THIRD SECTION

DECISION

Application no. 36446/17 Ján SARKOCY against Slovakia

The European Court of Human Rights (Third Section), sitting on 22 September 2020 as a Committee composed of:

Dmitry Dedov , President, Alena Poláčková , Gilberto Felici , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 4 May 2017,

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 Sarkocy , is a Slovak national, who was born in 1953 and lives in Limbach . He was represented before the Court by Ms E. Korčeková , a lawyer practising in Pezinok .

2 . The Slovak Government (“the Government”) were represented by their Co-Agent, Ms M. Bálintová .

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

4 . By a first-instance court ’ s judgment of 10 July 2012, the applicant was ordered to pay a sum to his former legal representative.

5 . Both parties appealed against the judgment, the applicant on 12 September 2012 in respect of the merits, the plaintiff on 24 August 2012 in respect of the decision on the costs. In the meantime, the applicant authorised a lawyer to represent him in the proceedings and, when consulting the file, made a copy of the plaintiff ’ s appeal and commented on it.

6 . On 10 October 2012 the plaintiff submitted his one-page comments on the appeal filed by the applicant, which he considered purposeless since it only concerned the question of his legal standing.

7 . On 30 January 2014 the Bratislava Regional Court upheld the impugned judgment.

8 . On 31 March 2014 the applicant filed an appeal on points of law, claiming that he had been deprived of the possibility to act before the lower courts. He mainly challenged the allegedly confusing and arbitrary reasoning of the Regional Court ’ s judgment and complained that he had not been aware of a first-instance court ’ s decision by which the plaintiff ’ s motion for a change in the person of the plaintiff had been rejected in 2009.

9 . On 28 May 2014 the plaintiff submitted his one-page comments on the applicant ’ s appeal on points of law, stating that all the applicant ’ s arguments had been duly examined and refuted by the lower courts, whose decisions were duly reasoned. According to the applicant, those comments had been served on his former representative who, however, had not represented him any longer at that time.

10 . On 29 June 2016 the Supreme Court rejected the applicant ’ s appeal on points of law as inadmissible, considering that the shortcomings complained of by the applicant did not qualify as procedural defects covered by the legal grounds for admissibility.

11 . The applicant lodged a constitutional complaint in which he complained under Article 6 of the Convention, inter alia , that the plaintiff ’ s submissions of 10 October 2012 and 28 May 2014 had not been served on him and that he had not been given an opportunity to comment on them.

12 . By decision no. III ÚS 34/2017 of 24 January 2017, the Constitutional Court dismissed the applicant ’ s constitutional complaint as manifestly ill-founded. It held that, in respect of complaints related to the adversarial principle, it was necessary t o consider the proceedings as a whole and to have regard to the content of the impugned submissions and their importance for the proceedings. In the Constitutional Court ’ s view, it did not follow from the relevant Court ’ s case-law ( Trančíková v. Slovakia , no. 17127/12, § 46, 13 January 2015) that non-communication of observations entailed in all circumstances a breach of the principle of adversarial trial. In the instant case, the plaintiff ’ s comments on the applicant ’ s appeal and appeal on points of law did not contain any new factual or legal assertions which would not have been dealt with before. Moreover the applicant ’ s appeal itself amounted only to a repetition of his arguments submitted to the first-instance court, he did not challenge the non-communication of the plaintiff ’ s submissions of 10 October 2012 in his appeal on points of law and the plaintiff ’ s comments on the latter did not concern the issue of admissibility underlying the Supreme Court ’ s decision. The Constitutional Court further underlined that not even in his constitutional complaint had the applicant formulated any convincing arguments enabling to conclude that, had he been given the possibility to comment on the plaintiff ’ s submissions, the decision on the merits would have been different.

13 . Relevant domestic practice in respect of communication for comments of the observations of one party to the proceedings in response to any legal remedy to which the opposing party has recourse has been summarised in the Court ’ s judgment in the case of Trančíková v. Slovakia (cited above, § 23).

COMPLAINT

14 . The applicant complained under Article 6 § 1 of the Convention that the observations filed by the plaintiff in response to his appeal and appeal on points of law had not been communicated to him and, as a result, he had been deprived of the possibility of reacting to them.

THE LAW

15 . The applicant alleged that the civil proceedings had been unfair in that, contrary to his right to an adversarial trial, the courts had failed to transmit to him and thereby to enable him to react to the plaintiff ’ s observations in reply to his appeal and the appeal on points of law. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

16 . The Government, first, pleaded failure to exhaust domestic remedies. They pointed out that, to the extent that the applicant had complained that the plaintiff ’ s observations on his appeal had not been communicated to him, he had failed to raise this issue in his appeal on points of law.

17 . The Government further raised an objection under Article 35 § 3 (b) of the Convention, being of the view that the non-communication to the applicant of the plaintiff ’ s observations of 10 October 2012 and 28 May 2014 did not give rise to any significant disadvantage on the applicant ’ s side. They maintained that neither in his constitutional complaint nor in his application to the Court had the applicant shown which arguments used by the plaintiff would have required his reply, given that the plaintiff had only shortly reiterated his position before the first-instance court. In this respect, the Government referred to the Court ’ s decisions in Pu š kárová v. Slovakia (( dec. ) [Committee], no. 19356/14, §§ 20-22, 7 May 2019), and Neru š il v. Slovakia (( dec. ) [Committee], no. 37016/15, § 24, 7 May 2019).

