FIFTH SECTION
CASE OF PERUŠ
v. SLOVENIA
(Application no.
35016/05)
JUDGMENT
STRASBOURG
27 September 2012
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 Peruš v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
Julia Laffranque, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
35016/05) against the Republic of Slovenia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Slovenian national, Mr Norbert Peruš (“the
applicant”), on 15 September 2005.
The applicant was represented by Mr B. Kukec, a
lawyer practising in Lenart, and, after his demise, by Mr. A. Tušek, a lawyer
practicing in Lenart v Slovenskih Goricah. The Slovenian Government (“the
Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State
Attorney.
The applicant alleged, in particular, that one of
the judges involved in the proceedings concerning his appeal on points of law
could not be considered impartial owing to his prior involvement in the case as
a judge of the Higher Court.
On 14 January 2011 the application was
communicated to the Government.
The composition of the Fifth Section sitting on 4
September 2012 was modified in accordance with Rule 25 § 4 of the Rules of
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1940 and lives in Slovenska
Bistrica.
A. Proceedings concerning the labour dispute
The case originated in a labour dispute following
the applicant’s transfer to a different post within a company providing
electro-installation (hereinafter referred to as “the company”). Subsequently,
the applicant lodged several claims with the Maribor Labour Court requesting, inter
alia, the annulment of the transfer decision, and payment of the difference
in salary.
On 16 April 1993 the first-instance court gave a
decision upholding the applicant’s claims. The company appealed. On 16 December
1993 the second-instance court upheld the company’s appeal and remitted the
case for fresh examination.
On 16 February 1994 the Maribor Labour Court issued
a decision whereby it upheld the applicant’s claims and annulled the transfer decision.
It found that the transfer was related to the applicant’s involvement in trade
union activities and his efforts to improve human relations in the company. The
company, in the court’s view, had failed to demonstrate that there were
work-related needs which called for a transfer. The court adjudicated that the
applicant should be paid the difference in salary. The company appealed.
On 18 October 1994 the Ljubljana Higher Labour Court upheld the appeal. The three-judge panel, presided over by judge
L.F., found that the first-instance court had failed to provide adequate
reasoning in its decision; in particular, it had failed to explore whether
lawful grounds for the transfer existed, such as an increased need for
resources with respect to the applicant’s new post. In the Higher Court’s view,
the lower court should examine the director and the chief of commerce as
witnesses. The case was remitted for fresh examination.
On 25 April 1995 the Maribor Labour Court stayed
the proceedings since bankruptcy proceedings had been instituted against the
company.
Subsequently, the court repeatedly requested the
applicant to inform it of the progress of the proceedings relating to the
company’s bankruptcy and to specify whether he still had an interest in pursing
the proceedings in his case. The applicant supplied the required information
concerning the outcome of the bankruptcy proceedings on 18 January 1999, and
requested that the proceedings in his case be continued.
On 5 March 1999 the court resumed the
proceedings in so far as they concerned the allegedly unlawful transfer to
another post and loss of salary, and dismissed the remaining claims. The
applicant lodged an appeal and an appeal on points of law. Both were rejected.
On 18 February 2002 the Maribor Labour Court,
after holding four hearings and examining witnesses, issued a judgment dismissing
the applicant’s claims. It found that the applicant’s transfer to a different
post within the company had been lawfully based on the company’s need to adapt
to changes in the market, and that he was therefore not entitled to any
compensation. The applicant appealed.
On 29 August 2002 the Ljubljana Higher Labour
Court rejected the appeal and upheld the Maribor Labour Court’s judgment. The
applicant lodged an appeal on points of law in which he complained about, inter
alia, not being present at one of the hearings, and his claims being
previously upheld but eventually rejected owing to improper conduct of the
court’s proceedings.
On 4 November 2003 the
Supreme Court, sitting as a panel of five judges, one of whom was judge L.F.,
rejected the appeal on points of law, finding that the lower courts had not committed
any errors in the application of the procedural rules and that the applicant
had been provided with an opportunity to participate in all hearings. It also noted
that the previous court’s decisions had been quashed because they had been found
to be erroneous. Lastly, the Supreme Court found that the relevant substantive
law had been properly applied to the facts of the case as established by the
lower courts.
