THIRD SECTION

DECISION

Application no. 37016/15 Ľubomír NERUŠIL against Slovakia

The European Court of Human Rights (Third Section), sitting on 7 May 2019 as a Committee composed of:

Dmitry Dedov , President, Alena Poláčková , Jolien Schukking , judges , and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 21 July 2015,

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 Ľubomír Nerušil , is a Slovak national, who was born in 1961 and lives in Bratislava. He was represented before the Court by Mr M. Benedik , a lawyer practising in Bratislava.

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

A. The circumstances of the case

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

3. The applicant and another individual were co-owners of a share in a private limited company. They had an arrangement according to which dispositions concerning the share were to be made by the applicant.

4. The applicant ’ s partner brought an action against the applicant, arguing that he had sold the share to a third person, that he had received the purchase price for it from that person, and that he had wrongfully retained that price in its entirety. Accordingly, the claimant sought an order for payment of a portion of the price corresponding to his ownership interest in the share. Throughout the ensuing proceeding, the applicant was represent by a lawyer.

5. Courts at two levels allowed the action and the judgment became final and binding.

6. Nevertheless, the applicant succeeded in having the Prosecutor General exercise his discretionary power to challenge the judgment on the applicants ’ behalf in the Supreme Court by way of an appeal on points of law ( mimoriadne dovolanie ).

7. The Prosecutor General argued that the arrangement between the applicant and his partner about dispositions in respect of the share did not include the alienation thereof and that the applicant had not had any specific power of attorney from the claimant for the sale of the share. Accordingly, the sale was null and void.

8. As the applicant would learn later from the written version of the Supreme Court ’ s judgment, the claimant filed observations in reply to the extraordinary appeal. A copy of these observatios has not been made available to the Court. In so far as can be established from their summary in the Supreme Court ’ s judgment, the claimant argued that the applicable statute provided no basis for the Prosecutor General ’ s arguments and that the claimant had been aware of and had agreed to the sale. If the sale had been void, the applicant would have had no title to the price and would have had to return it to the buyer, which was not what had happened. In addition, the claimant referred to Article 6 of the Convention and the principles of the rule of law and legal certainty and contended that an appeal on points of law should only be used in exceptional circumstances and not when there were merely differing views over an ordinary question of law.

9. On 13 August 2013 the Supreme Court dismissed the extraordinary appeal as unfounded. Among other things, it specifically noted that it agreed with the argument advanced by the claimant in his observations in reply to the extraordinary appeal to the effect that the extraordinary appeal was seeking to provide the applicant with legal protection in a situation in which, having sold the share and having received and retained the purchase price for it, he had suffered no genuine detriment to his rights.

10. The applicant challenged the Supreme Court ’ s judgment in the Constitutional Court by way of a complaint under Article 127 of the Constitution. Among other things, he alleged a violation of his procedural rights in that a copy of the claimant ’ s observations in reply to the extraordinary appeal had not been forwarded to him and that, accordingly, he had had no opportunity to respond. In his submission, the situation was aggravated by the fact that the Supreme Court had specifically relied on those observations in its judgment.

11. On 4 November 2014 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. As to its relevant part, it observed that, like the claimant, the applicant too had had an opportunity to file observations in reply to the extraordinary appeal and that the claimant ’ s observations had contained no new elements but only those already submitted before the lower courts. It concluded that the applicant had had the same opportunities to assert his case before the Supreme Court as the claimant, that he had not been placed at any material disadvantage compared to his opponent, and that the claimant had not been put in a more favourable position to the detriment of the applicant.

B. Relevant domestic law and practice

12. Relevant domestic practice in respect of communication for comment 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 (no. 17127/12, § 23, 13 January 2015).

13 . In a judgment of 30 October 2007 in an unrelated case, no. I. ÚS 335/06, the Constitutional Court found a violation of the complainant ’ s rights under Article 6 § 1 of the Convention and its constitutional counterpart on the grounds that, in the proceedings on the Prosecutor General ’ s extraordinary appeal on points of law lodged on the complainant ’ s behalf in a property dispute, the Supreme Court had failed to communicate to the complainant the other party ’ s observations in reply to the extraordinary appeal.

COMPLAINT

14. The applicant complained under Article 6 § 1 of the Convention that the observations of the claimant in response to the Prosecutor General ’ s extraordinary appeal on points of law had not been communicated to him and that, as a result, he had been deprived of the possibility of responding to them.

THE LAW

15. The applicant alleged that the proceedings in his action had been unfair in that, contrary to his right to an adversarial trial, the Supreme Court had failed to transmit to him and thereby to enable him to react to the claimant ’ s observations in reply to the extraordinary appeal on points of law lodged on his behalf by the Prosecutor General. 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 replied by arguing that the right to an adversarial trial was not absolute and that its scope could vary according to concrete circumstances of a given case. They referred to the reasons behind the Supreme Court ’ s judgment of 13 August 2013 and the Constitutional Court ’ s decision of 4 November 2014 as summarised above and argued that, on those grounds, the complaint was manifestly ill-founded.

17. The applicant retorted by disagreeing and emphasising that, in the impugned observations, the claimant had advanced arguments on the merits of the case, and that, therefore, it had been important for him to have an opportunity to respond. Moreover, he contended that, in its judgment in the case of Hudáková and Others v. Slovakia ( no. 23083/05 , 27 April 2010), the Court had given no weight to the Government ’ s argument that there had been no relevant new elements in the observations on which the applicants in that case had had no opportunity to comment.

