL.M.

1st submission and 2nd decision:

Reviewability of notifications issued in the so-called ‘out-of-appellate’ procedure (submitted in October 2021 and decided in May 2022).

By ruling of 12 May 2022, Case No. 1 SVs 1/2021, the Grand Panel of the Supreme Administrative Court dismissed the applicant’s cassation complaint against the Ministry of Defence of the Slovak Republic concerning the review of the lawfulness of the notification concerning the salary of a professional soldier issued in the so-called ‘out-of-appeal’ procedure.

The case concerns a dispute between a professional soldier and his military unit as a service authority concerning the amount and composition of his salary. The applicant was dissatisfied with the resolution of the matter by his superior service and therefore requested a review of the decision out of the appeal procedure by the Ministry of Defence.

The latter dealt with the complaint in question by means of a communication stating that the commander’s communication was not a decision in an administrative procedure and that its remedy could not be sought by means of the Administrative Procedure Code.

The Regional Court dismissed the action because it did not consider that the defendant’s notification was a decision taken in an administrative procedure and that it was not covered by the Administrative Procedure Code. The Regional Court considered that the notification of the amount and composition of the salary was itself a measure against which the applicant could bring an administrative action.

The Supreme Administrative Court (Panel 2S, composed of the President of the Panel, Elena Berthotyová, PhD., and the Judges JUDr. Marián Trenčan, Prof. JUDr. Juraj Vačok, PhD. (Judge-rapporteur)), after examination, came to a different legal opinion from that previously reached by the Supreme Court and therefore decided, by order of 28 October 2021, Case No. 1 Sžk 11/2020, to refer the case to the Grand Panel of the Supreme Administrative Court for consideration.

The Supreme Court has held in different decisions that a communication such as the one at issue in this case is a measure, while the referring Panel has stated that, in order to determine the jurisdiction of the administrative courts, it is necessary to assess whether the document in question is a decision or a measure under the Administrative Procedure Code. The Referring Panel pointed out that the Administrative Procedure Code is not a legal regulation governing all processes in public administration. It applies only to decision-making processes which result in individual administrative acts in the form of decisions.

In view of the above, the Referring Panel is satisfied that in the present proceedings the defendant should not have proceeded under the provisions on the review of a decision outside the appeal procedure under the Administrative Procedure Code, and also agrees with the Regional Court’s view as to the need to dismiss the action brought on the ground of lack of jurisdiction to review the defendant’s notification. For the reasons set out above, the Court also considers that, contrary to the view expressed in the dissenting decision, the complaint in cassation is unfounded and considers that it should be dismissed.

The Grand Panel agreed with the view of the Referring Panel that in the present case, the jurisdiction of the administrative courts to review the notification was not given because it was not a decision or action of a public authority.

The Grand Panel recalled that, according to the Administrative Procedure Code, a decision is an act which creates, modifies, abrogates or declares individual rights and obligations, and a measure is an act by which rights, legitimate interests or obligations may be directly affected. However, neither of those conditions is met in the defendant’s communication. The communication is merely a reply to a letter which, moreover, was preceded by a reply already made in the case in question on the basis of a similar letter.

It is true that the defendant’s communication expresses a certain legal opinion. However, it merely refers in substance to documents already issued. If the case-law were to adopt such an expansive interpretation as that set out in the dissenting decision, every single opinion of a public authority would be reviewable on the ground that every such letter may potentially affect the rights and obligations of specifically identified or generally identified persons administered by the public authority.

It should also be pointed out that even if the administrative courts were to quash the respondent’s communication, the above would have no bearing on the amount of the Executive Airman’s allowance. Therefore, even hypothetically, the defendant’s letter could not have interfered with the applicant’s rights, legitimate interests and obligations.

The defendant in the present proceedings did not have jurisdiction to proceed under the provisions for review of a decision outside the appeal procedure under the Administrative Procedure Code. At the same time, the Grand Panel is aware that in a number of legal relationships it may be a problem in practice for the parties to those legal relationships to assess what remedies to choose, but the basis of legal relationships is determined by the legislative power, and the judicial authorities, including the administrative judicial authorities, are obliged, in accordance with Article 2(2) of the Constitution, to act only within the limits permitted by the legal norms.

In the light of all the foregoing, the Grand Panel finds that the cassation complaint is unfounded.

The resolution was decided by the Grand Panel, composed of the President of the Panel JUDr. Jana Hatalová, PhD., and the Judges JUDr. Elena Berthotyová, PhD., JUDr. Marian Fečík, Prof. JUDr. PhDr. Peter Potásch, PhD., JUDr. Petra Príbelská, PhD., JUDr. Marián Trenčan and Prof. JUDr. Juraj Vačok, PhD. (Judge-rapporteur).