THIRD SECTION

CASE OF PALUDA v. SLOVAKIA

(Application no. 33392/12)

JUDGMENT

STRASBOURG

23 May 2017

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

In the case of Paluda v. Slovakia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Branko Lubarda, President,
	Helena Jäderblom,
	Luis López Guerra,
	Helen Keller,
	Dmitry Dedov,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 2 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33392/12) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Peter Paluda (“the applicant”), on 24 May 2012.
2.  The applicant was represented by Mr P. Svitok, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3.  Alena Poláčková, the judge elected in respect of Slovakia, withdrew from sitting in the Chamber (Rule 28 of the Rules of Court). Helena Jäderblom, the judge elected in respect of Sweden, was appointed to sit in her place (Article 26 § 4 of the Convention and Rule 29).
4.  The applicant alleged, in particular, that his right to a fair hearing by a tribunal under Article 6 § 1 of the Convention had been breached as a result of the domestic courts’ refusal to examine his action concerning the decision to suspend him in the exercise of his office as a judge.
5.  On 17 April 2014 the above-mentioned complaint was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1959 and lives in Bratislava. He is and at the relevant time was a Supreme Court judge.
A.  Disciplinary charges and the applicant’s suspension
7.  The Judicial Council of the Slovak Republic is the supreme governing body of the judiciary in Slovakia. It has eighteen members, including its President (section 3(1) of the Judicial Council Act (Law no. 185/2002 Coll., as amended)). Under Article 141a of the Constitution (Law no. 460/1992 Coll.), as applicable at the relevant time, the President of the Supreme Court automatically held the office of the President of the Judicial Council. Of the remaining seventeen members, eight were elected by judges and three were appointed by each the National Council of Slovakia, the President of Slovakia, and the Government of Slovakia.
8.  On 8 September 2009, sitting it the above mentioned composition, the Judicial Council decided under section 22(1) and (2) of the Judges and Assessor Judges Act (Law no. 385/2000 Coll., as amended – “the Act”) to suspend (dočasné pozastavenie výkonu funkcie sudcu) the applicant in the exercise of his function with immediate effect. This decision followed another decision of the Judicial Council taken on the same day under section 120(2)(c) of the Act to file disciplinary charges against the applicant.
9.  The accusation was that the applicant had committed what was classified as a “serious disciplinary offence” by failing to comply with his duties, such as abstaining from behaviour which might cast doubt on the respectability of his judicial office, abiding by the principles of judicial ethics and enhancing the good reputation of the judiciary.
In particular, reference was made to the fact that the applicant (i) had filed a criminal complaint accusing the President of the Supreme Court of abuse of authority, and (ii) had publicly stated that the distribution of cases at the Supreme Court had been modified with a view to allowing its President to influence the outcome of proceedings.
In terms of a sanction, the Judicial Council proposed that the applicant’s post as a judge be revoked.
10.  Under section 22(7) of the Act, the decision to suspend him entailed a 50% reduction in the applicant’s salary for the duration of the disciplinary proceedings. The same provision prevented him from spending time at the workplace, with the exception of time which was necessary for asserting his rights in relation to the administration of human resources. Under section 22(5) of the Act, the suspension could last at most two years. The withheld part of the applicant’s salary might or might not be restored to him, depending on the outcome of the disciplinary proceedings (section 22(8) and (9) of the Act).
B.  Challenge to the suspension
11.  The applicant sought protection of his rights in relation to the decision to suspend him as a judge by way of what he termed an appeal (rozklad) to the Judicial Council of 29 October 2009, an administrative-law action of the same day, and a constitutional complaint of 2 November 2009.
12.  On 25 November 2009 the Constitutional Court declared the complaint inadmissible. It noted that the applicant’s applications before the Judicial Council and administrative tribunals were still pending and considered that, under the principle of subsidiarity, his constitutional complaint was accordingly premature.
13.  As to the applicant’s submission to the Judicial Council, its president responded to it in a letter of 27 January 2010 informing the applicant that the law did not allow for decisions of the Council to be challenged by means of appeals to the Council and that its decisions were reviewable by administrative tribunals.
14.  On 13 May 2010 the Bratislava Regional Court discontinued the proceedings on the applicant’s administrative-law action and on 23 February 2011 the Supreme Court upheld that decision following an appeal lodged by the applicant.
The courts found that the decision to suspend the applicant had been of a preliminary nature, that it had not amounted to a determination of his rights with final effect, and that as such it had no bearing on his fundamental rights and freedoms. In such circumstances, the decision was excluded from judicial review under Article 248 (a) of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time).
15.  On 17 June 2011 the applicant lodged a fresh complaint with the Constitutional Court, alleging a breach of Article 6 § 1 of the Convention on account of the ordinary courts’ decisions, as detailed above.
16.  On 7 December 2011 the Constitutional Court declared the applicant’s complaint of 17 June 2011 inadmissible as being manifestly ill‑founded. It held that the Supreme Court had given sound reasons for its decision, and its decision was not arbitrary or otherwise contrary to the applicant’s right to a fair hearing.
