Communicated on 8 December 2014
FIFTH SECTION
Application no. 37903/09
Marko PERAK
against Slovenia
lodged on 6 July 2009
STATEMENT OF FACTS
The applicant, Mr Marko Perak, is a Slovenian national, who was born in 1963 and lives in Mežica. He is represented before the Court by Mr N. Grgurevič, a lawyer practising in Maribor.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 August 2003 the applicant brought an action against A.Š. for the criminal offence of defamation. Through this action he also demanded the payment of compensation.
On 16 November 2006 the Ljubljana District Court handed down its judgment and found A.Š. guilty of the criminal offence of defamation. It sentenced A.Š. to one month of imprisonment (suspended). It also imposed the payment of the costs of the proceedings on A.Š. As regards the claim for indemnification it directed the applicant to seek compensation in civil proceedings as it held that the claim was unsubstantiated.
Both parties appealed against the judgment before the Ljubljana Higher Court. In particular, the applicant appealed about an alleged violation of the Criminal Code and the punishment imposed. He also complained about the fact that the first-instance court did not decide on his claim for compensation, despite the fact that it had had enough facts in the file to decide the matter.
On 11 March 2008 the Ljubljana Higher Court upheld the applicant’s appeal in respect of the punishment and increased it to three months. As regards the claim for compensation it dismissed this part of the appeal reiterating that the applicant did not substantiate his claim.
The applicant did not institute separate civil proceedings for claiming compensation.
On an unknown date A.Š. brought a request for the protection of legality before the Supreme Court claiming an incorrect application of the Criminal Procedure Act. In particular, he alleged that the applicant’s criminal action had been lodged out of time.
In the reply to the request for the protection of legality the Supreme State Prosecutor agreed that the action had been lodged out of time. This reply was served on A.Š. and his representatives.
However, the applicant or his representative were never served neither with this reply nor with the request for the protection of legality, therefore the applicant was unable to participate in the proceedings before the Supreme Court.
On 14 July 2008 the applicant’s representative received a letter from A.Š.’s representatives, where they mentioned that they had lodged a request for the protection of legality.
On an unspecified date, after he became aware that the appeal on points of law had been lodged, the applicant’s representative requested the documentation in that regard from the Ljubljana District Court.
On 5 September 2008 the Ljubljana District Court informed him that the case-file documents had been with the Supreme Court since 30 June 2008. Therefore, on the same day, the applicant’s representative requested an update on the case from the Supreme Court.
On 12 September 2008 the Supreme Court informed the applicant’s representative that in the present case A.Š. brought a request for the protection of legality which was decided on 28 August 2008. Indeed, on such date, in the absence of the applicant, the Supreme Court upheld the request for the protection of legality lodged by A.Š. and dismissed the applicant’s action as being lodged out of time. Further, it ordered the applicant to pay the costs of the proceedings, namely, the award and expenses of A.Š. and his representatives and a lump-sum in court fees of 600 euros (EUR).
On 20 November 2008 the applicant lodged a constitutional appeal. Citing Articles 14, 22 and 23 of the Constitution, the applicant claimed that there was no equality before the law and that the right to judicial protection and the right to equal protection were violated as he could not participate in the proceedings before the Supreme Court. He also alleged violations of the Convention, citing Articles 6, 14 and Article 1 of the Protocol No. 1, the latter in so far as he was ordered to pay the opposite party’s costs of the proceedings.
On 5 January 2009 the Constitutional Court rejected the applicant’s appeal as having been filed by an unauthorized person.
B. Relevant domestic law
The following provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, Official Gazette nos. 33/91 and 69/04) are relevant to the present case:
“Article 14 (Equality before the Law)
In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status, disability or any other personal circumstance.
All are equal before the law.
Article 22 (Equal Protection of Rights)
Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local community authorities and bearers of public authority that decide on his rights, duties or legal interests.
Article 23 (Right to Judicial Protection)
Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
The relevant provisions of the Criminal Code (Kazenski zakonik, Official Gazette no. 55/2008), in so far as relevant, read as follows:
Article 168
“(1) The prosecution of criminal offences under Articles 158 to 162 and Article 166 of this Penal Code shall be initiated upon a private action.
...”
The relevant provision of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 32/12), in so far as relevant, reads as follows:
Article 19
“(1) ...
(2) In cases involving offences liable to prosecution ex officio, the public prosecutor shall be the authorised prosecutor. In cases involving offences liable to private prosecution a private prosecutor shall be the authorised prosecutor.
...”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that he was not afforded a fair hearing. In particular, he submits that the opposite party’s request for the protection of legality had never been served on him or his representative and that, thus, he could not participate in the proceedings before the Supreme Court.
QUESTIONs to the parties
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 26, 20 March 2009)?
2. Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention? In particular, was the applicant’s right to adversarial proceedings respected in the proceedings before the Supreme Court, having regard to the failure to provide the applicant with a copy of the request for the protection of legality lodged by the opposite party and that, thus, he could not have participated in those proceedings?
Full & Egal Universal Law Academy