CASE OF PERAK v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1963 and lives in Mežica. 6. On 22 August 2003 the applicant brought criminal charges (“criminal action”) for defamation against A.Š., thus undertaking criminal prosecution as private prosecutor. Along with the criminal action, the applicant made a motion to be awarded compensation for pecuniary and non-pecuniary loss arising from the commission of the criminal offence in question. 7. On 16 November 2006 the Ljubljana District Court handed down its judgment and found A.Š. guilty of the criminal offence of defamation, giving him a suspended sentence of one month in prison and ordering him to pay the costs of the proceedings. In respect of the applicant’s claim for compensation, the district court held that the claim was unsubstantiated and directed the applicant to seek compensation in civil proceedings. 8. Both parties appealed against the judgment before the Ljubljana Higher Court. In particular, the applicant alleged that there had been a violation of the Criminal Code and that the punishment imposed on A.Š. had been too lenient. He also complained about the fact that the first-instance court had not ruled on his claim for compensation, despite the fact that there had allegedly been enough material in the case file to enable it to rule on the matter. 9. On 11 March 2008 the Ljubljana Higher Court granted the applicant’s appeal in respect of the punishment and increased it to three months of suspended sentence. However, it dismissed the complaint concerning the applicant’s unsuccessful claim for compensation, confirming the lower court’s view that it had not been substantiated. 10. The applicant did not institute separate civil proceedings for compensation. 11. On 12 May 2008 A.Š. lodged with the Supreme Court a request for the protection of legality (an extraordinary legal remedy whereby to challenge the procedural and substantive legality of final decisions), alleging an incorrect application of the Criminal Procedure Act. In particular, he alleged that the applicant’s criminal action had been brought out of time. 12. On 27 May 2008 the Ljubljana District Court notified the applicant’s representative that on 12 May 2008 A.Š. had lodged a request for the protection of legality; however, the notification did not include a copy of the said request for the protection of legality. 13. On 4 July 2008, pursuant to Section 423 of the Criminal Procedure Act, the request for the protection of legality was sent to the Supreme State Prosecutor for a response. 14. In that response, the Supreme State Prosecutor agreed that the criminal action had been brought out of time. This response was served on A.Š. and his representatives. 15. However, neither the applicant nor his representative were served with that response; nor were they ever served with the request for the protection of legality. 16. On 28 August 2008 the Supreme Court, without having informed the parties of the date of the deliberation session, deliberated in private and upheld the request for the protection of legality, dismissing the applicant’s action as having been lodged out of time. Further, it ordered the applicant to pay the costs of proceedings including the costs and attorney’s fees incurred by A.Š. and a lump sum covering court fees of 600 euros (EUR). 17. Not being aware that the request for the protection of legality had already been decided, on 3 September 2008 the applicant’s representative requested the relevant documentation from the Ljubljana District Court. 18. On 5 September 2008 the Ljubljana District Court informed the applicant’s representative that the case-file documents had been with the Supreme Court since 30 June 2008. Accordingly, on the same day the applicant’s representative requested from the Supreme Court the documentation regarding the request for the protection of legality. 19. On 12 September 2008 the Supreme Court informed the applicant’s representative that A.Š. had lodged a request for the protection of legality which had been upheld on 28 August 2008. 20. On 22 September 2008 the Supreme Court’s judgment was served on the applicant’s representative. 21. On 20 November 2008 the applicant lodged a constitutional complaint. Citing Articles 14, 22 and 23 of the Constitution, the applicant claimed that he had not been afforded equality before the law and that his right to judicial protection and his right to equal protection had been violated as he had not been given the opportunity to participate in the proceedings before the Supreme Court. He also alleged violations of the Convention, citing Articles 6 and 14 and Article 1 of Protocol No. 1, the latter in respect of the fact that he had been ordered to pay the opposite party’s costs of the proceedings. 22. On 5 January 2009 the Constitutional Court rejected the applicant’s complaint.