17.  According to a communication from the Judicial Council dated 6 August 2016, submitted and relied on by the Government, the applicant had addressed various submissions to the Council, but had never requested it to lift his temporary suspension, pursuant to section 22(5) of the Act (as applicable at the relevant time – see paragraph 24 below).
C.  Disciplinary proceedings
18.  The disciplinary charges against the applicant fell to be determined by the Supreme Court, sitting as a disciplinary tribunal.
19.  In accordance with a legislative amendment which took effect on 1 May 2011, the Minister of Justice became a party to pending disciplinary proceedings against judges which had been initiated by the Judicial Council.
20.  On 9 May 2011 the Minister of Justice withdrew the application to discipline the applicant.
21.  On that ground the Supreme Court discontinued the disciplinary proceedings against the applicant on 13 May 2011. The applicant challenged that decision by way of an appeal, only to withdraw it on 11 August 2007. The decision thus became final on 27 September 2011.
22.  The part of the applicant’s salary that was retained from him during the time of his suspension (see paragraph 10 above) was restored to him in July 2012.
II.  RELEVANT DOMESTIC LAW
A.  Code of Civil Procedure
23.  Part (Časť) 5 governs the administrative judiciary. Chapter (Hlava) 2 of this Part lays down the rules for a review of the lawfulness of decisions taken by administrative authorities on the basis of administrative-law actions. Within that chapter, Article 248 defines situations in which administrative tribunals have no jurisdiction to review administrative decisions on the basis of administrative-law actions. Pursuant to its sub‑section (a), as applicable at the relevant time, administrative tribunals had no jurisdiction to review:
“decisions by administrative authorities which are of a preliminary nature or govern the procedure.”
B.  Judges and Assessor Judges Act
24.  Under section 22(5), as applicable at the relevant time:
“The Judicial Council shall have the power to quash its own decision temporarily to suspend a judge upon an application being lodged by the judge concerned. It shall decide on such an application within sixty days of the day on which it receives it. It shall be duty bound to decide upon a repeated application ... always four months at the most after the decision not to allow the previous application ....”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
25.  The applicant complained that he had been denied access to court in relation to an order suspending him in the exercise of his mandate as a judge pending the outcome of disciplinary proceedings against him. In that respect, he alleged a violation of his rights under Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
1.  Parties’ arguments
26.  The Government contested the compatibility ratione materiae of the complaint with the provisions of the Convention. In that respect, they relied on the conclusions of the domestic courts in relation to the applicant’s administrative-law action and emphasised that the challenged measure to suspend him was a temporary protective measure concerning the relationship between the applicant and the State. It did not constitute a decision on the merits of his civil rights and obligations, was not a sanction, and had had the aim of safeguarding the integrity of the exercise of the judicial power. In addition, the Government objected that the applicant had failed to seek the lifting of the suspension under section 22(5) of the Act and concluded that the present case fell short of the requirements for the applicability of the guarantees under Article 6 § 1 of the Convention, as established in the Court’s case-law.
27.  The applicant disagreed and submitted that the disciplinary proceedings underlying his suspension were not related to any action undertaken or omission made in the course of his judicial activity but rather had been instituted on account of his exercise of his freedom of expression. In addition, he argued that the actions ascribed to him had not been capable of attracting the penalty of removal from office and that, consequently, the disciplinary charges against him could not serve as a basis for his suspension. The applicant further submitted that, during the period of his suspension, not only had a part of his salary had been withheld from him and he had been unable to exercise his judicial mandate, but at the same time he had continued to be subject to restrictions applicable to judges, such as not being able to conduct business, engage in political activities, or be gainfully employed. He contended that the disciplinary proceedings themselves had been lengthy, which had amplified the repercussions of the suspension for him, and that the withheld part of his salary had only been restored to him in July 2012, even though the disciplinary proceedings themselves had effectively already been terminated in September 2011.
28.  In a further reply, the Government argued that the applicant’s complaints in relation to the disciplinary proceedings as such were outside the scope of the application and submitted that, in so far as the applicant might be understood as complaining that the withheld part of his salary had been restored to him too late, he could have asserted his rights at the domestic level, but had chosen not to do so.
2.  The Court’s assessment
29.  The Court observes that the applicant in the present case, who is a judge, faced disciplinary charges and that in the course of the disciplinary proceedings against him he was suspended in the exercise of his judicial function.
30.  As to the scope of the case, the Court considers it appropriate to point out at the outset that it concerns a temporary suspension of the applicant and not a termination of his mandate (see, a contrario, for example, Baka v. Hungary [GC], no. 20261/12, § 88, ECHR 2016) or the underlying proceedings in respect of the disciplinary charges against him (see, a contrario, for example, Harabin v. Slovakia, no. 58688/11, § 113, 20 November 2012). In addition, in relation to that suspension, the applicant’s complaint is limited to the specific issue of his access to court under Article 6 § 1 of the Convention. In other words, it is not concerned with other aspects of the applicant’s rights under that article and neither is it concerned with any other of those of his rights and freedoms that are protected under other provisions of the Convention and its Protocols.
