FIRST SECTION

DECISION

Application no. 15765/17 Jason Scott GERBER against Slovakia

The European Court of Human Rights (First Section), sitting on 9 November 2021 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 11 February 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

The applicant, Mr Jason Scott Gerber, is an American national, who was born in 1968 and lives in New York. He was represented before the Court by Ms V. Kurucová, a lawyer practising in Bratislava.

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

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

The applicant has been in dispute with his ex-wife over the custody and visiting rights in respect of their two children.

On 26 August 2014, the first-instance court dismissed a motion by the applicant’s ex-wife dated 29 July 2014, by which she sought a preliminary measure denying the applicant any contact with their children. Following her appeal of 19 September 2014, the Bratislava Regional Court issued decision no. 11 CoP 526/2014-110 on 19 November 2014, by which it denied the applicant any contact with his children until the final decision on the merits. The applicant’s appeal on points of law of 13 March 2015 was dismissed by the Supreme Court on 21 October 2015; a translated version of that decision was served on the applicant’s representative on 23 March 2016.

On 20 May 2016, the applicant lodged a constitutional complaint through his legal representative by which he challenged decision no. 11 CoP 526/2014-110 of 19 November 2014. He notably complained about the unfairness of the proceedings having led to that decision and about a violation of his right to respect for family life. The complaint stated that the applicant was represented by the attorney office K. & Partners, and was signed by the then manager (konateľ) of that office, L.O.

The constitutional complaint was accompanied by an authority form dated 9 April 2015, designed for the purposes of the proceedings before the Constitutional Court concerning the Bratislava Regional Court’s decision no. 11 CoP 154/2014-175 of 25 April 2014. In that authority form, the applicant authorised (i) the attorney L.O., partner in the attorney office K. & Partners, to consult the file and to participate in the hearing, and (ii) the attorney office K. & Partners, acting through its manager M.K., to represent him in the above proceedings, namely to file submissions.

In the meantime, on 29 April 2016, M.K. was suspended, on her own request, in the exercise of her activities of attorney. This was a publicly known fact since M.K. took up a function in the State administration.

By the decision no. I. ÚS 390/2016 of 15 June 2016 (served on 11 August 2016), the Constitutional Court rejected the above constitutional complaint as not complying with the formal requirements. The Constitutional Court considered that, in a situation where the authority form accompanying the constitutional complaint authorised an attorney office (legal person) to act on the applicant’s behalf and where the manager of the attorney office who had accepted the authorisation (M.K.) had been suspended in the exercise of her activities of attorney at the time of the lodging of the complaint, the applicant should have submitted a new authority form authorising another attorney to represent him.

Pursuant to section 20 (2), a person who wished to bring proceedings before the Constitutional Court had to submit an authority form for the lawyer designated specifically for the proceedings before that court.

According to section 12 (1), an attorney can exercise his or her activities of attorney independently or as a manager (konateľ) of a limited-liability company.

Pursuant to section 15 (2), attorneys as managers of a limited-liability company exercise their activities in the name and on behalf of the company, unless this is not possible under specific provisions, in which case they exercise their activities in their own name but on behalf of the company.

Pursuant to section 15 (3), each partner of a limited-liability company acts as the company’s manager. Managers are authorised to act in the name of the company independently from each other and without restrictions.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been deprived of access to the Constitutional Court due to an excessively formalistic and unforeseeable application of procedural rules. He asserted that, as stated in his constitutional complaint and the authority form, he was represented by an attorney office as a legal person acting, at the time of the Constitutional Court’s decision, through its new manager, L.O., who was also an attorney.

The applicant further complained, under Articles 6 § 1 and 8 of the Convention, about the unfairness of the proceedings leading to the preliminary measure of 19 November 2014 which had denied him any contact with his children.

Relying on Article 13 of the Convention, he argued that the formal rejection of his constitutional complaint rendered this remedy ineffective.

THE LAW

The applicant complained that the Constitutional Court had deprived him of access to that court. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

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

The Government submitted, first, that the applicant had not complied with the six-month time-limit from the date of service of the Constitutional Court’s decision on 11 August 2016, given that the present application had reached the Court only on 20 February 2016.

The Government further argued that joining a correct authority form to a constitutional complaint is one of the basic formal requirements stemming from the relevant legislation, of which every attorney must be aware. The Constitutional Court is thus under no obligation to invite the applicants or their representatives to rectify any shortcomings in this respect.