18. The Court notes that the Government have not raised any objection under Article 35 § 3 (b) of the Convention. It is nevertheless not prevented from examining the admissibility of this application under that provision by its own motion (see, for example, Magomedov and Others v. Russia , nos. 33636/09 and 9 others, § 49, 28 March 2017; with further references). The provision in question reads as follows:

“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

[...] the applicant has not suffered a significant disadvantage, unless respect for human rights as de-fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

19. The Court notes that complaints similar to that in the present case have been examined and declared inadmissib le 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, 15 January 2013; Kiliç and Others v. Turkey ( dec. ), no. 33162/10, 3 December 2013 and, recently, Pfurtscheller v. Switzerland ( dec. ) [Committee], nos. 13568/17 and 13583/17, 18 September 2018).

20. In the present case it has not been disputed between the parties that the claimant ’ s observations in reply to the Prosecutor General ’ s appeal on points of law in fact were not transmitted to him.

21. When confronted with a complaint to that effect, the Constitutional Court established inter alia that the applicant had had an opportunity to file observations in reply to the extraordinary appeal just like the claimant, that the claimant ’ s observations had contained no elements but those already submitted before the lower courts, and that, accordingly, the applicant had not been placed at any material disadvantage compared to his opponent . The Court for its part notes that applicant himself does not contest these findings in the Convention proceedings.

22. The Court further observes that, prior to the contested phase of the proceedings concerning the Prosecutor General ’ s extraordinary appeal on points of law, the action against him had been examined on the merits by courts at two levels of jurisdiction, that throughout the proceedings he had been represented by a lawyer, and that there is no indication that he had in any way been restricted in the possibilities of asserting his rights in full compliance with Article 6 § 1 of the Convention (see, mutatis mutandis , Valchev and Others v. Bulgaria ( dec. ), no. 47450/11 and 2 others, § 78, 21 January 2014).

23. Moreover, the Court notes that the contested non-communication of the claimant ’ s observations to him materialised in a specific part of the proceedings, concerning an extraordinary remedy introduced against a final and binding judgment by the Prosecutor General. The use of such remedies has been found contrary to the requirements of Article 6 § 1 of the Convention on the specific facts of the cases of DRAFT - OVA a.s . v. Slovakia (no. 72493/10 , 9 June 2015); COMPCAR, s.r.o . v. Slovakia (no. 25132/13 , 9 June 2015) and PSMA, spol . s r.o . v. Slovakia (no. 42533/11 , 9 June 2015 ). In the present case, such a remedy was lodged by the Prosecutor General following the applicant ’ s request. It was accordingly seeking to advance his interests although, as finally established by the Supreme Court, he had suffered no genuine detriment to his rights.

24. Last but not least, once the applicant learned of the claimant ’ s contested observations, it was open to him to ask for their copy and to substantiate his complaint of unfairness of the proceedings with references to the contents of those observations. However, there is no indication that he has done so and his complaint, both before the Constitutional Court and before this Court, has only been general in nature.

25. In these circumstances, even assuming that the non-communication of the claimant ’ s observations to the applicant raises an issue of fairness of the proceedings under Article 6 § 1 of the Convention, it may not be seen as having caused him any significant disadvan tage in terms of Article 35 § 3 (b) of the Convention.

26. 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. In the assessment of this “safeguard clause” the Court takes into account, in particular, the developments in domestic law and practice and whether the legal problem in question has already been sufficiently addressed in its case-law (see, for example, Hanzl and Špadrna , cited above, and Kiliç and Others , cited above, § 26).

27. With regard to Slovakia, the problem of non-communication of observations of another party to judicial proceedings to the applicant has been identified in relation to the proceeding s before a court of appeal (see Trančíková , cited above, §§ 37-49), a court of cassation (see Hudáková and Others v. Slovakia , no. 23083/05, §§ 25-32, 27 April 2010), as well as the Constitutional Court (see Čičmanec v. Slovakia , no. 65302/11, §§ 59-65, 28 June 2016). The implementation of the Court ’ s judgments in these cases was concluded by 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 27 July 2010 and no. CM/ ResDH ( 2017)371 of 25 October 2017. The general measures adopted by the respondent State in the course of the implementation of these judgments involved their translation, publishing and dissemination and, as appropriate, changes in the relevant domestic judicial practice.

28. It is true that, as noted above, the proceedings before the Supreme Court initiated by the Prosecutor General through an extraordinary appeal on points of law is an extraordinary phase of proceedings subject to specific features and that, as a matter of principle, the scope of the right to adversarial proceedings may vary depending on the specific features of the given case (see, for example, Hudáková and Others , cited above, § 26, with further references). However, this of itself does not change the fact that, in the cases cited above, the Court has already had several opportunities to rule on the issue that is substantially the same as that obtaining in this case. Accordingly, the application cannot be seen as raising serious questions of application or interpretation of the Convention, or important questions of national law. Respect for human rights as defined in the Convention and the Protocols thereto therefore does not require an examination of the application on the merits.

29. 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. It is the “case” understood in that way that has to be “duly considered by a domestic tribunal” for the purposes of Article 35 § 3 (b) of the Convention (see, for example, Liga Portuguesa de Futebol Profissional v. Portugal ( dec. ), no. 49639/09, 3 April 2012).

30. 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. In addition, his arguments on points of law were advanced by the Prosecutor General before the court of cassation, where they received a judicial examination, and his constitutional complaint, including the issue of the non-transmission of the claimant ’ s observations to him, was examined by the Constitutional Court.

In these circumstances, the Court finds that the applicant ’ s case has been duly considered by a domestic tribunal withi n the meaning of Article 35 § 3 (b) of the Convention. This is not altered by the mere fact that, in relation to the applicant ’ s constitutional complaint, the Constitutional Court appears to have reached a different conclusion than in an unrelated but similar previous case (see paragraph 13 above).

31. 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 28 May 2019 .

Stephen Phillips Dmitry Dedov Registrar President