On 20 January 2004, the applicant lodged a
constitutional appeal in which he disputed the findings of the Supreme Court
and complained that the proceedings had been biased because of the involvement
of judge L.F., who had previously decided in favour of the company’s appeal.
On 11 March 2005 the Constitutional Court
rejected the appeal on procedural grounds, stating that on account of the
terminated bankruptcy proceedings against the company and the fact that the
company had been deleted from the register of companies, the applicant no
longer had any legal interest. The decision was served on the applicant on 15
March 2005.
B. Proceedings concerning the right to a trial within
a reasonable time
Further to the Court’s
communication of the present application to the respondent Government, the
State Attorney’s Office informed the applicant that no settlement offer would
be made. The Office considered that no violation of the right to a trial within
a reasonable time had occurred in his case. That letter was served on the
applicant on 5 February 2009.
On 2 November 2009 the
applicant initiated proceedings before the Celje Local Court, claiming damages for
undue delays in the above-mentioned labour proceedings. He referred to the Act on the Protection of the Right to a Trial without undue
Delay (“the 2006 Act”) and on that basis claimed EUR 5,000 for
non-pecuniary damage. He further claimed EUR 3,000 for non-pecuniary damage
on the basis of the Code of Obligations.
The court held a hearing
on 24 February 2011. On 14 March 2011 it issued a judgment rejecting the
applicant’s claim for EUR 3,000, finding that it had no basis in law. As
regards the claim for EUR 5,000, the court found that it had jurisdiction to
decide on it as the case fell under section 25 of the 2006 Act. However, the
court dismissed the claim as it had been lodged outside the six-month
time-limit provided for by paragraph 2 of section 25 of the 2006 Act. It found
that the applicant had received the letter from the State Attorney’s Office on
5 February 2009 and should therefore have lodged the compensation claim under
the 2006 Act no later than 5 August 2009. The applicant did not appeal.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Civil Procedure Code
(Official consolidated version UPB1, Official Gazette no. 12/2003) read as
follows:
Section 70
“A judge or a lay judge shall be prohibited from exercising
judicial functions:
...
(5) if he or she has participated in the same
proceedings before a lower court ...
(6) if other circumstances raise doubts about his or
her impartiality.”
Section 71
“If a judge or a lay judge discovers that there exists a reason
for exclusion mentioned in one of points 1 to 5 of section 70 of this Act, he
or she must immediately cease to perform any work in the case and must notify
the President of the court, who shall appoint a replacement judge.
...”
As regards the remedies before the Administrative Court, see paragraphs 34-35 of Mandić and Jović v.
Slovenia, nos. 5774/10 and 5985/10, 20
October 2011. For the relevant provisions of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, §§
16-26, 18 October 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE RIGHT TO AN IMPARTIAL TRIBUNAL
The applicant complained that one of the judges
involved in the proceedings concerning his appeal on points of law could not be
considered impartial because of his prior involvement in the case as a judge of
the Higher Court. He invoked Article 6 § 1 of the Convention, which reads, in
so far as relevant, as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law.”
A. Admissibility
1. The parties’ arguments
The Government pleaded non-exhaustion of
domestic remedies, submitting that the applicant had failed to avail himself of
a claim under the first paragraph of section 4, read together with section 33,
of the Administrative Disputes Act. The Government maintained that while the
applicant could not have obtained the quashing of the impugned decisions, the Administrative Court could have found a violation of his human rights and awarded compensation
for any damage sustained. In support of their
argument, the Government referred to the case-law of the Administrative Court which they had submitted in the case of Mandić and Jović (cited
above, § 99).
