CONCU RRING OPINION OF JUDGE LEMMENS , JOINED BY JUDGE VUČINIĆ

1. I voted with the majority to find a violation of Article 6 § 1 of the Convention. However, my reasons for reaching that conclusion are not the same as those of my colleagues.

2. The complaint concerns the proceedings before the Supreme Court, following a petition by the Tax Authority for review of the judgment of the Fejér County Regional Court. The first-instance court had found for the applicant on the basis of testimony given by the applicant ’ s father who had declared that the disputed funds were a loan which he had granted the applicant. The court found that no further evidence, in particular with respect to the origin of the father ’ s income, was necessary (see paragraph 9 of the judgment).

In its petition for review, the Tax Authority insisted “in particular that the applicant ’ s allegations should have been supported by bookkeeping evidence” (ibid.). This is an argument in law.

The applicant, as the adverse party in the proceedings before the Supreme Court, replied that “her father ’ s statement was of as good probative value as any bookkeeping evidence would have been” (ibid.).

The Supreme Court began by examining the complaint directed against the decision of the regional court. It found that the burden of proof lay on the applicant, who had to support her challenge to the Tax Authority ’ s decision with “credible evidence”. It found that the testimony given by the father was “implausible, given that it was not accompanied by any bookkeeping evidence demonstrating any transfer of funds, any bank statement, any contract or the like”. It concluded “that the applicant ’ s assertions fell short of being supported by “credible evidence””, and on that basis quashed the decision of the regional court (paragraph 10 of the judgment).

The Supreme Court could have sent the case back to the regional court for a reassessment of the applicant ’ s claim in light of its holding. However, it did not do so. Making use of its powers under section 275 (4) of the Code of Civil Procedure, which provides that the Supreme Court can render a decision on the merits of the case “if the facts necessary for taking [a new] decision can be established”, it held that the applicant had not met the burden of proof and therefore dismissed her opposition to the Tax Authority ’ s decision (ibid.).

3. The question raised by the present application is whether the applicant had a fair opportunity to defend herself in the proceedings before the Supreme Court, having regard to the nature of the issues presented to that court.

In this respect it should be remembered that the right to a fair trial encompasses a right to adversarial proceedings. That right means in principle the opportunity for the parties to have knowledge of and to comment on all evidence adduced or observations filed with a view to influencing the court ’ s decision (see Lobo Machado v. Portugal , 20 February 1996, § 31, Reports of Judgments and Decisions 1996 ‑ I, and Vermeulen v. Belgium , 20 February 1996, § 33, Reports 1996 ‑ I). The court itself has to respect the adversarial principle, for instance when it decides the case on grounds invoked on its own motion (see ÄŒepek v. the Czech Republic , no. 9815/10, § 45, 5 September 2013).

The decisive issue therefore is whether the applicant was not taken by surprise when the Supreme Court decided not only to examine the legality of the decision challenged before it, but also to dispose of the case on the merits (see, mutatis mutandis , Dallos v. Hungary , no. 29082/95, § 48, ECHR 2001 ‑ II; Laaksonen v. Finland , no. 70216/01, § 32, 12 April 2007; Suuripää v. Finland , no. 43151/02, § 46, 12 January 2010; and ÄŒepek , above, § 48; compare and contrast Keskinen and Veljekset Keskinen Oy v. Finland , no. 34721/09, § 40, 5 June 2012). Special scrutiny is called for in situations where the proceedings appear to have taken an unexpected turn, in particular when this was a matter left to the discretion of the relevant court (see ÄŒepek , cited above, § 48).

4. In the present case, the petition for review was limited to a question in law, namely whether the regional court could base its decision on the testimony of the applicant ’ s father alone, in other words whether that testimony could constitute credible evidence. By deciding, on the basis of an assessment of that testimony, that it was in fact not credible evidence, and by disposing of the merits of the case on that ground, the Supreme Court extended of its own motion the limits of the dispute before it. In my opinion, the applicant could not be expected to foresee that the Supreme Court would proceed in that way. It is important to note in this regard that the fact of disposing of the merits of the case was rather an exception to the general rule, which provided for quashing the decision of the lower court and remitting the case to it.

The right to adversarial proceedings could not be respected in this case without the Supreme Court either explicitly inviting the parties to give their views on whether the testimony given by the applicant ’ s father actually constituted credible evidence (see Čepek , cited above, § 57), in which case an oral hearing would also become inevitable (see paragraph 37 of the judgment), or remitting the case to the regional court for an assessment of the credibility of the father ’ s testimony in light of any other elements to be adduced by the applicant.

5. In short, I consider that the question whether the Supreme Court could decide the case without an oral hearing is not relevant in this case. The main question is whether the proceedings had been fully adversarial. One of the means of ensuring the adversarial character of the proceedings was to hold an oral hearing after having invited the parties to give their views on the credibility of the witness evidence. Another means would have been for the Supreme Court to limit itself to addressing the question in law raised by the petition for review, and to leave the assessment of the facts to the regional court. By not adopting any of these means and by immediately deciding on the merits of the case, the Supreme Court violated the applicant ’ s right to a fair trial.