KOMANICKY v. SLOVAKIA - 32106/96 [2002] ECHR 477 (4 June 2002)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

1. The case originated in an application (no. 32106/96) against the Slovak Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Ioan Kornelij Komanický (“the applicant”), on 1 November 1995.

2. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Vršanský.

3. The applicant alleged, in particular, that his right to a fair and public hearing had been violated in proceedings concerning his dismissal from a job in 1991 and that he had no effective remedy at his disposal in that respect.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

8. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

9. The applicant was employed by the District National Committee (Okresný národný výbor) in Bardejov. In 1988 he was dismissed for breach of discipline. Subsequently courts at two levels of jurisdiction declared the dismissal unlawful. Their decisions became final on 2 August 1991.

10. In 1990, while the above proceedings were pending, the national committees ceased to exist ex lege, and their liquidation formally ended on 31 July 1991. The national committees were replaced by district offices (okresné úrady) which were not formally their legal successors.

11. On 2 September 1991 the Bardejov District Office gave notice to the applicant pursuant to Section 46 (1) (b) of the Labour Code. The dismissal became effective on 31 December 1991. The applicant challenged this decision. He argued, in particular, that the dismissal was unlawful and claimed compensation for damage caused by the termination of his contract of employment.

12. On 16 July 1993 the Bardejov District Court (Okresný súd) heard the parties and dismissed the applicant’s action.

13. The applicant appealed. He alleged that the governmental regulations relating to liquidation of the former national committees were unlawful, that he had become an employee of the District Office in Bardejov after his dismissal in 1988 had been declared unlawful on 2 August 1991, and that the District Office had paid his salary until the end of 1991.

14. On 8 March 1994 the Košice Regional Court (Krajský súd) heard the parties. The case was adjourned and the representative of the defendant was requested to submit the Government’s regulation of 24 November 1990 concerning the practical aspects of liquidation of the national committees. On 14 April 1994 the applicant complained to the Regional Court that it should have decided on the case on 8 March 1994 as it had had all relevant evidence before it. Another hearing before the Regional Court was held on 26 April 1994. The parties were acquainted with documentary evidence submitted by the representatives of the defendant. The applicant requested the exclusion of the Regional Court judges.

15. On 7 July 1994 the Košice Regional Court (Krajský súd) quashed the first instance judgment and ordered the District Court to take further evidence. The decision stated that the first instance court had not established with sufficient certainty whether or not the applicant had been employed by the District Office in Bardejov between 2 August 1991 and his second dismissal. In particular, the Regional Court considered it necessary to establish whether the applicant had received a salary, or compensation therefor, during the period in question, that is, whether the sums which he had received had been paid from the funds allocated to the District Office or from a special fund of the Ministry of the Interior. The appellate court further instructed the District Court to establish whether or not the Ministry of the Interior had authorised the head of the District Office in Bardejov to settle the applicant’s claims. The decision stated that witnesses should be heard with a view to establishing the above facts. The case was sent back to the Bardejov District Court for a new adjudication.

16. The applicant and the representative of the defendant failed to appear before the District Court on 8 September 1994. The applicant did not appear at subsequent hearings scheduled for 26 September 1994 and 4 October 1994. He excused his absence on the last mentioned date. In his letter of 3 October 1994 the applicant explained that he could not attend the hearing for personal reasons and that he had not been allowed to become properly acquainted with the case file. The applicant further requested that witnesses and representatives of the defendant should not be heard in his absence.

17. Another hearing was scheduled for 4 November 1994. The District Court proceeded with the case in the applicant’s absence as, according to the Government, the summons had been served on the applicant’s daughter and the applicant had not excused himself. The applicant contends that he was not summoned. On 4 November 1994 the District Court heard two officials of the District Office in Bardejov who confirmed that the applicant had not been employed by that authority and that he had not received any pay from the budget of the District Office. The compensation for pay the applicant received between 2 August 1991 and 31 December 1991, that is, until his dismissal became effective, were paid from a special fund of the Ministry of the Interior. The witnesses further explained that the notice which the District Office had sent to the applicant related to his contract of employment with the District National Committee which, in the meantime, had ceased to exist. The District Court had sent it in accordance with the relevant instructions issued by the Ministry of the Interior.

18. On 14 November 1994 the District Court adjourned the case as the applicant had excused himself in advance that he was ill.