The
applicant disputed that objection. He argued that the claim referred to by the
Government could only be lodged in respect of acts and actions, and only when
no other judicial proceedings were possible. There was an established practice whereby
breaches of procedural rules had to be claimed in the proceedings in which they
had allegedly been committed. He referred to the case-law of the Supreme Court,
in particular its decision of 13 December 2007 (Up 726/2007). In that decision,
the Supreme Court had upheld the Administrative Court’s rejection of a claim of
violation of human rights lodged under section 4 of the Administrative Disputes
Act in which the claimant had complained that the judge in her civil case had
not been appointed in accordance with the law. The Supreme Court had found that
the claimant had had judicial protection at her disposal within the main
proceedings before the ordinary courts. It pointed to the established case-law of
the higher courts and the Supreme Court. The case-law indicated that the courts
of general jurisdiction should decide on matters of violation of the right to an
impartial tribunal within their system of ordinary remedies. A reference
was also made to the practice of the Constitutional Court which required the
remedies available in the proceedings under general jurisdiction to be
exhausted before a constitutional appeal concerning the right to a fair trial
allegedly violated therein could be lodged.
The applicant further submitted that the
provisions in questions were not meant to address situations such as his. It
was unclear even when the thirty-day deadline for lodging such a claim would
start to run. Moreover, the applicant argued that the Government had submitted
no relevant case-law to support their assertions.
2. The Court’s assessment
The Court reiterates that, in accordance with
Article 35 of the Convention, it is not required to decide whether or not the
facts alleged by an applicant disclose any appearance of a violation unless all
domestic remedies have been exhausted according to the generally recognised
rules of international law. It falls to a Government pleading non-exhaustion to
prove that the remedy in question was available to the applicant in theory and
in practice at the material time. Once this burden of proof has been
discharged, it is incumbent on the applicant to establish that the remedy
relied on by the Government was in fact exhausted or was inadequate and ineffective
in the particular circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement (see Lukenda v. Slovenia,
no. 23032/02, §§ 43 and 44, ECHR 2005‑X).
The Court notes
that a claim under the first paragraph of section 4, read together with section
33, of the Administrative Disputes Act, is conditional on a number of elements,
one of them being that the action concerned had resulted in the unlawful
hindrance, limitation or prevention of the enjoyment of a human right, and
another being the absence of any other judicial protection. It is not for the
Court to speculate on the possible interpretation of the provisions concerned
in the context of an alleged violation of the fair trial guarantees in court
proceedings. It notes that the applicant referred to a decision of the Supreme
Court (see paragraph 26 above) which raised serious doubts that a claim before
the Administrative Court would provide redress in cases such as the present
one. The Court understands from the material submitted to it that when the alleged
violation occurred in the proceedings before the Supreme Court, a constitutional
appeal, and not a claim before the Administrative Court, would have been the
appropriate avenue of redress. In the present case the applicant did avail
himself of that remedy but was unsuccessful for reasons outside his control, such
as the company’s bankruptcy.
Finding that the Government failed to prove that
a claim to the Administrative Court was available to the applicant in theory
and in practice at the material time, the Court concludes that their objection
must be rejected (see, mutatis
mutandis, Mandić and Jović, cited above, § 112, and
Belinger
v. Slovenia (dec.), no. 42320/98, 2 October 2001).
The Court notes that this complaint 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
1. The parties’ arguments
The applicant argued that the fact that judge
L.F. had decided on his appeal on points of law was an absolute breach of the
procedural legislation and should have led to the quashing of the Supreme Court’s
judgment. He further argued that the fact that the Supreme Court did not appear
impartial was enough to find a violation of the right to a fair trial.
The Government admitted that the fact that the
same judge had participated in two stages of the proceedings was contrary to
sections 70 and 71 of the Civil Procedure Code. However, the conduct of judge
L.F. disclosed no actual bias. The Government also argued that nine years had
passed between judge L.F.’s first involvement in the case and his second, and
that the circumstances of the case had significantly changed in the meantime.
Moreover, the Supreme Court had assessed an aspect of the case which was
entirely different from the one assessed by the panel of the Higher Court of
which judge L.F. had been a member.
