MIHAL v. SLOVAKIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Ján Mihal, is a Slovak national, who was born in 1956 and lives in Pezinok. He was represented before the Court by Černejová & Hrbek, s.r.o., a law firm with its registered office in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a judge. At the relevant time he was on the criminal law bench of the Supreme Court. 5. On 2 July and 21 August 2009 the President of the Supreme Court filed two separate disciplinary charges against the applicant. 6. The applicant was accused of having negligently failed to take a decision within the prescribed time-limit which had ultimately led to the release from detention on remand of a defendant who was in the process of appealing against a previous first-instance life sentence given in a criminal case. In addition, the applicant was accused of having caused unjustified delays in two other sets of proceedings. 7. These offences were classified as “serious disciplinary offences” and the penalty of removal from judicial office was proposed. 8. Meanwhile, on 14 July 2009, the Judicial Council, which is the supreme governing body of the judiciary in Slovakia, suspended the applicant from office pending the outcome of the disciplinary proceedings. 9. The applicant’s charges fell to be determined at first instance by the Supreme Court, sitting as a disciplinary tribunal (“the first-instance tribunal”). 10. The first-instance tribunal set hearings for 6 October, 3 November, and 8 December 2010, but none of them took place because it had proven impossible to have the summons served on the applicant. 11. The summons had to be served on the applicant in person. As the summonses had repeatedly not reached him by post at home, they were deposited at the local post office and a notice to that effect was left in the applicant’s post box. However, the summonses were never collected. 12. In response, the first-instance tribunal asked that the summonses be served on the applicant by the police, by the District Court within the jurisdiction of which the applicant resided, and by the applicant’s mother. According to the police and the District Court, the applicant was not staying at his home address and their attempts to reach him had been futile. 13. In the applicant’s submission, his suspension from office led to disruption of his family life, as a result of which he was not staying at his home address but at his mother’s. 14. On 8 December 2010 the first-instance tribunal again requested that the summons for the hearing then scheduled for 26 January 2011 be served on the applicant by the police and that the police bring him to that hearing. This summons was eventually served on the applicant. 15. Meanwhile, the applicant in person (1 December 2010) and through the intermediary of his defence counsel (21 December 2010) filed written observations in reply. 16. The first-instance tribunal eventually heard the case on 26 January, 23 February and 6 April 2011. The applicant and his counsel both attended all of these hearings. The tribunal allowed them to make oral submissions and heard evidence from a representative of the complainant and two Supreme Court judges as witnesses. In addition, it examined extensive documentary evidence. 17. The applicant offered the following in his defence. The missed time limit had been subject to newly adopted rules. The interpretation of those rules had been unclear and the applicant had been consulting other Supreme Court judges in that respect. He had thus been engaged in a legitimate process of analysing the applicable rules, had ultimately concluded that the given time-limit applied but, as by that time it had already expired, the defendant had had to be released. In the applicant’s view, he was not guilty of negligence and, in addition, his workload at that time had been unmanageable. 18. Following the hearing of 6 April 2011, on the same day, the first instance tribunal found the applicant guilty as charged and ordered his transfer to a lower-instance court. It did so having dismissed his arguments and having considered that removal from office, as demanded by the complainant, was too harsh a sanction in the circumstances. 19. On 12 June 2011 the applicant appealed against the above decision and on 14 June 2011 his counsel added reasons to his appeal. The complainant subsequently filed observations in reply and the applicant submitted further written comments. 20. In sum, he argued that the first-instance tribunal had had no power to try him because its three-year mandate had expired before its decision; that the tribunal had not been impartial because it had favoured the complainant; that the complainant had systematically breached his presumption of innocence with the aim of removing him from his position as a judge; that the tribunal had erred on facts and law, and had been selective in its choice of which evidence to accept (rejecting the applicant’s proposals for evidence to be given by certain witnesses); and that it had failed to support its decision with adequate reasoning. 21. The appeal fell to be examined by another Chamber of the Supreme Court, sitting as a disciplinary tribunal of appeal (“the appeal tribunal”). 22. On 3 September 2011 the appeal tribunal scheduled a hearing for 12 October 2011. 23. On 7 September 2011 the applicant informed the appeal tribunal that he was unable to appear because he was on sick leave. He submitted a general practitioner’s certificate of 6 September 2011 to that effect, stated that he wished to attend the hearing in person, and requested that the hearing be postponed. In the certificate, the applicant’s doctor had indicated his diagnosis as “M54” and authorised him to go for a walk daily between 10 a.m. and noon and between 3 and 5 p.m. 24. On 12 September 2011 a new date was set for the hearing – 17 October 2011. As for the applicant, the appeal tribunal had the summons sent to him and his lawyer. At the same time, the appeal tribunal asked the applicant’s doctor in writing to indicate the expected period of his incapacity for work and to specify whether he would be able to attend the scheduled hearing. The doctor was further asked to authorise the applicant to leave his place of residence on 17 October 2011 for the purposes of attending the hearing, health permitting. 