19. The next hearing was scheduled for 10 January 1995. The applicant received the summons on 27 December 1994. According to the applicant, he submitted, at 7.30 a.m. on 10 January 1995, a letter to the District Court’s registry informing the court that he would not attend the hearing scheduled for 8.30 a.m. on the same day. In the letter the applicant explained that, several days earlier, he had not been allowed to consult the case file and that, therefore, he did not consider it necessary to excuse himself for his absence. The Government maintain that the letter was delivered to the court’s registry at 10 a.m. This is contested by the applicant who alleges that the time of receipt of the letter was added to it later and that his copy of the letter, stamped by the court’s registry, bears no indication of the hour when it was submitted.

20. On 10 January 1995 the Bardejov District Court proceeded with the case in the applicant’s absence. It delivered a judgment by which it dismissed the action. In the judgment the District Court found that the District Office was not a legal successor to the applicant’s former employer and that the applicant had no right to be employed by the District Office. The court held that, by sending a notice to the applicant, the District Office had acted in accordance with the relevant regulations of the Ministry of the Interior and of the Ministry of Finance. Under these regulations, the district offices were charged with settling issues concerning labour relations which remained unresolved after the working groups established with a view to liquidating the national committees had ceased to exist by 31 July 1991. The court concluded that the District Office had acted in accordance with Section 251 of the Labour Code.

21. The applicant appealed. He alleged that the District Office had had no power to send him a notice, and that it should have offered him a job after his dismissal by the previous employer had been declared unlawful. He alleged, with reference to the relevant pay slips, that he had been paid from the same account as the other employees of the District Office after his first dismissal had been declared unlawful on 2 August 1991. The applicant considered irrelevant that the Ministry of the Interior had put at the District Office’s disposal a sum of money for the purpose of settling any outstanding issues relating to the existence of the former national committees as, in his view, that sum of money had been used for different purposes. In his appeal the applicant stated that he had been a supervisor and that he had an excellent knowledge of the relevant issues. The veracity of his allegations could be proved by an expert.

22. The applicant also complained to the appellate court that the District Court had not considered his arguments, that it had not established the relevant facts and that it had decided in his absence. Finally, the applicant stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions to the court and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified.

23. Hearings before the Košice Regional Court scheduled for 20 September 1995 and 26 January 1996 were adjourned as the parties did not appear. The applicant excused his absence on both occasions. Prior to the latter hearing the applicant informed the court that he had encountered various difficulties including health problems and requested that the case be decided in his presence.

24. The next hearing was scheduled for 6 March 1996. The Regional Court invited the applicant to submit a medical certificate should he not be able to attend, failing which the case would be decided in his absence. On 2 March 1996 the applicant sent a registered letter in an envelope addressed to the “State Regional Court” in Košice. In the letter the applicant informed the Regional Court that he was ill and enclosed a medical certificate. The applicant further asked the court not to proceed with the case in his absence. The letter indicated the case number, the name of the presiding judge and also the date of the hearing.

25. The letter was stamped by the registry of the Regional Court. The stamp indicates that the letter was delivered on 5 March 1996. The letter bears a hand-written remark by the president of the Regional Court dated 4 March 1996 and indicating that it should be transmitted to the presiding judge. The letter bears another hand-written remark by the presiding judge indicating that the chamber by which the case fell to be examined had received it on 6 March 1996 at 10.30 a.m.

26. The Government submit that the letter was considered to be a complaint and that the envelope was submitted, unopened, to the secretariat of the president of the Regional Court on 5 March 1996. The president of the Regional Court mistakenly dated his above instruction 4 March 1996. According to the Government, the applicant’s letter reached the presiding judge five minutes after the delivery of the judgment on the case.

27. On 6 March 1996 the Košice Regional Court examined the case in the applicant’s absence and upheld the first instance judgment. It stated that the applicant’s letter posted on 2 March 1996 had reached the judges on 6 March 1996 at 10.30 a.m., that is after the hearing was over. The judgment further stated that the letter had been addressed to the president of the Regional Court and not directly to the presiding judge.

28. In its judgment the Regional Court pointed out that it had taken further evidence, in that it had requested the Ministry of the Interior to submit a report concerning the delegation of its powers to District Offices. It concluded, with reference to all the evidence before it, that the applicant’s appeal was ill-founded.

