Up-95/16

Reference no.:
Up-95/16
Objavljeno:
Official Gazette RS, No. 26/2019 and OdlUS XXIV, 24 | 14.03.2019
ECLI:
ECLI:SI:USRS:2017:Up.95.16
Abstract:

[The text published below is a summary prepared for the annual report.]

Finality, Legal Certainty, and the Right to Judicial Protection

 

By Decision No. Up-95/16, dated 14 March 2019 (Official Gazette RS, No. 26/19), the Constitutional Court decided on the constitutional complaint of a registered pharmacy against a judgment of the Supreme Court that confirmed a judgment of the District Court dismissing a claim of the complainant requesting that it be established that her concession contract for performing a pharmacy practice concluded with the City of Ljubljana is still valid. Thereby, the Supreme Court confirmed that the City of Ljubljana lawfully cancelled the concession contract of the complainant for performing a pharmacy practice. The complainant reproached the Supreme Court for having violated the human right to judicial protection determined by the first paragraph of Article 23 of the Constitution as it allegedly interfered with a prior final judgment of the Administrative Court that established that the concession had been unlawfully withdrawn.

 

The Constitutional Court proceeded from the position that the human right to judicial protection ensures a decision on the merits in judicial proceedings regarding rights and obligations, as well as a possibility to effectively invoke a right that was recognised with finality in a dispute. A constituent part of the right to effective judicial protection is thus the requirement that the finality of legal decisions be respected, which also follows from Article 158 of the Constitution. A court may interfere with the final content of granted judicial protection only in proceedings involving an extraordinary legal remedied envisaged by the law. An element of finality is the rule that prohibits re-adjudication on the same matter, as it is only such rule that enables parties to rely on a court decision. The requirement of respect for finality also entails that the parties and courts are bound by the content of a final judicial decision. A right granted by an individual act or an obligation thus imposed may no longer be interfered with, as such would weaken trust in the legal order. Final judicial protection namely brings about in legal relationships legal certainty, which entails the legitimate expectation of the parties that no one will be able to again address issues already resolved with finality, except in proceedings involving extraordinary legal remedies.

 

In accordance with the content of the principle of finality under Article 158 of the Constitution, the content of the principle of legal certainty, which is one of the principles of a state governed by the rule of law determined by Article 2 of the Constitution, is thus reflected in the human right referred to in the first paragraph of Article 23 of the Constitution. This set of guarantees of the human right to judicial protection goes even further than the mere obligation to be bound by the content of a final judicial decision and than the prohibition of re-adjudication on the same matter. The principle of legal certainty (or of trust in the law) requires that individual decisions that are lawful and adopted without prior reservations and by their nature are not of a transitional nature be stable. The law can assert its function of regulating social life if it is permanent and lasting to the greatest possible extent. Both the law as well as the actions of all state bodies must be foreseeable, as this is required by legal certainty.

 

The Constitutional Court considered it to be decisive that the judgment of the Administrative Court that annulled as unlawful a decision of the City of Ljubljana withdrawing from the complainant a concession for performing a pharmacy practice was final already before the challenged judgment of the Supreme Court was issued. It established that the courts indeed formally decided on different issues. Both of them, however, each in its own proceedings, addressed the same legal question, i.e. the question of the legal reasons for the termination of the concession for a pharmacy practice. The Supreme Court adopted the position that for the assessment of the legality of the cancellation of a concession contract a legal question first has to be resolved as to the possibility of the grantor of the concession withdrawing the concession for performing a pharmacy practice without fault because there is no longer a concession contract due to the fact that the grantor of the concession cancelled it. It also adopted the position that a concession for performing a pharmacy practice can be terminated also at the discretion of the grantor of the concession. Prior to that, the Administrative Court adopted a different position with regard to the same legal question by a final judgement.

 

By changing the essential and previously adopted position of the Administrative Court relating to the reasons for the termination of a concession for performing pharmacy activities, the Supreme Court introduced uncertainty into the relation between the complainant and the City of Ljubljana. The complainant’s legal certainty and legitimate expectations linked thereto concretised in the final judgment of the Administrative Court were disrupted by the issuance of the challenged judgement. Although the complainant had been issued the final judgment of the Administrative Court, according to which her concession could not be withdrawn against her will if she did not violate the obligations of a concessionaire due to fault, also the challenged judgment of the Supreme Court had an effect on the complainant, which, however, established that the concession contract was no longer valid due to its cancellation “without fault”. Thereby the existence of the concession contract, the performance of which is crucial to achieving the purpose of the concession relationship, was undermined; a concessionaire pharmacists whose concession contract is cancelled without him or her being at fault and against his or her will can also for the very same reason lose the concession.

 

The Supreme Court decided at a time when the judgement of the Administrative Court was already final. This judgement resolved the issue of the lawful reasons for the withdrawal of the concession and is inseparably incorporated into a complete living whole, which (due to the cancellation of the concession contract followed by the withdrawal of the concession by the City of Ljubljana) was subject to a review by two competent courts. Nevertheless, the Supreme Court circumvented it when deciding and thereby again introduced uncertainty into the relationship between the complainant and the City of Ljubljana and disrupted the legal certainty that is guaranteed to parties by an already final judicial decision. Thereby, the Supreme Court violated the complainant’s right to judicial protection determined by the first paragraph of Article 23 of the Constitution. The Constitutional Court thus abrogated its judgment and remanded the case for new adjudication.

Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Silva Bitenc Rošer - Lekarna Bitenc
Date of application:
27.01.2016
Date of decision:
14.03.2019
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03989