ECHR • Perez v. Monaco, 5 October 2023, no. 60104/21. Application inadmissible

ECHR • Access to a court • Right to a fair trial • Equality of arms • Reasonable time • Employment law • Civil procedure Monaco

ECHR, Court (Fifth Section Committee), Perez v. Monaco, 5 October 2023, Application No 60104/21 (French) Inadmissibility of the application - Failure to exhaust domestic remedies - No apparent violation of the right to a fair trial and the right of access to a court

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SUMMARY

The application concerned the fairness of civil proceedings from the perspective of Articles 6 § 1 (right to a fair trial) and 13 (right to an effective remedy) of the European Convention on Human Rights. The applicant's main complaint was the length of the proceedings, which she considered excessive, and the Monegasque courts' refusal to order the disclosure of documents held by her employer and third parties that she considered decisive for the outcome of her case.

The European Court of Human Rights (ECHR) declared the application inadmissible, rejecting the complaints on the grounds of non-exhaustion of Monegasque remedies (article 4 bis of the Civil Code) under Article 35 §§ 1 and 4 of the Convention, and considering them manifestly ill-founded and dismissing them under Article 35 §§ 3 and 4 of the Convention, as the refusal to order disclosure of documents appeared neither arbitrary nor unreasonable.

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IN DETAIL

The facts

The applicant, who had been dismissed from her position as managing director of a S.A.M. (monegasque public limited company), brought an action before the Court of First Instance seeking an order that the company pay her various sums in respect of the balance of her allowances, reimbursement of travel and accommodation expenses and various commissions, retrocessions and damages for undue resistance. By judgment of 21 December 2017, the applicant obtained an order against the company to pay her travel and accommodation expenses incurred in connection with her incorporation, but her other claims were dismissed.

At the same time, the claimant applied to the President of the Court of First Instance for the appointment of a state bailiff to visit the premises of five organisations in order to obtain the production of various documents. The application was rejected on 30 March 2018 on the grounds that the case was already before the court hearing the main action and that the principle of fair hearing and the requirements of a fair trial precluded the initiation of non-adversarial proceedings. The Court of Appeal confirmed this decision on 4 June 2018, on the same grounds and considering that the request for the production of documents did not appear to be sufficiently precise and relevant to the determination of the truth.

In the proceedings on the merits, the Court of Appeal, in an interlocutory ruling of 22 January 2019, dismissed the claimant's objection to disclosure of documents and, in a ruling on the merits of 29 September 2020, rejected her claim for reimbursement of the travel and accommodation expenses incurred in preparing her case and of the professional expenses claimed, holding that the documents produced by the claimant in support of her claims for additional remuneration were not sufficiently conclusive, and dismissed the parties' claims for damages for undue procedure and resistance.

In its judgment of 16 June 2021, the Court of Revision ruled that the preliminary ruling of 22 January 2019 was legally justified, since the Court of Appeal had been able to establish with sovereignty that the requirements that the documents be useful and that the rights of third parties not be prejudiced had not been met. Similarly, with regard to the judgment on the merits of 29 September 2020, the Court of Revision concluded that the Court of Appeal had legally justified its decision without violating Article 6 of the European Convention on Human Rights.

The decision of the European Court of Human Rights

Complaint of excessive length of civil proceedings dismissed for failure to exhaust Monegasque remedies

The Court found "that article 4 bis of the Monegasque Civil Code expressly provides for an action for liability on the part of the public authorities for the defective operation of justice, in particular in the event of excessive length of civil proceedings (...)", and that the applicant, having "referred the matter to the Court without having first exercised that remedy, had not exhausted domestic remedies in respect of her complaint regarding the length of the proceedings at issue".

Complaint that domestic courts refused to order disclosure of documents rejected as manifestly ill-founded

The Court did not "find, on the basis of the evidence before it, any appearance of a breach of the right to a fair hearing and the right of access to a court".

As regards the compulsory procedure, the Court found that the Monegasque courts' refusal appeared to be "neither arbitrary nor unreasonable", and was motivated "by the need to respect the principle of fairness in the proceedings vis-à-vis the defendant and by the insufficiently precise, relevant and therefore sufficiently limited nature of its requests for the production of documents".

As regards the proceedings on the merits, the Court also found "that the applicant had the benefit of an adversarial hearing, that she had been able to express herself freely on the alleged relevance of the documents requested, but that she had not sufficiently justified and identified her requests for disclosure of documents". It emphasised "that the interpretation made by the domestic courts as to the admissibility of the rules of evidence cannot be regarded as arbitrary, unreasonable or liable to prejudice the fairness of the proceedings, and that it is simply a matter of applying the procedural rules laid down in domestic law", and "that the Court of Revision subsequently reviewed the reasons given for the proportionality of the refusal to order disclosure".

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