29. In particular, the Regional Court found that the applicant’s dismissal by the District National Committee in Bardejov had been declared unlawful by a decision which became final on 2 August 1991. By that time the national committees had ceased to exist ex lege, and their liquidation had formally ended. In accordance with the relevant instructions issued by the Ministry of the Interior and the Ministry of Finance, the newly established district offices were ordered to settle any labour issues relating to the former national committees which could not be resolved by 31 July 1991. The Regional Court therefore upheld the view of the first instance court according to which the District Office in Bardejov had acted in accordance with Section 251 of the Labour Code. The Regional Court had also regard to the supplementary evidence which the District Court had taken on 4 November 1994 and which indicated that the money which had been paid to the applicant had been derived from the budget of the Ministry of the Interior. The Regional Court concluded that the applicant had not become an employee of the District Office. Accordingly, the notice in question was in conformity with Section 46 (1) (b) of the Labour Code.

30. On 23 April 1996 the applicant lodged an appeal on points of law. He complained, inter alia, that he had not been able to act before the appellate court and invoked Article 237 (f) of the Code of Civil Procedure.

31. On 26 November 1997 the Supreme Court (Najvyšší súd) rejected the appeal on points of law as being inadmissible without hearing the parties. In its decision the Supreme Court found that there had been no shortcomings within the meaning of Article 237 (f) of the Code of Civil Procedure in the proceedings challenged by the applicant. The Supreme Court did not address the merits of the case.

32. Section 46 (1) (b) provides that a person may be dismissed from a job when the organisation employing him or her ceases to exist or when a part of that organisation is to be incorporated into another organisation and the latter has no possibility of offering the person concerned a job in accordance with his or her contract of employment.

33. Pursuant to Section 251, in cases when an organisation is being liquidated, the liquidator or the State has to satisfy the claims of the employees of such an organisation.

34. Article 101 (1) provides that the parties are obliged to assist the court in achieving the purpose of the proceedings, by inter alia, complying with the court’s instructions. Paragraph 2 of Article 101 entitles the court to proceed with a case even when the parties remain inactive. When a party to the proceedings fails to appear at a hearing despite the fact that he or she has been duly summoned and when such a party has not requested that the hearing be adjourned for a serious reason, the court may proceed with the case in the absence of that party. It shall thereby have regard to the contents of the file and the evidence which has been already taken.

35. Pursuant to Article 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court.

36. In accordance with the Supreme Court’s case-law (Collection of the Judicial Decisions and Opinions of the Supreme Court, No. R 31/1995), a party’s illness which has been duly certified by a doctor represents a serious reason within the meaning of Article 101 (2) of the Code of Civil Procedure. When a party to the proceedings has asked in time that the proceedings be adjourned in such a case, the court’s proceeding with the case in that party’s absence is considered as preventing him or her from acting before the court within the meaning of Article 237 (f) of the Code of Civil Procedure.

37. The applicant made a number of submissions concerning issues which were not included in his original application and also concerning those parts of the application which had been declared inadmissible.

38. The Court recalls that the scope of the case before it is determined by the decision on admissibility (see, mutatis mutandis, the Çiraklar v. Turkey judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII, p. 3070, § 28). The Court declared admissible the complaints relating to the alleged absence of a fair and public hearing and of an effective remedy in that respect. It follows that the scope of the present case is limited exclusively to those complaints.

39. The applicant complained that his right to a fair and public hearing was violated in the proceedings concerning the lawfulness of his dismissal in 1991. He alleged a violation of Article 6 § 1 of the Convention the relevant part of which provides:

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

40. In the Government’s view, the applicant, by his inappropriate behaviour, was himself the cause of the fact that the courts decided the case in his absence. Such a procedure was in accordance with Article 101 (2) of the Code of Civil Procedure. The Government contended that the applicant had been aware that he should have addressed his request for the adjournment of the hearing scheduled for 6 March 1996 directly to the presiding judge and that he could also have notified the court of his absence by phone or by a telegram. They concluded that the applicant had waived, in substance, his right to attend the hearings as he had neither appeared before the courts in person, nor had he presented an excuse in due time and form.

41. Furthermore, the applicant had the possibility of submitting all his arguments to the courts prior to the delivery of the judgments. Those arguments remained unchanged after the Regional Court had quashed the first judgment delivered by the Bardejov District Court on 16 July 1993, and the courts duly addressed the applicant’s arguments in their decisions.