31.  The Government have contested the applicability of the said guarantee the applicant’s complaint.
32.  In that respect, the Court considers that the Government’s objection in fact raises interlinked issues of applicability of the Article 6 guarantees, including those of access to court, to the main proceedings on the merits of the disciplinary charges against the applicant and to the applicant’s temporary suspension.
33.  As to the main proceedings, the issue of applicability is to be determined under the general criteria established by the Court in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007-II), as applied in cases concerning specifically judges (see a summary in Baka [GC], cited above, §§ 105-106). Noting that the applicant’s suspension was a temporary measure taken within the context of the proceedings on the merits of the disciplinary charges against him, the Court considers that the applicability of the said guarantees to his suspension is to be viewed also under the criteria established by the Court in the case of Micallef v. Malta ([GC], no. 17056/06, § 87, ECHR 2009). Moreover, in terms of applicability, the Court reiterates that the Eskelinen criteria are pertinent to cases concerning the right of access to a court, just as much as they are for cases concerning the other guarantees embodied in this provision (see Baka [GC], cited above, § 106).
34.  Within this framework, the Court is prepared to accept that the guarantees under Article 6 § 1 applied to the main proceedings on the disciplinary charges against the applicant (see, in particular, Harabin, cited above, § 123) and that the applicant’s suspension constituted a determination of the same civil rights and obligations in terms of the Court’s case-law. The access-to-court guarantee therefore applies to the suspension itself. The Government’s objection must accordingly be dismissed.
35.  The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
36.  The parties have not made any separate observations other than those summarised above.
37.  The Court notes that the applicant sought to challenge his suspension by way of (i) what he termed an appeal to the Judicial Council, (ii) an administrative-law action, and (iii) two constitutional complaints. As the Judicial Council and administrative tribunals concluded, no such appeal was available and the matter was excluded from judicial review, in respect of which the Constitutional Court provided the applicant with no remedy.
38.  In so far as the Government have suggested that the applicant could have sought – but did not seek – the lifting of the suspension by the Judicial Council under section 22(5) of the Act, the Court notes the composition of that body, one half of the members of which was directly appointed by the legislative and executive power (see paragraph 7 above). It further notes that it has neither been argued by the Government nor established otherwise that the proceedings before that body were of a judicial character or that the applicant had access to any other procedure of that character with a view to asserting his civil rights and obligations in relation to his suspension.
39.  In these circumstances, the Court accepts that the applicant has effectively been unable to have the benefit of judicial protection in relation to his suspension.
40.  Since the guarantee of access to court in relation to the applicant’s suspension applied and since he has not had such an access, it remains to be ascertained whether this state of affairs amounted to a violation of the applicant’s rights under Article 6 § 1 of the Convention.
41.  In that regard, the Court reiterates that the right of access to court is not absolute. Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. If the restriction is compatible with these principles, no violation of Article 6 will arise (see, for example, Z and Others v. the United Kingdom [GC], no. 29392/95, § 92, ECHR 2001-V, with further references and, more recently, Baka [GC], cited above, § 120).
42.  Turning again to the facts of the present case, the Court observes, first of all, that the administrative courts at two levels unanimously concluded (and their conclusions were ultimately endorsed by the Constitutional Court) that by virtue of Article 248 (a) of the Code of Civil Procedure the decision to suspend the applicant was excluded from judicial review. It is accordingly prepared to accept that it was lawful in terms of domestic law.
43.  As to the legal basis for the exclusion of the applicant’s suspension from judicial review, the Court also notes that it existed prior to the suspension and that it stemmed from an instrument of general application (by contrast see Baka [GC], cited above, §§ 116 and 117, with further references).
44.  As to the legitimacy of the aim pursued by the contested restriction, the Court notes that it was based on a provision of general application (Article 248 (a) of the Code of Civil Procedure) excluding from judicial review any decision of an administrative authority which was of a preliminary nature. In other words, it made no allowance for the taking into account of the particular aspect of the measure lying at the heart of the present application, this being the suspension of a judge in the exercise of his judicial mandate.
45.  The Court notes the growing importance which international and Council of Europe instruments, as well as the case‑law of international courts and the practice of other international bodies are attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge (see Baka [GC], cited above, § 121).
46.  In the absence of any arguments by the Government to the contrary, the Court finds that the legitimacy of the aim pursued by denying the applicant access to court in relation to his suspension is open to question. However, it is of the view that a definitive answer to that question is not necessary, as the applicant’s right of access to court in the present case was in any event violated on the grounds laid out below.
