FIFTH SECTION
Application no. 50996/08
HIT D.D. NOVA GORICA
against Slovenia
lodged on 15 October 2008
STATEMENT OF FACTS
The applicant company Hit d. d. Nova Gorica, is a public limited company whose registered office is in Nova Gorica. It was represented before the Court by Ms B. Avsec, a lawyer practising in Ljubljana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The case originated in disciplinary proceedings the applicant company initiated against one of its employees, Mrs N.N., for the disciplinary offence of excessive and irresponsible use of the company’s funds. On 21 October 1996 the disciplinary board terminated her employment due to a serious breach of employment obligations. Mrs N.N.’s appeal against that decision was dismissed. Mrs N.N. introduced a claim before the Koper Labour Court, requesting that the termination of her employment be declared null and void.
In a judgment of 30 September 1997 the Koper Labour Court, dismissed Mrs N.N.’s claim for annulment of the disciplinary decisions and reinstatement of employment. Inter alia, it rejected N.N.’s complaint that the disciplinary proceedings had been time-barred. N.N. appealed against this judgment.
On 17 December 1999 the Higher Labour and Social Court, sitting in a panel of three judges, which included judge M.K., upheld N.N.’s appeal and ordered the applicant company to reinstate her, as it held that the disciplinary proceedings had indeed been time-barred. The applicant company lodged an appeal on points of law before the Supreme Court.
Following the judgment of the Higher Labour and Social Court, the applicant company on 12 January 2000 invited N.N. to attend a meeting regarding her reinstatement, but she was unable to attend and requested its postponement. Consequently, the applicant company adopted a decision terminating Mrs N.N.’s employment due to absence without leave. Mrs N.N.’s objection to the decision was dismissed as unfounded. N.N. brought a fresh action for annulment of the decision on termination of employment before the Koper Labour Court.
On 7 November 2000 the Supreme Court upheld the applicant company’s appeal on points of law due to a breach of the adversarial principle in the appeal proceedings and set aside the second-instance judgment. The case was remitted to the latter court for a new consideration.
On 7 December 2000 the Higher Labour and Social Court, sitting in a panel presided by judge M.K., held that the facts which affected the expiry of the limitation period for the initiation of disciplinary proceedings had not been duly established, and remitted the case to the first-instance court for a new consideration.
On 12 April 2001 the Koper Labour Court rendered an interlocutory judgment, finding again that the disciplinary proceedings had not been time-barred and thus dismissing Mrs N.N.’s claim to annul the termination of her employment. Mrs N.N. appealed against this judgment.
On 3 July 2003 the Higher Labour and Social Court established that the disciplinary proceedings had been time-barred and therefore upheld Mrs N.N.’s appeal. The applicant company appealed on points of law.
On 15 June 2004 the Supreme Court upheld the applicant company’s appeal due to a breach of the adversarial principle in the appeal proceedings and remitted the case for a new consideration to the Higher Labour and Social Court, sitting in a differently composed panel.
On 3 February 2005 the Higher Labour and Social Court found that the facts of the case still had not been sufficiently established, and remitted the case to the first-instance court for a fresh consideration.
On 10 November 2006 the Koper Labour Court found that the disciplinary proceedings had been time-barred and granted Mrs N.N.’s claim that the termination of her employment was null and void. The decision on her compensation claim against the applicant company was adjourned. Both parties appealed.
On 10 November 2006 the Higher Labour and Social Court dismissed the applicant company’s appeal and upheld the appeal lodged by N.N. The applicant company lodged an appeal on points of law.
On 26 February 2008 the Supreme Court dismissed the applicant company’s appeal and reaffirmed the position of the lower courts that the disciplinary proceedings had been time-barred.
On 15 May 2008 the Koper Labour Court decided on Mrs N.N.’s claim for compensation due to the unlawful termination of her employment. It ordered the applicant company to pay Mrs N.N. wage compensation and various benefits for the period when Mrs N.N. was not employed or was paid a lower salary by other employers. The remainder of Mrs N.N.’s claim was dismissed.
On 23 September 2008 the Constitutional Court in a three-judge panel, which included judge M.K., refused to accept the applicant company’s constitutional complaint for consideration.
B. Relevant domestic law
The relevant provisions of the Constitutional Court Act (Official Gazette No. 64/07 – official consolidated text) read as follows:
Article 31
“(1) In deciding on an individual case, the Constitutional Court may disqualify a Constitutional Court judge by applying, mutatis mutandis, the reasons for disqualification in court proceedings.
...”
Article 32
“Immediately upon a Constitutional Court judge learning of any reason for his disqualification as referred to in the preceding article, he must stop working on the case and notify the President of the Constitutional Court of such.”
Article 33
“(1) A motion for disqualification may be submitted by the participants in the proceedings until the beginning of the public hearing, if such hearing is scheduled, or respectively until the beginning of the closed session of the Constitutional Court at which the case is to be decided. The motion must include a statement of reasons.
...”
The relevant provision of the Civil Procedure Act (Official Gazette Nos. 73/07 – official consolidated text, 45/08) reads as follows:
Article 70
“A judge or a lay judge shall be prohibited from exercising judicial functions:
...
(5) if he or she participated in the same proceedings before a lower court...”
COMPLAINTS
The applicant company complains under Article 6 § 1 of the Convention that its case was not heard by an impartial tribunal, as the same judge, Mrs. M.K., took part in two appellate stages, first in two instances of proceedings before the Higher Labour and Social Court and later in the proceedings before the Constitutional Court.
Further relying on Article 6 § 1 of the Convention, the applicant company also complains that it was denied a fair hearing due to the arbitrariness of the interpretation of the Slovenian courts of the relevant provisions concerning the time-barring of the disciplinary proceedings.
Relying on Article 1 of the Protocol No. 1 to the Convention, the applicant company complains that its possessions and solvency are at risk due to the judicial decision whereby it is required to pay compensation to Mrs N.N.
QUESTION TO THE PARTIES
Did the applicant company challenge the impartiality of judge M.K.? If not, does this failure amount to non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention? Assuming that domestic remedies have been exhausted, was the Constitutional Court panel which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention, since judge M.K. took part in two different appellate stages concerning the same domestic dispute?
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