42. The Government also recalled that the applicant had admitted, in his submissions addressed to the Košice Regional Court on 14 April 1994, that the evidence available was sufficient for a judgment to be delivered, and that the Supreme Court had found no shortcomings in the proceedings at the lower instances. The guarantees of a fair hearing were, therefore, respected.

43. The applicant submitted that Article 6 § 1 had been violated in that the courts had not applied the law correctly and that they had decided arbitrarily without having heard him. As to the hearing before the Košice Regional Court of 6 March 1996, the applicant maintained that his letter with the relevant documents indicating that he would not be able to attend had been delivered in time. He considered it irrelevant that the administration of the court had failed to transmit the letter to the presiding judge prior to the hearing.

44. In the applicant’s view, his right to a fair and public hearing was violated, in particular, in that he had not been allowed to study the case file prior to the hearing before the District Court held on 10 January 1995 and that he had no possibility of commenting on statements made by the witnesses at the hearing on 4 November 1994. This shortcoming was not remedied at the later stage of proceedings since both the Regional Court and the Supreme Court decided in his absence. Finally, the applicant submitted that the Regional Court’s judgment of 6 March 1996 was based on additional evidence which the Ministry of the Interior had submitted at the Regional Court’s request and of which the applicant had not been aware.

45. The Court recalls that the principle of equality of arms – one of the elements of the broader concept of fair trial – requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, pp. 1567-68, § 38).

46. The concept of a fair hearing also implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, § 24, and the Mantovanelli v. France judgment of 18 March 1997, Reports 1997-II, p. 436, § 33).

47. The Court’s role is to ascertain whether the proceedings considered as a whole were fair as required by Article 6 § 1. In this context, importance is to be attached to the appearance of the fair administration of justice. However, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, mutatis mutandis, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46; the Borgers v. Belgium judgment of 30 October 1991, Series A no. 214-B, p. 31, § 24 and the Garcia Ruiz v. Spain judgment of 21 January 1999, Reports 1999-I, pp. 98-99, § 28).

48. In the instant case, the Bardejov District Court, on 4 November 1994, heard witnesses in accordance with the instructions of the appellate court with a view to establishing the relevant facts of the case. The hearing took place in the applicant’s absence, and it is disputed between the parties whether or not the applicant was duly summoned. Another hearing before the District Court was held on 10 January 1995 and it is disputed between the parties whether or not the applicant excused himself in due time and in the appropriate manner.

49. The Court considers that it is not called upon to determine these issues as, in any event, the alleged shortcomings in the proceeding at first instance could have been remedied in the course of the appeal proceedings. In fact, in his appeal against the District Court’s judgment of 10 January 1995 the applicant complained that the District Court had taken evidence and that it had decided in his absence. He also stated that the appellate court should proceed with the case in his presence, that he had the intention to make further oral submissions and that he wished to put questions to witnesses and to the representatives of the defendant with a view to having the relevant facts clarified.

50. Thus the applicant explicitly requested that he be given an opportunity to comment orally on the evidence available in the course of the appellate proceedings. Whatever the actual effect which the evidence may have had on the decision in the final instance, it was for the applicant to assess whether it required his comments. The onus was therefore on the Košice Regional Court to afford the applicant an opportunity to submit his comments prior to its decision.

51. The Regional Court obviously had the intention of affording such an opportunity to the applicant in that it scheduled public hearings for 20 September 1995 and 26 January 1996. On both occasions the case was adjourned as the parties failed to appear, the applicant having excused his absence. The third hearing was scheduled for 6 March 1996. The applicant excused his absence by a registered letter posted on 2 March 1996 with which he enclosed a medical certificate. The letter was delivered to the registry of the Regional Court not later than on 5 March 1996, that is the day preceding the hearing.

52. The letter indicated the case number, the name of the presiding judge and also the date of the hearing. The Court cannot, therefore, attach decisive importance to the Government’s argument that the envelope in which the letter was sent mentioned only the Regional Court in general. Accordingly, the fact that the letter was mistakenly considered to be a complaint and submitted to the secretariat of the president of the Regional Court, and that it was handed over to the presiding judge only after the hearing of 6 March 1996 had ended cannot be held against the applicant.