2. The Court’s assessment
According to the Court’s constant case-law, when the
impartiality of a tribunal for the purposes of Article 6 § 1 is being
determined, regard must be had to the personal conviction and behaviour of a
particular judge in a given case – the subjective approach – as well as to
whether sufficient guarantees were afforded to exclude any legitimate doubt in
this respect – the objective approach (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005‑..., and Fatullayev v. Azerbaijan, no. 40984/07, § 136, 22 April 2010).
Firstly, as to the subjective test, the tribunal
must be subjectively free of personal prejudice or bias. In this regard, the
personal impartiality of a judge must be presumed until there is proof to the
contrary (see, among other authorities, Padovani
v. Italy, 26 February 1993, § 26, Series A no. 257-B, and Morel v. France, no. 34130/96, § 41, ECHR
2000-VI). In the present case, in the absence of any evidence to the contrary,
there is no reason to doubt judge L.F.’s personal impartiality.
Secondly, under the objective test, it must be
determined whether, quite apart from the judge’s personal conduct, there are
ascertainable facts which may raise doubts as to his impartiality (see Micallef
v. Malta [GC], no. 17056/06, § 96, ECHR 2009), since “justice must not only
be done; it must also be seen to be done”. In
this regard, even appearances may be of a certain importance. What is at stake
is the confidence which the courts in a democratic society must inspire in the
public (see De Cubber v. Belgium, 26 October 1984, § 26, Series A
no. 86). Accordingly, any judge in respect of whom there is a legitimate reason
to fear a lack of impartiality must withdraw. This implies that in deciding
whether in a given case there is a legitimate reason to fear that a particular
judge lacks impartiality, the standpoint of the party concerned is important
but not decisive. What is decisive is whether this fear can be held to be
objectively justified (see, among many other authorities, Micallef,
cited above, § 96).
When determining the objective justification for
the applicant’s fear, such factors as the judge’s dual role in the proceedings,
the time which elapsed between the two participations, and the extent to which
the judge was involved in the proceedings may be taken into consideration (see,
Švarc and Kavnik v. Slovenia, no. 75617/01, § 40, 8 February 2007; Fatullayev,
cited above, § 139; and Sigma Radio Television Ltd v. Cyprus,
nos. 32181/04 and 35122/05,
§§ 174 and 175, 21 July 2011 ).
In this regard, the Court observes that judge
L.F. presided over the panel of the Higher Court which upheld the opposite
party’s appeal against a judgment that had been issued in the applicant’s
favour. It remitted the case for fresh examination. The applicant’s claim was subsequently
rejected by the first-instance court and he appealed unsuccessfully to the Higher Court. He then lodged an appeal on points of law, which was rejected by the panel of
the Supreme Court, of which judge L.F. was a member. The Court acknowledges
that nine years elapsed between the date of the judgment adopted by the Higher
Court’s panel presided over by judge L.F. and the judgment of the panel of the
Supreme Court of which judge L.F. was a member. However, the role played by
judge L.F. was very significant at both levels of jurisdiction. He was the
presiding judge in the Higher Court’s panel and a member, or even the rapporteur
– this was alleged by the applicant and not disputed by the Government – of the
Supreme Court panel. The judgements reached on both occasions concerned the merits
of the case and were unfavourable to the applicant. Therefore, the Court finds
that the impartiality of the “tribunal” was open to doubt, not only in the eyes
of the applicant but also objectively.
The Court would note that there is no indication
in the case-file that judge L.F. was aware of or reminded of her prior
involvement in this particular case. It observes, however, that there is a risk
of problems arising in a system which lacks safeguards to ensure that judges are
reminded of their prior involvement in particular cases, above all where such
matters rely on the judges’ own assessment (see Puolitaival and Pirttiaho v.
Finland, no. 54857/00, § 44, 23 November 2004, and Švarc and
Kavnik, cited above, § 41).
