CASE OF HIT D.D. NOVA GORICA v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Martens;Vincent A. De Gaetano
5. The Slovenian-based applicant company operates gaming and entertainment centres. 6. On 19 June 1996, the applicant company’s then new managing director instituted disciplinary proceedings against one of its employees, N.N., in respect of the disciplinary offence of excessive and irresponsible use of the company’s funds. The new managing director had been informed about the alleged offence two days earlier. On 21 October 1996 the disciplinary board terminated N.N.’s employment on the grounds that she had seriously breached her employment obligations. An appeal lodged by N.N. against that decision was dismissed. On 24 December 1996 N.N. brought a claim before the Koper Labour Court, requesting that the termination of her employment be declared null and void. She alleged, inter alia, that the disciplinary proceedings against her were time-barred. 7. In a judgment of 30 September 1997 the Labour Court dismissed N.N.’s request. Having considered that the applicant company’s former managing director had not had sufficient knowledge of the acts constituting the disciplinary offence, the Labour Court concluded that the three-month time-limit for the institution of disciplinary proceedings had started to run from the date on which N.N.’s disciplinary offences had been discovered by the new management of the applicant company. The court therefore held that disciplinary proceedings had not been time-barred. N.N. appealed against the judgment. 8. 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. Relying on a statement made by the applicant company’s former managing director, it concluded that he had had sufficient knowledge of N.N.’s actions to be able to institute disciplinary proceedings against her if he had considered that to be necessary. Accordingly, the higher court held that the disciplinary proceedings against N.N. had in fact been time-barred. The applicant company lodged an appeal on points of law before the Supreme Court. 9. On 7 November 2000 the Supreme Court upheld the applicant company’s appeal on points of law, as the higher court had established the facts differently from the first-instance court without having conducted an oral hearing. The Supreme Court therefore found that the adversarial principle had been breached in the appeal proceedings and set aside the second-instance judgment. The case was remitted to the Higher Labour and Social Court for fresh consideration. 10. On 7 December 2000 the Higher Labour and Social Court, sitting in a panel presided by judge M.K., held that the facts which had affected the expiry of the statutory limitation period for commencing disciplinary proceedings had not been duly established, and remitted the case to the first-instance court for fresh consideration. 11. On 12 April 2001 the Koper Labour Court rendered an interim judgment, finding again that the disciplinary proceedings had not been time-barred and thus dismissing N.N.’s request for annulment of the decision to terminate her employment. N.N. appealed against the judgment. 12. On 3 July 2003 the Higher Labour and Social Court again established quite the opposite, namely that the disciplinary proceedings had been time-barred, and upheld N.N.’s appeal. Judge M.K. did not take part in the proceedings. The applicant company appealed on points of law. 13. On 15 June 2004 the Supreme Court again upheld the applicant company’s appeal on the grounds that the adversarial principle had been breached in the appeal proceedings. The case was remitted for fresh consideration to the Higher Labour and Social Court, sitting in a panel composed of different judges. 14. On 3 February 2005 the Higher Labour and Social Court found that the facts of the case had still not been sufficiently established, and remitted the case to the first-instance court for fresh consideration. 15. On 10 November 2006 the Koper Labour Court found, in its third consideration of the case, that the disciplinary proceedings had been time-barred, as the former managing director had been fully informed about N.N.’s actions that had constituted the disciplinary offence. Accordingly, the court granted N.N.’s claim and declared the termination of her employment null and void. The decision on her compensation claim against the applicant company was postponed. Both parties appealed. 16. On 29 March 2007 the Higher Labour and Social Court upheld the appeal lodged by N.N. and dismissed the applicant company’s appeal in which it contended, inter alia, that the statements made by the former managing director of the applicant company in the later stages of the proceedings had conflicted with his earlier accounts of the facts and had obviously been made in order to exculpate N.N., with whom he had close personal ties. 17. 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 judgment of the lower courts that the disciplinary proceedings had been time-barred. 18. On 7 May 2008 the applicant company, represented by a lawyer, lodged a constitutional appeal alleging, inter alia, that in the determination of whether disciplinary proceedings against N.N. had been time-barred, the principle of equality of arms had been breached. In addition, the applicant company contended that the labour courts’ position regarding the limitation period for commencing disciplinary proceedings in the particular circumstances at issue had contravened its free economic initiative enshrined in the Constitution. It argued that if the former managing director had known about N.N.’s actions, that in itself had constituted a disciplinary offence and should not have been interpreted in her favour. On 8 May 2008 the Constitutional Court informed the applicant company that its constitutional appeal had been assigned to judge rapporteur M.M. 19. On 15 May 2008 the Koper Labour Court decided on N.N.’s claim for compensation for the unlawful termination of her employment. It ordered the applicant company to pay N.N. compensation for lost wages and various benefits for the period when she had not been employed or had been paid a lower salary by other employers. The remainder of N.N.’s claim was dismissed. 20. On 23 September 2008 the Constitutional Court, in a three-judge panel in charge of the examination of constitutional appeals in the field of administrative law, which included judge M.K., refused to accept the applicant company’s constitutional appeal for consideration, stating that its fundamental rights and freedoms had not been violated. The decision, which included the information on the composition of the panel, was taken in camera and without the attendance of the applicant company or the respondent party. 21. The relevant provisions of the Constitutional Court Act on the disqualification of judges read as follows: “(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. ...” “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.” “(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. ...” 22. The relevant provisions of the Civil Procedure Act on this issue, applicable to the proceedings before the Constitutional Court, read as follows: “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 ...” “Immediately after learning of the existence of any ground for disqualification under clauses 1 to 5 of the preceding Article, the judge or lay judge shall discontinue forthwith any activity in the proceedings and shall notify thereupon the president of the court, who shall appoint a substitute judge or lay judge. ...” “The disqualification of a judge may also be requested by the parties. A party shall be required to bring a motion to disqualify a judge or a lay judge immediately after learning of any grounds for disqualification and not later than before the end of the hearing before the competent court or, if there is no hearing, before the judgment is passed. ...” 23. The Constitutional Court is composed of nine judges. In the constitutional appeal proceedings, the admissibility, and in cases involving well-established case-law also the merits, of individual cases are considered by three panels of three judges each. Pursuant to the Rules of Procedure of the Constitutional Court, information regarding the division of work by areas between the civil, criminal and administrative panels and their respective composition is accessible on the court’s website. It is also included in the “Work Schedule of the Constitutional Court” published twice a year, for the autumn and spring terms, in the Official Gazette. The work schedule includes the names of the judges who sit in the individual panels, as well as the names of the substitute judges designated to replace individual members of the three panels in the event of their absence or disqualification. According to the court’s Work Schedule, the administrative panel adjudicates on, inter alia, constitutional appeals against individual acts issued in labour dispute proceedings.