PUŠKÁROVÁ v. SLOVAKIA

 
 
 
 
THIRD SECTION
DECISION
Application no. 19356/14
Andrea PUŠKÁROVÁ
against Slovakia
 
The European Court of Human Rights (Third Section), sitting on 7 May 2019 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 28 February 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Ms Andrea Puškárová, is a Slovak national, who was born in 1977 and lives in Turzovka. She is represented before the Court by Mr M. Rojček, a lawyer practising in Žilina.
The Government of the Slovak Republic (“the Government”) are represented by their Agent, Ms M. Pirošíková.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the parties, may be summarised as follows.
3.  The applicant claimed damages in connection with a traffic accident in which she had sustained bodily injuries. The action was directed against an individual whom she considered responsible for the accident and identified his insurer as a third party supporting him. Throughout the proceedings, the applicant was represented by a lawyer.
4.  The action was granted four times by the Čadca District Court, but the first three of its judgments were quashed and the fourth one was modified by the Žilina Regional Court following appeals by the insurer.
5.  In the modifying judgment, on 16 March 2011, the Regional Court allowed a minor part of the applicant’s claim and dismissed the remainder.
It observed that the claim was uncontested in principle but contested in its quantum, in particular in so far as the applicant sought an exceptional twenty-fold increase in the amount of damages normally due under the applicable statute, referring to “particularly agonising suffering and pain” that she had sustained. On the facts, it found that the claim had been established in its ordinary scope, but not as to the extraordinary increase.
6.  On 25 March 2011 the applicant lodged an appeal on points of law to the Supreme Court, arguing that the Regional Court had applied incorrect criteria in determining her claim for an extraordinary increase of the amount of damages, that its judgment lacked proper reasoning, and that it was not convincing.
7.  As the applicant would later learn from the Supreme Court’s judgment, the insurer filed observations in reply to her appeal. No copy of these observations has been made available to the Court. Their summary in a subsequent decision of the Constitutional Court (see below) suggests that, in those observations, the insurer “disputed the applicant’s interpretation and proposed application of [the relevant legal rules], in particular in view of the expert evidence available, and her assessment of the ‘persuasiveness’ of the Regional Court’s judgment”.
8.  On 28 November 2012 the Supreme Court dismissed the applicant’s appeal on points of law, having established no errors of procedure and having concurred with the Regional Court’s legal assessment of the disputed points of substantive law. In reaching that conclusion, it took no specific account of the insurer’s observations in reply to the applicant’s appeal on points of law.
9.  On 12 March 2013 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court. She directed it against the Regional Court and the Supreme Court and, in so far as relevant, sought the quashing of their respective judgments of the 16 March 2011 and 28 November 2012. In that respect, she complained that the insurer’s observations in reply to her appeal on points of law had not been communicated to her, as a result of which she had been deprived of the possibility of responding, all this being in breach of her right to a fair hearing under Article 6 § 1 of the Convention and its constitutional equivalents.
10.  On 11 September 2013 the Constitutional Court declared the complaint inadmissible. As to the specific part of the complaint in question, it examined the submissions that the applicant and the insurer had previously made in the course of the proceedings and concluded that neither her appeal on points of law nor the insurer’s observations in reply to it contained any elements of fact or law that had not been debated by them before. For that reason, the Constitutional Court found that the non‑communication to the applicant of the impugned observations could not have resulted, “at least in terms of substance”, in a violation of her rights under the provisions invoked.
The Constitutional Court’s decision was served on the applicant on 21 October 2013 and was not amenable to appeal.
B.  Relevant domestic law and practice
11.  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 Trančíková v. Slovakia (no. 17127/12, § 23, 13 January 2015).
COMPLAINT
12.  The applicant complained under Article 6 § 1 of the Convention that the observations filed by the insurer in response to her appeal on points of law had not been communicated to her and that, as a result, she had been deprived of the possibility of reacting to them.
THE LAW
13.  The applicant alleged that the proceedings in her action had been unfair in that, contrary to her right to an adversarial trial, the Supreme Court had failed to transmit to her and thereby to enable her to react to the insurer’s observations in reply to her appeal on points of law. She relied on 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 ... hearing ... by [a] ... tribunal ...”
14.  The Government replied by arguing that the right to an adversarial trial was not absolute and that its scope could vary according to concrete circumstances of a given case. They fully endorsed the Constitutional Court’s assessment that there could not have been any genuine issue with the fairness of the applicant’s proceedings because the observations in question contained no elements other than those amply debated on in the precedent course of the proceedings.
15.  The applicant retorted by disagreeing and reiterating her complaint.
16.  The Court notes that the Government have not raised any objection under Article 35 § 3 (b) of the Convention. It is nevertheless not prevented sfrom examining the admissibility of this application under that provision by its own motion (see, for example, Magomedov and Others v. Russia, nos. 33636/09 and 9 others, § 49, 28 March 2017; with further references). The provision in question reads as follows:
