CASE OF PERUŠ v. SLOVENIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Julia Laffranque;Karel Jungwiert;Mark Villiger
6. The applicant was born in 1940 and lives in Slovenska Bistrica. 7. 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. 8. 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. 9. 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. 10. 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. 11. On 25 April 1995 the Maribor Labour Court stayed the proceedings since bankruptcy proceedings had been instituted against the company. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. The relevant provisions of the Civil Procedure Code (Official consolidated version UPB1, Official Gazette no. 12/2003) read as follows: “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.” “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. ...” 23. 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.