53. Thus the applicant requested in advance that the hearing be adjourned for a serious reason within the meaning of Article 101 (2) of the Code of Civil Procedure. In accordance with the Supreme Court’s case-law, in such circumstances a court’s proceeding with the case in the party’s absence represents a procedural shortcoming as a result of which that party is regarded as being prevented from acting before the court. However, the applicant’s appeal on points of law to this effect was of no avail.

54. The Court further notes that prior to deciding on the case the Regional Court had considered additional evidence which had not been taken in the proceedings at first instance, namely a report by the Ministry of the Interior concerning the delegation of powers to district offices. The applicant could not comment on that evidence at the hearing held on 6 March 1996 which preceded the delivery of the judgment on the case for reasons which, as the Court has found above, cannot be imputed to him.

55. In these circumstances, and having regard to the requirements of the principle of the equality of arms and to the role of appearances in determining whether they have been complied with, the Court finds that the procedure followed did not enable the applicant to participate properly in the proceedings and thus deprived him of a fair hearing within the meaning of Article 6 § 1 of the Convention. In conclusion, there has been a violation of this provision.

56. Having regard to its conclusion that there was an infringement of the applicant’s right to a fair hearing for the reasons stated above and considering that it has only limited powers to deal with errors of fact or law allegedly committed by national courts, the Court does not find it necessary to examine separately the applicant’s complaint that the fairness of the proceedings was also breached on account of the alleged arbitrariness of the dismissal of his action.

57. The applicant complained that he had no effective remedy at his disposal as regards the unfairness of the proceedings complained of. He alleged a violation of Article 13 which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

58. The Government maintained that the applicant had an effective remedy at his disposal, namely an appeal on points of law to the Supreme Court. In their view, the fact that the Supreme Court dismissed such remedy filed by the applicant cannot affect the position as Article 13 did not guarantee a right to a remedy bound to succeed.

59. The applicant disagreed and maintained that he had no effective remedy at his disposal.

60. Having regard to its above conclusion that there has been a violation of Article 6 § 1, the Court holds that it is not necessary also to examine the case under Article 13.

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

62. The applicant claimed 114,424.33 euros (EUR) plus 22% default interest on account of the financial loss due to his dismissal from a job in 1991.

63. The Government maintained that there was no causal link between the alleged breach of the applicant’s Convention rights and the pecuniary damage claimed by the applicant.

64. The Court agrees with the Government that there is no causal link between the pecuniary damage claimed and the violation found. In particular it is not for the Court to speculate what the outcome of the proceedings would have been if they had been in conformity with the requirements of Article 6 § 1 (see the Werner v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72). Accordingly, this claim must be dismissed.

65. The applicant also claimed EUR 228,848.66 plus 22% default interest by way of compensation for non-pecuniary damage. He explained that the shortcomings in the proceedings complained of had as their consequence that his reputation and dignity were diminished and that his health was damaged.

67. The Court is of the view that the applicant has failed to demonstrate that his health was affected by the conduct of the proceedings. However, it considers that the applicant suffered some non-pecuniary damage on account of the unfairness of the proceedings in his case which is not sufficiently compensated by the finding of a violation of the Convention. In the circumstances of the instant case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000.

68. The applicant sought EUR 6,865.45 for costs and expenses. He submitted that he was not in a position to substantiate this claim in writing.

69. The Government objected that the applicant’s claim was not supported by any evidence and that the amount claimed was excessive.

70. Making its assessment on an equitable basis, the Court finds it reasonable to award the applicant the amount of EUR 100 for his costs and expenses.

71. Having regard to the fact that the just satisfaction award is expressed in euros, the Court finds it appropriate to apply a rate of interest of 7.25%.

1. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the procedure followed by the national courts when examining the applicant’s action;

2. Holds that it is not necessary to examine separately the applicant’s complaint under Article 6 § 1 of the Convention that the dismissal of his action was arbitrary;

3. Holds that it is not necessary to rule on the complaint under Article 13 of the Convention;

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of costs and expenses, to be converted into Slovakian korunas at the rate applicable at the date of settlement, together with any tax that may be chargeable;

(b) that simple interest at an annual rate of 7.25% shall be payable from the expiry of the above-mentioned three months until settlement;

Done in English, and notified in writing on 4 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> KOMANICKY v. SLOVAKIA - 32106/96 [2002] ECHR 477 (4 June 2002) URL: http://www.bailii.org/eu/cases/ECHR/2002/477.html Cite as: [2002] ECHR 477