47.  Moving on to the test of proportionality, the Court observes that the applicant’s lack of access to court concerned a measure imposed on him by a body that, as has been found above, did not provide the institutional and procedural guarantees inherent in Article 6 § 1 of the Convention.
48.  At the institutional level, the Court further notes that the body in question, the Judicial Council, was at the relevant time by law presided over by the President of the Supreme Court (see paragraph 6 above). Given the facts of the present case, this is of particular relevance in that the applicant’s suspension was imposed on him by the Judicial Council within the context of disciplinary proceedings instituted against him by the same body in connection with his criminal complaint and public statements concerning the exercise by the President of the Supreme Court of his duties (see paragraph 8 above).
49.  From the procedural point of view, the Court observes that, in connection with his suspension, the applicant was heard neither in respect of the suspension nor the underlying disciplinary charges.
50.  Furthermore, although the suspension itself does not constitute the subject of the present complaint, the Court considers its repercussions on the applicant relevant to the assessment of the proportionality of the absence of access to court in relation to that suspension. From that perspective, the Court notes that the suspension entailed the applicant’s disqualification from the exercise of his office and the withholding of 50% of his salary (see paragraph 10 above), while at the same time he continued to be subject to restrictions such as not being able to engage in gainful activity elsewhere (see paragraph 27 above).
51.  While the restoring of the withheld part of his salary is of importance in relation to redressing the effects of the suspension on the applicant, as such it has no direct connection with the fact that he had no access to court in relation to it. As regards the lack of access to court, there do not appear to have been any additional corrective or remedial measures taken at the time of the suspension or thereafter.
52.  As to the duration of the applicant’s inability to challenge his suspension, the Court observes that it could last as long as the suspension did itself. Thus, by law, it could last for as long as two years. In the absence of any indication to the contrary, it is assumed that it did indeed last for two years (given that the disciplinary proceedings themselves lasted two years and nineteen days (from 8 September 2009 until 27 September 2011)).
53.  In sum, the applicant had no access to proceedings before a tribunal within the meaning of Article 6 § 1 of the Convention in relation to a measure that placed him for two years in the situation of being unable to exercise his mandate and having one half of his salary withheld, while at the same time being unable to exercise other gainful activity.
54.  Moreover, the Court notes that the Government have not invoked and nor has it established otherwise any conclusive reason for denying the applicant judicial protection in respect of that measure. In this regard, the Court considers it important to draw a clear distinction between the arguably compelling reasons for suspending a judge facing a certain type of disciplinary charge and the reasons for not allowing him or her access to a tribunal in respect of that suspension. In the Court’s view, the importance of this distinction is amplified by the fact that the body taking that measure and the procedure in the course of which it was taken fell short of the requirements of Article 6 § 1 of the Convention and the fact that the measure was taken within as particular a context as that pertaining to the present case.
55.  In view of the foregoing considerations, the Court concludes that the applicant’s lack of access to court could not have been proportionate to any legitimate aim that it pursued and that, accordingly, the very essence of that right was impaired (see Baka [GC], cited above, § 121).
There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
56.  Article 41 of the Convention provides:
“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.”
A.  Damage
57.  The applicant claimed 88,789 euros (EUR) in respect of pecuniary damage. This amount consisted of various allowances, a prospective salary increase and a bonus, all of which the applicant claimed to have been deprived of as a result of his suspension. Moreover, he claimed EUR 50,000 in respect of non-pecuniary damage, referring to the repercussions on him of the disciplinary proceedings against him and statements of the then President of the Supreme Court about him.
58.  The Government contested both claims, principally on the grounds that they were unrelated to the subject of the present proceedings.
59.  The Court points out first of all that any award in this case may only be based on the finding of a violation of the applicant’s right of access to a court. In contrast to that, the applicant’s claim in respect of pecuniary damage appears clearly to be based on the underlying suspension of the applicant from his duties, rather than the violation (as found by this Court) of his Convention rights. Accordingly, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim.
On the other hand, given the particular circumstances of the present case the Court is satisfied that the applicant’s claim in respect of non‑pecuniary damage has a sufficient link to the violation found and that the applicant must have sustained damage of that nature. Accordingly, ruling on equitable basis, it awards him EUR 7,800, plus any tax that may be chargeable, in respect of non‑pecuniary damage.
B.  Costs and expenses
60.  The applicant submitted that his lawyer would make a claim in respect of costs and expenses if his complaint was successful on the merits.
61.  The Government contended that no claim under this head had been made within the applicable time-limit.
62.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The applicant has failed to prove that he incurred any such expenditure. Accordingly, there is no call for any award under this head.
C.  Default interest
63.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President