Communicated on 17 April 2014

THIRD SECTION

Application no. 57787/12 Ján MIHAL against Slovakia lodged on 3 September 2012

STATEMENT OF FACTS

The applicant, Mr Ján Mihal , is a Slovak national, who was born in 1956 and lives in Pezinok . He is represented before the Court by Mr M. Hrbek, a lawyer of Černejová & Hrbek, s.r.o . practising in Bratislava.

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

The applicant is a judge.

On 6 April 2011 the Supreme Court (disciplinary court) found the applicant guilty of two serious disciplinary offences in the context of his behaviour as a Supreme Court judge in three s ets of criminal proceedings. It sanctioned the applicant by ordering his transfer to a lower instance court.

On 12 June 2011 the applicant appealed.

The Supreme Court (disciplinary appeal court) scheduled a hearing for 12 October 2011.

On 6 September 2011 a general practitioner put the applicant on sick leave. The applicant informed the Supreme Court that he was ill. He submitted a medical certificate and indicated that he wished to attend the hearing in person.

The hearing was re-scheduled to 17 October 2011.

The summons was served on the applicant ’ s lawyer on 16 September 2011. As the summons could not be delivered to the applicant at his address, a notice was left in the mailbox informing him that the mail was to be collected at the post office within a specified time-limit. After expiry of that time-limit the summons was returned to the sender.

In a letter of 13 September 2011 the Supreme Court asked the physician to indicate the expected period of the applicant ’ s incapacity to work. An inquiry was made as to whether the applicant would be able to attend the hearing scheduled for 17 October 2011. The physician was further asked to allow the applicant to leave his place on 17 October 2011 in as far as his health permitted.

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

In a written reply which was dated 3 October 2011 and which the Supreme Court received on 10 October 2011 the physician 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 were not yet available. Finally, the letter indicated that the applicant was treated with preparations having analgetico spasmolytic effects which were susceptible of affecting his ability to concentrate.

On 14 October 2011 the applicant ’ s representative excused his and his client ’ s absence from the hearing scheduled for 17 October 2011 and asked for the case to be adjourned.

On 17 October 2011 the Supreme Court (disciplinary court of appeal) examined the case in the absence of the applicant and his lawyer. It quashed the first-instance decision and then found the applicant guilty of two serious disciplinary offences committed in the context of his dealing, as a Supreme Court judge, with two sets of criminal proceedings. It discharged the applicant as regards his alleged misconduct in respect of the third set of criminal proceedings in issue. It sanctioned the applicant by transferring him to a court of lower instance.

The decision stated that the appeal disciplinary court considered the applicant ’ s and his lawyer ’ s absence as another part of the former ’ s efforts to delay the proceedings. With reference to the case file, the decision stated that the applicant had hampered the first-instance proceedings by avoiding attendance at hearings and refusing to receive summons. The decision indicated that the summons to the hearing on his appeal could not be served on the applicant at his place notwithstanding that he had been on sick leave and had therefore been expected to stay at home. The appeal court further noted that the applicant had had the possibility of collecting the summons at the post office as he had been allowed outside walks for four hours a day. The appeal disciplinary court concluded that the applicant ’ s sick-leave did not justify an adjournment of the hearing as he had not been prevented from leaving his place. Furthermore, the applicant ’ s treating physician had not expressly stated that the applicant ’ s health prevented him from attending the hearing.

On 2 December 2011 the applicant filed a complaint to the Constitutional Court. He alleged a breach of Article 6 § 1 of the Convention in that the disciplinary appeal court had determined the case in his absence and notwithstanding that he and his lawyer had duly apologised.

On 14 December 2011 the Constitutional Court declared the complaint admissible.

On 18 April 2012 the Constitutional Court found that there had been no breach of Article 6 § 1 and its constitutional equivalents as a result of the disciplinary appeal court ’ s proceeding with the case in the applicant ’ s absence. 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 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 had reacted in writing to the submission by the President of the Supreme Court in the context of appeal proceedings, (v) the applicant had been partly successful in his appeal, and (vi) the appeal court had accepted the applicant ’ s first request for the case to be adjourned, and 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 was not arbitrary.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that his right to a fair and public hearing by a tribunal was breached in that the disciplinary court of appeal examined the case in his absence.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing, in accordance with Article 6 § 1 of the Convention, in view of his complaint that the disciplinary court of appeal proceeded with the case in his absence?