THIRD SECTION

DECISION

Application no . 57787/12 Ján MIHAL against Slovakia

The European Court of Human Rights (Third Section), sitting on 27 September 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom, Helen Keller, Dmitry Dedov, Branko Lubarda, Pere Pastor Vilanova, Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar ,

Alena Pol áčková , the judge elected in respect of Slovakia, withdrew from sitting in the Chamber (Rule 28). Helena Jäderblom, the judge elected in respect of Sweden, was appointed to sit in her place (Article 26 § 4 of the Convention and Rule 29),

Having regard to the above application lodged on 3 September 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ján Mihal, is a Slovak national, who was born in 1956 and lives in Pezinok. He was represented before the Court by Černejová & Hrbek, s.r.o., a law firm with its registered office in Bratislava.

2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Disciplinary charges

4. The applicant is a judge. At the relevant time he was on the criminal law bench of the Supreme Court.

5. On 2 July and 21 August 2009 the President of the Supreme Court filed two separate disciplinary charges against the applicant.

6. The applicant was accused of having negligently failed to take a decision within the prescribed time-limit which had ultimately led to the release from detention on remand of a defendant who was in the process of appealing against a previous first-instance life sentence given in a criminal case. In addition, the applicant was accused of having caused unjustified delays in two other sets of proceedings.

7. These offences were classified as “serious disciplinary offences” and the penalty of removal from judicial office was proposed.

8. Meanwhile, on 14 July 2009, the Judicial Council, which is the supreme governing body of the judiciary in Slovakia, suspended the applicant from office pending the outcome of the disciplinary proceedings.

2. First-instance proceedings

9. The applicant ’ s charges fell to be determined at first instance by the Supreme Court, sitting as a disciplinary tribunal (“the first-instance tribunal”).

10. The first-instance tribunal set hearings for 6 October, 3 November, and 8 December 2010, but none of them took place because it had proven impossible to have the summons served on the applicant.

11. The summons had to be served on the applicant in person. As the summonses had repeatedly not reached him by post at home, they were deposited at the local post office and a notice to that effect was left in the applicant ’ s post box. However, the summonses were never collected.

12. In response, the first-instance tribunal asked that the summonses be served on the applicant by the police, by the District Court within the jurisdiction of which the applicant resided, and by the applicant ’ s mother.

According to the police and the District Court, the applicant was not staying at his home address and their attempts to reach him had been futile.

13. In the applicant ’ s submission, his suspension from office led to disruption of his family life, as a result of which he was not staying at his home address but at his mother ’ s.

14. On 8 December 2010 the first-instance tribunal again requested that the summons for the hearing then scheduled for 26 January 2011 be served on the applicant by the police and that the police bring him to that hearing. This summons was eventually served on the applicant.

15. Meanwhile, the applicant in person (1 December 2010) and through the intermediary of his defence counsel (21 December 2010) filed written observations in reply.

16. The first-instance tribunal eventually heard the case on 26 January, 23 February and 6 April 2011. The applicant and his counsel both attended all of these hearings. The tribunal allowed them to make oral submissions and heard evidence from a representative of the complainant and two Supreme Court judges as witnesses. In addition, it examined extensive documentary evidence.

17. The applicant offered the following in his defence. The missed time limit had been subject to newly adopted rules. The interpretation of those rules had been unclear and the applicant had been consulting other Supreme Court judges in that respect. He had thus been engaged in a legitimate process of analysing the applicable rules, had ultimately concluded that the given time-limit applied but, as by that time it had already expired, the defendant had had to be released. In the applicant ’ s view, he was not guilty of negligence and, in addition, his workload at that time had been unmanageable.

18. Following the hearing of 6 April 2011, on the same day, the first instance tribunal found the applicant guilty as charged and ordered his transfer to a lower-instance court. It did so having dismissed his arguments and having considered that removal from office, as demanded by the complainant, was too harsh a sanction in the circumstances.