In the instant case the applicant had authorised the attorney office K. & Partners to represent him before the Constitutional Court. The authorisation had been accepted by M.K. who had signed the form on behalf of the office. However, since M.K. had been later suspended in the exercise of her activities of attorney, she could not have been referred to as attorney at the time when the constitutional complaint had been lodged. At that time, the sole partner and attorney of the office K. & Partners had been L.O., who had only been authorised to consult the file and participate in the hearing. The Constitutional Court had therefore rightly considered that the applicant had not been duly represented in the proceedings before it, and the applicant’s legal representative had failed to act with due care to avoid formal errors (in this respect, the Government cited Zubac v. Croatia [GC], no. 40160/12, § 93, 5 April 2018).

The applicant maintained that when an attorney exercises his or her activities as a manager of a limited-liability company, it is the attorney office which is deemed to be the attorney. In this case, he had been validly represented by the attorney office K. & Partners which had lodged the constitutional complaint on his behalf.

The Court notes at the outset that the applicant sent his application on 11 February 2016, that is within the six-month time-limit running from the service of the Constitutional Court’s decision. Consequently, the Government’s preliminary objection must be dismissed.

The Court is thus called to assess whether the applicant and/or his legal representative displayed the requisite diligence when lodging the constitutional complaint. Indeed, procedural rights usually go hand in hand with procedural obligations and litigants are required to show diligence in complying with the procedural steps relating to their case (see, inter alia , Zubac , cited above, § 93).

It is to be noted in the present case that, while the applicant lodged his constitutional complaint on 20 May 2016, through the attorney L.O., he accompanied that complaint with an authority form dated more than one year earlier, that is 9 April 2015, by which L.O. had only been authorised to consult the file and to participate in the hearing. Also, there was no doubt that M.K., the former manager of the attorney office having in 2015 accepted to represent the applicant on behalf of that office, could no longer exercise her activities of attorney as from 29 April 2016. The applicant failed to explain what prevented his legal representative from updating the authority form in order to reflect the current state of affairs.

Even accepting the applicant’s argument that he was represented by a legal person, that is the attorney office K. & Partners, which had acted since 29 April 2016 through his new and sole manager L.O., the Court cannot but point to another defect of the authority form submitted by the applicant to the Constitutional Court. Indeed, although the applicant intended to challenge the Regional Court’s decision no. 11 CoP 526/2014 ‑ 110 of 19 November 2014, as indicated in the constitutional complaint, the authority form was designed for the purposes of challenging another decision by the Regional Court, specifically decision no. 11 CoP 154/2014-175 of 25 April 2014. Consequently, it cannot be said with certainty that he meant to authorise the above-mentioned attorney office to file on his behalf a constitutional complaint against decision no. 11 CoP 526/2014-110 of 19 November 2014 which is at stake in the present case.

Against this background, it does not appear that the applicant and his legal representative demonstrated the requisite diligence in following the relevant procedural rules. The impugned shortcomings could have been avoided from the outset, without any particular effort on the part of the applicant and his attorney. Thus, the adverse consequences of those shortcomings rest on the applicant, and it cannot be concluded that the Constitutional Court’s decision amounted to a disproportionate hindrance impairing the very essence of the applicant’s right of access to a court as guaranteed under Article 6 § 1 of the Convention.

The applicant’s complaint under Article 6 § 1 of the Convention of lack of access to a court is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Relying on Articles 6 and 8 of the Convention, the applicant further complained about the unfairness of the proceedings on the preliminary measure of 19 November 2014 and its repercussions on his right to respect for family life. Under Article 13 of the Convention, he challenged the effectiveness of the constitutional complaint.

The Government argued that, given that the applicant had not complied with the procedural requirements of the domestic law when lodging his constitutional complaint, he had failed to exhaust the domestic remedies properly. They further submitted that the above complaints were manifestly ill-founded.

The applicant disagreed, claiming that the Government’s arguments were unsubstantiated, and that the Regional Court’s decision of 19 November 2014 had been one-sided, surprising and in breach of his right to respect for family life.

In view of the above conclusion concerning the alleged lack of access to the Constitutional Court, the Court considers that in lodging the constitutional complaint against the preliminary measure of 19 November 2014 the applicant failed to comply with the procedural requirements of the domestic law. Therefore, his complaints under Articles 6 § 1 and 8 of the Convention are inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must also be rejected pursuant to Article 35 § 4.

Furthermore, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 § 1, the Court finds no separate issue under the former provision. It follows that this complaint must be rejected as being manifestly ill ‑ founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 December 2021.

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Attila Teplán Péter Paczolay Acting Deputy Registrar President