Legal summary

June 2023

Grosam v. the Czech Republic [GC] - 19750/13

Judgment 1.6.2023 [GC]

Article 34

Petition

Recharacterisation of applicant’s complaint by Chamber extending scope of case beyond that initially referred to it in the application form

Article 35

Article 35-1

Four-month period (former six-month)

Later addition by applicant of new complaint, after initial communication of the case to the respondent Government, not within the six-month time-limit: inadmissible

Facts – The applicant was an enforcement officer who, as a member of a liberal profession, was, on the State’s behalf, in charge of performing enforced execution of enforceable titles. The disciplinary chamber of the Supreme Administrative Court found him guilty of misconduct and fined him. The applicant lodged an unsuccessful constitutional appeal.

In his application to the Court, the applicant raised complaints under Article 6 § 1 and Article 2 of Protocol No. 7. Under the latter provision, he complained of the fact that the domestic law excluded appeals against decisions of the Supreme Administrative Court’s disciplinary chamber. Following the initial communication of the case, a Chamber of the Court of its own motion invited the parties to submit further written observations under Article 6 § 1, notably related to whether, given its composition, the disciplinary chamber met the requirements of a “tribunal established by law” within the meaning of that provision. In his observations of 5 November 2015 to the Chamber the applicant contended that it had not.

In a judgment of 23 June 2022, a Chamber of the Court, after recharacterising the complaint under Article 2 of Protocol No. 7 to fall under Article 6 § 1, held, by four votes to three, that there had been a violation of Article 6 § 1 in that the disciplinary court had not met the requirements of an independent and impartial tribunal. It also held, by a majority, that there was no need to examine the admissibility and merits of the remaining complaints under Article 6 § 1 concerning the fairness of the disciplinary proceedings.

The case was referred to the Grand Chamber at the Government’s request.

Law –

Article 6 § 1 (complaint about an independent and impartial tribunal):

(a) Scope of the case – The Court reiterated that the complaints an applicant proposes to make under Article 6 of the Convention must contain all the parameters necessary for the Court to define the issue it will be called upon to examine. The scope of application of Article 6 was very broad and that the Court’s examination was necessarily delimited by the specific complaints submitted to it. Further, the Court could base its decision only on the facts “complained of”. It was not sufficient that a violation of the Convention was “evident” from the facts of the case or the applicant’s submissions. Rather, the applicant had to complain that a certain act or omission entailed a violation of the rights set forth in the Convention or the Protocols thereto, in a manner which should not leave the Court to second-guess whether a certain complaint was raised or not. That meant that the Court had no power to substitute itself for the applicant and formulate new complaints simply on the basis of the arguments and facts advanced (compare the judgments of the International Court of Justice in the cases of Nuclear Tests (Australia v. France) and Dispute over the Status and Use of the Waters of the Silala ).

The only issue in dispute regarding the scope of the case was whether the applicant’s complaint under Article 2 of Protocol No. 7, as formulated in his application, could be examined under Article 6 § 1 as a complaint about an independent and impartial tribunal, as the Chamber had done after recharacterising it to fall under that provision.

In the present case, the applicant had not claimed that the inclusion in the disciplinary chamber’s composition of members who were not professional judges had entailed a violation of Article 2 of Protocol No. 7. Although he had argued that it could not be regarded as the “highest tribunal” as its lay members were not subject to the same requirements of expertise and independence as judges, that argument had been aimed only at excluding the application of the exception provided for in Article 2 § 2 of the above provision, according to which the right of appeal did not apply in cases where the accused had been tried in the first instance by the highest tribunal.

Moreover, the applicant had emphasised that the disciplinary chamber’s composition was atypical among the higher judicial institutions in the Czech Republic, which normally did not involve lay assessors, whose participation was common rather in some first-instance courts. In short, he had not argued that it was not a “tribunal” but merely that it was not the “highest tribunal”. Such a secondary argument could not be equated with a complaint since, as argued by the applicant, the disciplinary chamber’s composition had not been the cause or the fact constitutive of the alleged violation of Article 2 of Protocol No. 7 (compare the judgment of the International Court of Justice in the Nuclear Tests (Australia v. France) case). It could not therefore be interpreted as raising a complaint that that court had not been an independent and impartial tribunal within the meaning of Article 6 § 1. The applicant had not raised such a complaint in his application form but only subsequently in his observations of 5 November 2015 to the Chamber, after the latter had given notice of the application to the respondent Government. That new complaint could not be considered as concerning a particular aspect of his initial complaint under Article 2 of Protocol No. 7, as it related to distinct requirements arising from Article 6 § 1.

It further followed that, by posing a question, concerning compliance with the requirement of a “tribunal established by law” under Article 6 § 1, the Chamber of its own motion had extended the scope of the case beyond the one initially referred to it by the applicant in his application. The Chamber thereby had exceeded the powers conferred on the Court by Articles 32 and 34 of Convention.

(b) Admissibility – In view of the above findings, the applicant’s complaint to the effect that the disciplinary court had not been an independent and impartial tribunal which he had raised in 2015, had been submitted more than six months after the disciplinary proceedings against him had ended (in 2012).

Conclusion: preliminary objection upheld; inadmissible (unanimously).

Furthermore, to the extent the applicant complained under Article 6 § 1 of the fairness of the disciplinary proceedings, the Court fully agreed with the Chamber’s conclusion that Article 6 § 1 was applicable under its civil but not under its criminal head and dismissed, unanimously, the complaints as manifestly ill-founded. Lastly, having regard to its finding of inapplicability of that provision under its criminal head, the Court, unanimously, rejected as incompatible ratione materiae the complaint under Article 2 of Protocol No. 7.

(See also Radomilja and Others v. Croatia [GC], 37685/10 and 22768/12, 20 March 2018, Legal Summary ; Grosam v. the Czech Republic , 19750/13, 23 June 2022, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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