3. Appeal

19. On 12 June 2011 the applicant appealed against the above decision and on 14 June 2011 his counsel added reasons to his appeal. The complainant subsequently filed observations in reply and the applicant submitted further written comments.

20. In sum, he argued that the first-instance tribunal had had no power to try him because its three-year mandate had expired before its decision; that the tribunal had not been impartial because it had favoured the complainant; that the complainant had systematically breached his presumption of innocence with the aim of removing him from his position as a judge; that the tribunal had erred on facts and law, and had been selective in its choice of which evidence to accept (rejecting the applicant ’ s proposals for evidence to be given by certain witnesses); and that it had failed to support its decision with adequate reasoning.

21. The appeal fell to be examined by another Chamber of the Supreme Court, sitting as a disciplinary tribunal of appeal (“the appeal tribunal”).

22. On 3 September 2011 the appeal tribunal scheduled a hearing for 12 October 2011.

23. On 7 September 2011 the applicant informed the appeal tribunal that he was unable to appear because he was on sick leave. He submitted a general practitioner ’ s certificate of 6 September 2011 to that effect, stated that he wished to attend the hearing in person, and requested that the hearing be postponed. In the certificate, the applicant ’ s doctor had indicated his diagnosis as “M54” and authorised him to go for a walk daily between 10 a.m. and noon and between 3 and 5 p.m.

24. On 12 September 2011 a new date was set for the hearing – 17 October 2011. As for the applicant, the appeal tribunal had the summons sent to him and his lawyer.

At the same time, the appeal tribunal asked the applicant ’ s doctor in writing to indicate the expected period of his incapacity for work and to specify whether he would be able to attend the scheduled hearing. The doctor was further asked to authorise the applicant to leave his place of residence on 17 October 2011 for the purposes of attending the hearing, health permitting.

25. The summons was served on the applicant ’ s lawyer on 16 September 2011 but it twice proved impossible to have it served on the applicant in circumstances similar to those described above.

26. On 6 October 2011 the presiding judge contacted the doctor by telephone with a view to establishing whether the applicant would be able to attend the hearing.

27. In a written reply dated 3 October 2011 the doctor confirmed that the applicant had been on sick leave since 6 September 2011. Its expected duration could not be specified as the results of the applicant ’ s examination by specialists had not yet arrived. Lastly, the letter indicated that the applicant was being treated with medication with analgesic-spasmolytic side effects which could affect his ability to concentrate.

28. On 14 October 2011 the applicant ’ s counsel informed the appeal tribunal, without offering anything in support of such claims, that the applicant was still on sick leave and that his condition would not allow him to appear at the forthcoming hearing. He added that the applicant considered his presence necessary, submitted that “they” apologised for “their” absence, requested that the hearing be postponed, and pledged that “they” would inform the tribunal once the applicant ’ s condition had improved.

29. The appeal tribunal heard the case as scheduled on 17 October 2011 without the applicant or his counsel present. The complainant ’ s representative was present but submitted that, in the applicant ’ s absence, he had no comment to make in respect of the applicant ’ s appeal other than to refer to the complainant ’ s previous written submissions.

30. Following the hearing of 17 October 2011, on the same day the appeal tribunal quashed the first-instance decision and found the applicant guilty on charges relating to the missing of the detention-related deadline and the unjustified delays in one set of proceedings; it acquitted him of the remaining charge.

The appeal tribunal imposed a sanction on him, which was identical to that imposed previously by the first-instance decision, that is to say transfer to a lower court.

31. The appeal tribunal observed that the judges of the first-instance tribunal had been appointed for three years and that this term had expired before its decision in the applicant ’ s case. However, under the applicable statute, the tribunal had had to bring to a conclusion any proceedings that had commenced before it irrespective of the three-year period.