“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
[...] the applicant has not suffered a significant disadvantage, unless respect for human rights as de-fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
17.  The Court notes that complaints similar to that in the present case have been examined and declared inadmissible in the past under Article 35 § 3 (b) of the Convention (see, for example, Holub v. the Czech Republic (dec.), no. 24880/05, 14 December 2010; Hanzl and Špadrna v. the Czech Republic (dec.), no. 30073/06, 15 January 2013; Kiliç and Others v. Turkey (dec.), no. 33162/10, 3 December 2013 and, recently, Pfurtscheller v. Switzerland (dec.) [Committee], nos. 13568/17 and 13583/17, 18 September 2018).
18.  In the present case it has not been disputed between the parties that the insurer’s observations in reply to the applicant’s appeal on points of law in fact were not transmitted to her, that these observations were limited to the insurer’s argumentation and that they included no new evidence.
19.  When confronted with a complaint to that effect, the Constitutional Court established that the observations in question contained no elements of fact or law that had not been debated before the ordinary courts before. The applicant herself does not contest this finding before the Court.
20.  The Court further notes that prior to the contested phase of the proceedings concerning the applicant’s appeal on points of law her action had been examined on the merits four times by courts at two levels of jurisdiction, that throughout the proceedings the applicant had been represented by a lawyer, and that there is no indication that she had in any way been restricted in the possibilities of asserting her rights in full compliance with Article 6 § 1 of the Convention (see, mutatis mutandis, Valchev and Others v. Bulgaria (dec.), no. 47450/11 and 2 others, § 78, 21 January 2014).
21.  Last but not least, once she learned of the insurer’s contested observations, it was open to the applicant to ask for their copy and to substantiate her complaint of unfairness of the proceedings with references to the contents of those observations. However, there is no indication that she has done so and her complaint, both before the Constitutional Court and before this Court, has only been purely abstract.
22.  In these circumstances, even assuming that Article 6 § 1 of the Convention was applicable (see Valchev and Others, cited above, §§ 68-73; and Hansen v. Norway, no. 15319/09, §§ 55-56, 2 October 2014) and that the non-communication of the bank’s observations to the applicant raises an issue of fairness of the proceedings under that provision, it may not be seen as having caused any significant disadvantage to the applicant in terms of Article 35 § 3 (b) of the Convention.
23.  It must next be ascertained whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits. In the assessment of this “safeguard clause” the Court takes into account, in particular, the developments in domestic law and practice and whether the legal problem in question has already been sufficiently addressed in its case-law (see, for example, Hanzl and Špadrna, cited above, and Kiliç and Others, cited above, § 26).
24.  With regard to Slovakia, the problem of non-communication of observations of another party to judicial proceedings to the applicant has been identified in relation to the proceedings before a court of appeal (see Trančíková, cited above, §§ 37-49), a court of cassation (see Hudáková and Others v. Slovakia, no. 23083/05, §§ 25-32, 27 April 2010), as well as the Constitutional Court (see Čičmanec v. Slovakia, no. 65302/11, §§ 59-65, 28 June 2016). The implementation of the Court’s judgments in these cases was concluded by resolutions of the Committee of Ministers of the Council of Europe no. CM/ResDH(2016)18 of 24 February 2016, no. CM/ResDH(2012)57 of 27 July 2010 and no. CM/ResDH(2017)371 of 25 October 2017. The general measures adopted by the respondent State in the course of the implementation of these judgments involved their translation, publishing and dissemination and, as appropriate, changes in the relevant domestic judicial practice.
25.  In these circumstances, and given that the Court has already had several opportunities to rule on the issue raised in this case, it cannot be argued that the application raises serious questions of application or interpretation of the Convention, or important questions of national law.
Respect for human rights as defined in the Convention and the Protocols thereto therefore cannot be said to require an examination of the application on the merits.
26.  Finally, the Court must ensure that the case has been “duly considered by a domestic tribunal”, the term “case” referring to the applicant’s action, claim or request that was submitted to the domestic courts, rather than his or her “application” or “complaint” as later submitted to the Court. It is the “case” understood in that way that has to be “duly considered by a domestic tribunal” for the purposes of Article 35 § 3 (b) of the Convention (see, for example, Liga Portuguesa de Futebol Profissional v. Portugal (dec.), no. 49639/09, 3 April 2012).
27.  That being so, as the Court has already noted above, the applicant’s claim for damages was examined four times by the ordinary courts at two levels of jurisdiction. In addition, her arguments on points of law were examined by the cassation court and her constitutional complaint, including the issue of the non-transmission of the insurer’s observations to her, was examined by the Constitutional Court.
In these circumstances, the Court finds that the applicant’s case has been duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b) of the Convention.
28.  All three conditions of the relevant inadmissibility criterion having been satisfied, the Court finds that the application must be declared inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 May 2019.
Stephen PhillipsDmitry Dedov
RegistrarPresident
 

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