18 . In any event, the Government contended that the right to an adversarial trial was not absolute. Indeed, the Court has in the past found that the non-communication of written observations or documents in the proceedings and the impossibility for the applicant to comment on them did not constitute a violation of the right to a fair hearing when granting the applicant such rights and opportunities would have had no effect on the outcome of the proceedings (see, for example, Verdú Verdú v. Spain , no. 43432/02, §§ 26-28, 15 February 2007). The Government thus fully endorsed the Constitutional Court ’ s assessment that there could not have been any genuine issue with the fairness of the applicant ’ s proceedings because the observations in question contained no elements other than those amply debated on in the precedent course of the proceedings.

19 . The applicant retorted by claiming that in his appeal on points of law he had complained about having been deprived of the possibility to act before the court, that the plaintiff ’ s comments of 28 May 2014 had been wrongly served on his former representative (see paragraph 9 above) and that the Supreme Court had an ex officio obligation to consider the admissibility of the appeal on points of law in light of the entire conduct of the lower courts.

20 . The applicant further insisted on his complaint as well as on those which have previously been declared inadmissible. Referring to the cases Hudáková and Others v. Slovakia (no. 23083/05, 27 April 2010) and Trančíková (cited above), he contended that the proceedings had not been fair.

21 . The Court considers that it is not necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies since the complaint is, in any event, inadmissible for the reasons stated below.

22 . The Court notes that complaints similar to that in the present case have been examined and declared inadmissible in the past under Article 35 § 3 (b) of the Convention (see, for example, Holub v. the Czech Republic ( dec. ), no. 24880/05, 14 December 2010; Hanzl and Špadrna v. the Czech Republic ( dec. ), no. 30073/06; Pu š kárová , cited above; and Neru š il , cited above).

23 . In the present case it has not been disputed between the parties that the plaintiff ’ s observations in reply to the applicant ’ s appeal and appeal on points of law had not been transmitted to the applicant, that these observations were limited to the plaintiff ’ s constant argumentation and that they included no new evidence.

25 . It is also to be noted that the applicant ’ s appeal on points of law was rejected by the Supreme Court on the grounds that it failed to meet the requirements for admissibility, without the case having been examined on the merits (see paragraph 10 above). Accordingly, as stated also by the Constitutional Court (see paragraph 12 above), the plaintiff ’ s observations concerning the merits could have no impact on the outcome of the litigation (see, conversely, Hudáková and Others , cited above, § 29).

26 . The Court further notes that the matter had been examined on the merits by courts at two levels of jurisdiction, that the applicant had been represented by a lawyer before the appellate court and that there is no indication that he had been in any way restricted in the possibilities of asserting his rights in full compliance with Article 6 § 1 of the Convention.

27 . In these circumstances, even assuming that the non-communication of the plaintiff ’ s observations to the applicant raises an issue of fairness of the proceedings under that provision, it may not be seen as having caused any significant disadvantage to the applicant in terms of Article 35 § 3 (b) of the Convention (see Pu š kárová , § 22; and Neru š il , § 25, both cited above,).

28 . It must next be ascertained whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits.

29 . Given that the Court has already had several opportunities to rule on the issue raised in this case (see Trančíková , cited above, §§ 37-49; Hudáková and Others v. Slovakia , cited above, §§ 25-32; Čičmanec v. Slovakia , no. 65302/11, §§ 59-65, 28 June 2016) and that the implementation of the Court ’ s judgments in these cases was concluded (see resolutions of the Committee of Ministers of the Council of Europe no. CM/ ResDH ( 2016)18 of 24 February 2016, no. CM/ ResDH ( 2012)57 of 8 March 2012, and no. CM/ ResDH ( 2017)371 of 25 October 2017), it cannot be argued that the application raises serious questions of application or interpretation of the Convention, or important questions of national law.

30 . Respect for human rights as defined in the Convention and the Protocols thereto therefore cannot be said to require an examination of the application on the merits.

31 . Finally, the Court must ensure that the case has been “duly considered by a domestic tribunal”, the term “case” referring to the applicant ’ s action, claim or request that was submitted to the domestic courts, rather than his or her “application” or “complaint” as later submitted to the Court (see, for example, Liga Portuguesa de Futebol Profissional v. Portugal ( dec. ), no. 49639/09, 3 April 2012; Pu š kárová , cited above, § 26).

32 . That being so, as the Court has already noted above, the action against the applicant was examined by the ordinary courts at two levels of jurisdiction (see paragraph 26 ). In addition, his constitutional complaint, including the issue of the non-transmission of the plaintiff ’ s observations to him, was examined by the Constitutional Court.

33 . In these circumstances, the Court finds that the applicant ’ s case has been duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b) of the Convention.

34 . All three conditions of the relevant inadmissibility criterion having been satisfied, the Court finds that the application must be declared inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 October 2020 .

Olga Chernishova Dmitry Dedov Deputy Registrar President