Moreover, it considered that the first-instance tribunal had adequately established the facts and that no new evidence was called for. Nevertheless, it was true that the first-instance decision had lacked proper reasoning. Therefore, the appeal tribunal provided comprehensive reasoning of its own for the conviction in its decision. Among other things, it noted that there had been no official record of the applicant having conferred with his colleagues over any question of law that he might have considered controversial. In the circumstances, and in particular in a matter as sensitive as the detention of a notorious criminal defendant, the applicant ’ s inactivity could not be accepted as being an expression of legitimate judicial activity but rather manifested signs of arbitrariness.

32. As regards hearing the applicant ’ s appeal in his absence, the appeal tribunal considered that his and his lawyer ’ s refusal to attend had been “another part of the former ’ s efforts to obstruct and delay the proceedings”.

In that connection, the appeal tribunal referred in detail to the difficulties in having the summons served on the applicant both at the first instance stage and on appeal. It observed that the applicant had been on sick leave, which presupposed that he should normally have been at home. It also noted that the applicant had been authorised to leave home for four hours a day, which should have given him ample opportunities to collect his post from the post office.

In addition, the appeal court noted that the applicant ’ s doctor had avoided a direct response to the question concerning whether the applicant ’ s condition had been such as to prevent him from participating at the hearing.

At the same time, it noted that there was no doubt that the summons had been properly served on the applicant ’ s counsel who himself had not provided any reason why he had not been able to appear at the hearing.

In such circumstances, the appeal tribunal considered that the applicant ’ s sick leave had not been an adequate reason for adjourning the hearing and that it had been justified to have held it in his absence.

4. Constitutional complaint

33. On 2 December 2011 the applicant lodged a complaint with the Constitutional Court. He alleged a breach of Article 6 § 1 of the Convention in that the appeal tribunal had determined the case in his absence, notwithstanding the fact that he and his lawyer had duly apologised.

34. On 14 December 2011 the Constitutional Court declared the complaint admissible; on 18 April 2012 it found that there had been no violation of the applicant ’ s rights under Article 6 § 1 of the Convention and its constitutional equivalents.

35. In reaching that conclusion the Constitutional Court considered relevant, in particular, that: (i) the applicant had attempted to delay the proceedings at first instance; (ii) he and his lawyer had been present at the hearings at first instance and had had the possibility of presenting their arguments; (iii) the applicant ’ s lawyer had indicated no relevant reason preventing him from attending the hearing on appeal; (iv) the applicant had had ample opportunity to set out his arguments in his appeal and in his comments on the complainant ’ s observations in reply to his appeal; (v) the applicant had been partly successful in his appeal; (vi) the appeal tribunal had accepted the applicant ’ s first request for the hearing of his appeal to be adjourned; and (vii) the applicant ’ s state of health had not prevented him from attending.

The Constitutional Court further noted that the representative of the other party had made only a general statement at the hearing and that the court of appeal had not taken further evidence. The principle of equality of arms had been respected and the appeal court ’ s conclusion had not been arbitrary.

5. Follow up

36. The disciplinary decisions concerning the applicant have been implemented and he is now in active service at a court of appeal.

COMPLAINT

37. The applicant complained under Article 6 § 1 of the Convention that his right to a fair and public hearing by a tribunal had been breached in that the appeal tribunal had examined his appeal in his absence.

THE LAW

38. The applicant alleged a violation of his right to a fair and public hearing as provided for under Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] tribunal ...”

A. The parties ’ arguments

39. In reply, the Government referred to the Court ’ s judgments in the cases of Kamasinski v. Austria (19 December 1989, § 106, Series A no. 168), Ekbatani v. Sweden (26 May 1988, § 27, Series A no. 134), Monnell and Morris v. the United Kingdom (2 March 1987, § 56, Series A no. 115) and Hermi v. Italy ([GC], no. 18114/02, § 62, ECHR 2006 XII).

Relying on the above cases, they pointed out that the personal attendance of the defendant did not take on the same crucial significance for an appeal hearing as it did for a trial hearing. Account had to be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein. Moreover, even where the court of appeal had jurisdiction to review the case both as to the facts and as to the law, Article 6 did not always require a right to a public hearing, still less a right to appear in person. In order to decide that question, regard had to be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant ’ s interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant.

