Communicated on 12 July 2017

THIRD SECTION

Application no. 37016/15 Ľubomír NERUŠIL against Slovakia lodged on 21 July 2015

STATEMENT OF FACTS

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

A. The circumstances of the case

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

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.

The applicant ’ s partner brought an action against the applicant, arguing that the applicant had sold the share to a third person, that he had received the agreed price for it from that person, and that he had wrongfully retained the 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.

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

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. Accordingly, the sale was null and void.

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. In so far as can be established from the summary of these observations 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.

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 aim of the extraordinary appeal was to provide the applicant with legal protection in a situation in which he had suffered no genuine detriment to his rights.

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.

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 practice

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 Tran č íková v. Slovaki a (no. 17127/12, § 23, 13 January 2015).

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

The applicant complains 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 were not communicated to him and that, as a result, he was deprived of the possibility of responding to them.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, was the principle of adversarial proceedings respected as regards the fact that the claimant ’ s observations in reply to the Prosecutor General ’ s extraordinary appeal on points of law were not communicated to the applicant and that, as a result, he had no possibility of reacting to them (see Milatová and Others v. the Czech Republic , no. 61811/00, § 65, ECHR 2005-V; Hudáková and Others v. Slovakia , no. 23083/05, §§ 28-31, 27 April 2010; Juričić v. Croatia , no. 58222/09, §§ 72-78, 26 July 2011; Tran č íková v. Slovakia , no. 17127/12, §§ 37-47, 13 January 2015; ÄŒičmanec v. Slovakia , no. 65302/11, § 59-65, 28 June 2016; and contrast Ringier Axel Springer Slovakia, a.s . v. Slovaki a ( dec. ), no. 35090/07, §§ 88 ‑ 91, 4 October 2011)?