There has
accordingly been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE CONSTITUTIONAL COURT’S PROCEEDINGS
The applicant complained under Article 6 § 1
that the proceedings had also been unfair in that the Constitutional Court had
failed to deal with his complaint concerning a lack of impartiality on the part
of judge L.F. In particular, he disputed the Constitutional Court’s opinion
that the applicant had lost his legal interest in the matter on account of the
bankruptcy of the opposite party in the proceedings.
The Government contested the applicant’s argument.
The Court notes that this complaint is linked to
the one examined above and must therefore likewise be declared admissible.
Having regard to the finding relating to the
issue of judge L. F’s lack of impartiality (see paragraphs 29 and 34-40 above),
the Court does not find it necessary to asses also the Constitutional Court’s
role in ensuring that the applicant had a fair trial before an impartial
tribunal.
III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13
OF THE CONVENTION WITH RESPECT TO THE ALLEGEDLY UNDUE LENGTH OF THE PROCEEDINGS
The applicant further complained that the labour
proceedings had been unreasonably long and that the remedies available in Slovenia in respect of excessively long proceedings were ineffective.
Article 6 of the Convention provides in so far as relevant:
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
Article 13 of the Convention provides:
“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.”
The Government objected that the applicant had
failed to exhaust domestic remedies as he had lodged a claim for compensation
outside the statutory time-limit. They argued that the local court had clearly
taken the position that the claim under the 2006 Act would have been admissible
had the applicant complied with the time-limit. The applicant did not comment
on the issue.
The Court notes that the applicant lodged a
claim in which he claimed compensation for damage sustained on account of the allegedly
undue length of the proceedings, relying in part on the 2006 Act and in part on
the Code of Obligations. The Court observes that it has already been
established that the Code of Obligations did not provide for effective remedies
with respect to complaints of undue length of proceedings (see Lukenda,
cited above, §§ 54-60 and 66-71). However, the 2006 Act, on which the
applicant also relied in his claim, provided for a special compensatory remedy which
was found in Korenjak v. Slovenia ((dec.), no. 463/03,
15 May 2007) and Carević
v. Slovenia ((dec.), no. 17314/03, 3 June 2008) to constitute an
appropriate means of redressing a violation of the right to have one’s case
examined within a reasonable time. The Court further notes that the Ljubljana Local Court took the position that section 25 of the 2006 Act, which concerned
transitional rules, applied to the proceedings in question and that the
compensation claim would have been admissible in the applicant’s case if it had
been lodged within the statutory time-limit. In this connection, the Court observes
that applicants must comply with the applicable rules and procedures of
domestic law when making use of domestic remedies (see Beguš v. Slovenia, no. 25634/05, § 29, 15
December 2011, and Ben Salah, Araqui and Dhaime v. Spain (dec.), no. 45023/98, ECHR 2000-IV), and finds that the
present applicant failed to do so. The Government’s objection concerning the
non-exhaustion of domestic remedies as regards the complaint of undue delays
under Article 6 § 1 must therefore be upheld (Article 35 § 1 of the
Convention).
Having regard to the finding above that the
applicant had an effective remedy at his disposal but failed to use it
properly, the Court concludes that his complaint under Article 13 is manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention.
This part of the application must therefore be
rejected under Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 15,230 euros (EUR) in
respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage sustained
on account of the alleged violations in the present case.
The Government argued that the claims were
unsubstantiated.
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, dealing on an equitable basis it awards
the applicant EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,500 for the
costs and expenses incurred before the Court.
The Government disputed the claim.
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 Court notes that in the present case the applicant
did not explain his claim or submit supporting documents or detailed
information showing that the costs claimed had been actually and necessarily
incurred (see S.I. v. Slovenia, no. 45082/05, § 87, 13 October 2011). The Court
therefore rejects this claim.
C. Default interest
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 complaint under Article 6 § 1
concerning a lack of judicial impartiality and the Constitutional Court’s
failure to deal with the related constitutional appeal admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the lack of impartiality of judge
L.F.;
3. Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention concerning the Constitutional Court’s failure to deal with the applicant’s constitutional appeal;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 5,000 (five
thousand 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