Relying on these principles and the conclusions of the domestic courts, the Government considered the complaint manifestly ill-founded.

40. The applicant commented that in his case judicial practice established at the domestic level in criminal matters should have been applied mutatis mutandis and that, according to that practice, he should have been given an opportunity to present his case in the appeal proceedings in person. He denied any responsibility for the difficulties in having the summons served on him, arguing that the police had established and had informed the first-instance tribunal that he had been staying at his mother ’ s. However, that tribunal had ignored this information and had continued to send him post to his home address.

41. The applicant considered that his presence at the hearing of his appeal had been imperative for a number of reasons. First, the first-instance tribunal had ignored evidence that he had adduced with a view to establishing that he had been actively dealing with the detention case in question. Second, he had intended to raise an objection that it had been impermissible for the complainant to be represented in the proceedings by a substitute. Third, the eventual presence of his own lawyer at the hearing would not have been sufficient since the lawyer could never have had full knowledge of the applicant ’ s thought processes in the adjudication of the cases assigned to him. Fourth, the applicant pointed out that the appeal tribunal had accepted that the first-instance tribunal had failed to support its conclusions with adequate reasoning and had substituted that reasoning with its own. The applicant considered that he should accordingly have had an opportunity to respond to that new reasoning.

42. The applicant further submitted that the questions raised in the impugned proceedings had been of fundamental importance for him and that it had been the duty of the State to provide him with an opportunity to defend himself in person, in particular since he had insisted that his appeal be heard in his presence and that he had timely and properly informed the appeal tribunal that he had been unable to appear on the given day.

43. The applicant referred to the Convention case-law ( Colozza v. Italy , 12 February 1985, § 27, Series A no. 89; Belziuk v. Poland , 25 March 1998, § 37, Reports of Judgments and Decisions 1998 II; Hermi , cited above, § 58; Stoichkov v. Bulgaria , no. 9808/02, § 56, 24 March 2005; Kremzow v. Austria , 21 September 1993, Series A no. 268 B; and Cooke v. Austria , no. 25878/94, 8 February 2000) and added that denying him the opportunity to be present at the hearing of his appeal had amounted to an undue restriction on his right of access to the appeal tribunal.

44. In a further reply, the Government added that it had been natural for the summonses to be sent to the applicant ’ s home address as that had been the address he had officially registered with the authorities. Had he been staying elsewhere, it would have been his duty to keep the disciplinary tribunals informed, in particular because he had been aware of his upcoming proceedings and – as a judge – he must have known the applicable rules.

B. The Court ’ s assessment

45. The Court notes at the outset that the present case may raise questions of the applicability of the guarantees of Article 6 § 1 of the Convention (see, for example, Harabin v. Slovakia , no. 58688/11, § 122, 20 November 2012, and Müller-Hartburg v. Austria , no. 47195/06, §§ 39 ‑ 70, 19 February 2013) and, in particular, those under its criminal limb (see, for example, Bayer v. Germany , no. 8453/04, §§ 37 et seq. , 16 July 2009, and Oleksandr Volkov v. Ukraine , no. 21722/11, §§ 93-4, ECHR 2013).

46. However, on the specific facts of the present case, the Court considers that it is not necessary to rule on these questions conclusively because, even assuming that the guarantees of Article 6 § 1 and in particular those under its criminal limb are applicable, the application is in any event inadmissible for the reasons laid out below.

47. In that connection, the Court notes that the applicant ’ s argument involves considerations in relation to the elements inherent in the notion of a fair hearing under Article 6 of the Convention: equality of arms, the adversarial nature of the proceedings, and access to court.

It considers that the applicable case-law principles are those recently summarised in its judgment in the case of Sobko v. Ukraine (no. 15102/10, §§ 69-72, 17 December 2015, with further references) as follows:

- Article 6 of the Convention, taken as a whole, guarantees that a person charged with a criminal offence should, as a general principle, be entitled to be present and to participate effectively in the hearing concerning the determination of the criminal charges against him. This right is implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6.