25. The summons was served on the applicant’s lawyer on 16 September 2011 but it twice proved impossible to have it served on the applicant in circumstances similar to those described above. 26. On 6 October 2011 the presiding judge contacted the doctor by telephone with a view to establishing whether the applicant would be able to attend the hearing. 27. In a written reply dated 3 October 2011 the doctor 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 had not yet arrived. Lastly, the letter indicated that the applicant was being treated with medication with analgesic-spasmolytic side effects which could affect his ability to concentrate. 28. On 14 October 2011 the applicant’s counsel informed the appeal tribunal, without offering anything in support of such claims, that the applicant was still on sick leave and that his condition would not allow him to appear at the forthcoming hearing. He added that the applicant considered his presence necessary, submitted that “they” apologised for “their” absence, requested that the hearing be postponed, and pledged that “they” would inform the tribunal once the applicant’s condition had improved. 29. The appeal tribunal heard the case as scheduled on 17 October 2011 without the applicant or his counsel present. The complainant’s representative was present but submitted that, in the applicant’s absence, he had no comment to make in respect of the applicant’s appeal other than to refer to the complainant’s previous written submissions. 30. Following the hearing of 17 October 2011, on the same day the appeal tribunal quashed the first-instance decision and found the applicant guilty on charges relating to the missing of the detention-related deadline and the unjustified delays in one set of proceedings; it acquitted him of the remaining charge. The appeal tribunal imposed a sanction on him, which was identical to that imposed previously by the first-instance decision, that is to say transfer to a lower court. 31. The appeal tribunal observed that the judges of the first-instance tribunal had been appointed for three years and that this term had expired before its decision in the applicant’s case. However, under the applicable statute, the tribunal had had to bring to a conclusion any proceedings that had commenced before it irrespective of the three-year period. Moreover, it considered that the first-instance tribunal had adequately established the facts and that no new evidence was called for. Nevertheless, it was true that the first-instance decision had lacked proper reasoning. Therefore, the appeal tribunal provided comprehensive reasoning of its own for the conviction in its decision. Among other things, it noted that there had been no official record of the applicant having conferred with his colleagues over any question of law that he might have considered controversial. In the circumstances, and in particular in a matter as sensitive as the detention of a notorious criminal defendant, the applicant’s inactivity could not be accepted as being an expression of legitimate judicial activity but rather manifested signs of arbitrariness. 32. As regards hearing the applicant’s appeal in his absence, the appeal tribunal considered that his and his lawyer’s refusal to attend had been “another part of the former’s efforts to obstruct and delay the proceedings”. In that connection, the appeal tribunal referred in detail to the difficulties in having the summons served on the applicant both at the first instance stage and on appeal. It observed that the applicant had been on sick leave, which presupposed that he should normally have been at home. It also noted that the applicant had been authorised to leave home for four hours a day, which should have given him ample opportunities to collect his post from the post office. In addition, the appeal court noted that the applicant’s doctor had avoided a direct response to the question concerning whether the applicant’s condition had been such as to prevent him from participating at the hearing. At the same time, it noted that there was no doubt that the summons had been properly served on the applicant’s counsel who himself had not provided any reason why he had not been able to appear at the hearing. In such circumstances, the appeal tribunal considered that the applicant’s sick leave had not been an adequate reason for adjourning the hearing and that it had been justified to have held it in his absence. 33. On 2 December 2011 the applicant lodged a complaint with the Constitutional Court. He alleged a breach of Article 6 § 1 of the Convention in that the appeal tribunal had determined the case in his absence, notwithstanding the fact that he and his lawyer had duly apologised. 34. On 14 December 2011 the Constitutional Court declared the complaint admissible; on 18 April 2012 it found that there had been no violation of the applicant’s rights under Article 6 § 1 of the Convention and its constitutional equivalents. 35. 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 the 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 in his comments on the complainant’s observations in reply to his appeal; (v) the applicant had been partly successful in his appeal; (vi) the appeal tribunal had accepted the applicant’s first request for the hearing of his appeal to be adjourned; and (vii) 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 had not been arbitrary. 36. The disciplinary decisions concerning the applicant have been implemented and he is now in active service at a court of appeal.