From a sickbed to the courtroom?

A party’s non-appearance at a hearing for a serious, legitimate reason, such as hospitalization, no longer guarantees an automatic adjournment.

When a dispute between two parties ends up in court, the parties are often willing to do everything in their power to win. As long as everyone adheres to the rules of acceptable conduct, that is. Occasionally, parties, where the situation does not look rosy, resort to more underhanded means to delay the court’s decision as much as possible.

One of the most common obstructions was an illegitimate claim of illness, either of the party or by its counsel, accompanied by a request for adjournment, as the party refused to waive their right of participation. Such an approach allowed for seemingly endless delays, as the “ill” party or lawyer remained unavailable indefinitely.

Mercifully, following the adoption of the new Slovak Code of Civil Procedure, the legal requirements for adjournments have changed, and courts are now reflecting this in their practice.

Now, an adjournment is possible only under two conditions: a party cannot appear at a hearing for a serious, legitimate reason and the party cannot legitimately be required to be represented at the hearing. Thus, a party represented by counsel need not be present for the matter to go forward. Sometimes, appearance by the lawyer is sufficient.

Recently, the Constitutional Court also dealt with this change of procedure (I. ÚS 245/2018). The court was asked to opine on the validity of actions of the general courts, which found, as per the current version of the Code of Civil Procedure, that a party’s absence, even when caused by a serious, legitimate reason was not sufficient to postpone the hearing.

In finding such decisions in line with the Slovak Constitution, the Constitutional Court held that a lawyer, as a person appointed to represent the party in the proceedings, is tasked with asserting the procedural rights of his client in a qualified manner. So the fact that a party did not appear in person at the trial does not stand in the way of a discussion and decision.

We regard this change as positive. The tactic of “faking an illness” has been, sadly, used in more than a few cases in Slovakia, resulting in extensive delays to justice. Steps to limit the practice are all for the good. That said, this should not be an absolute rule, a party’s participation is an essential right, and the rulings recognize this fact. Judges will be given some leeway in these matters, and a decision that a party’s testimony is essential to the resolution of the dispute will still be sufficient for a court to adjourn.

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