- The guarantees of Article 6, in particular the aforementioned right to be present and to participate effectively in a hearing, apply not only to first instance trials, but also to proceedings in courts of appeal.

- The manner in which Article 6 applies to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appeal court therein.

- For instance, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he or she did not commit the act allegedly constituting a criminal offence.

- The personal attendance of the defendant at the hearing is only one aspect of the wider concept of a fair trial in criminal proceedings. That concept includes the principle of equality of arms, which requires that each party be given a reasonable opportunity to present his or her case in conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent. Furthermore, the right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party.

48. Turning to the circumstances of the present case, the Court notes that it directly concerns the phase of the applicant ’ s disciplinary proceedings before the appeal tribunal and that, formally speaking, that tribunal had full jurisdiction to deal with questions of fact and law and liability and sanction.

49. In so far as the applicant ’ s appeal was heard in his absence, the Court notes that both the first-instance tribunal and the appeal tribunal took several proactive steps to ensure the applicant ’ s presence at the proceedings, including adjourning them several times. By similar token, both the appeal tribunal and the Constitutional Court concluded and explained in detail why responsibility for hearing his appeal in his absence was attributable to the applicant. The Court finds that these reasons are relevant (see, mutatis mutandis , Sobko , cited above, §§ 79-82) and convincing and that, in view of the subsidiary nature of its review, it has only a limited power to scrutinise them. In particular, the Court notes that there is no doubt that the applicant was properly summoned for the appeal hearing and that, as the domestic courts concluded, neither he nor his lawyer presented a valid reason for failing to appear.

50. In addition, the Court notes that, unlike in Koski v. Finland ((dec.), no. 53329/10, §§ 7, 9, 10 and 34, 12 December 2013), the applicant ’ s submissions to the appeal tribunal in the present case did not specify his health condition in a way reviewable by that tribunal or this Court. Moreover, unlike in the case of Ternovskis v. Latvia (no. 33637/02, § 74, 29 April 2014), the appeal tribunal in the present case repeatedly enquired into the grounds behind the applicant ’ s sick leave and can accordingly not be reproached for any lack of diligence in that respect.

51. Furthermore, the Court finds it of importance that the appeal tribunal addressed the matter of hearing the applicant ’ s appeal in his absence directly in its decision and that, subsequently, the applicant had an opportunity to assert his rights in that respect before the Constitutional Court.

52. In sum, the Court concludes that, even assuming that the nature of the disciplinary proceedings against the applicant was such as to require his personal presence at the hearing of his appeal, the applicant must be regarded as having lost his right to be present at that hearing through his own fault (see Sobko , cited above, §§ 75 and 82).

53. Moreover, seeing the hearing of the applicant ’ s appeal in his absence in the context of the proceedings as a whole, the Court finds it of relevance that the appeal tribunal exercised its jurisdiction only to the benefit of the applicant, in particular by acquitting him of one charge. As for the remaining charges, it came to the same conclusion as the first-instance tribunal, complementing its reasoning, but having taken no new evidence.

54. From the same perspective, the Court also notes that the applicant, assisted by a lawyer, had amply used the possibility of asserting his case in writing at first instance and before the appeal tribunal, and orally at first instance. The Court therefore considers that, in so far as substantiated, the applicant ’ s ability to argue his case suffered no relevant prejudice by the fact that his appeal was heard without him present.

55. Lastly, the Court notes that the appeal hearing took place in the presence of the complainant through a substitute, but that that substitute specifically refrained from making any submissions. There is therefore no indication that the applicant ’ s absence at that hearing provided the complainant with any undue advantage.

56. In view of these considerations, and taking into account the type and features of the impugned proceedings as a whole, the Court finds that the material in its possession does not disclose any appearance of a violation of the applicant ’ s rights under Article 6 of the Convention.

Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

             Stephen Phillips Luis López Guerra Registrar President