FOURTH SECTION

DECISION

Application no . 18105/13 Alenka Å AVER against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 7 February 2017 as a Committee composed of:

Nona Tsotsoria , President, Krzysztof Wojtyczek , Marko Bošnjak , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 6 March 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Alenka Šaver , is a Slovenian national, who was born in 1961 and lives in Petrovče . She was represented before the Court by Mr Z. Korenčan , a lawyer practising in Ljubljana.

2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran , State Attorney.

The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant and D.Å . were directors of company A. which appears to have encountered financial difficulties in 2005.

5. In 2007 criminal proceedings were instituted against the applicant and D.Å . and the applicant gave a power of attorney to Z.K.

6. After the indictment was lodged against the applicant, the Celje District Court, on 4 April 2012, issued an order prohibiting Z.K. from representing the applicant, finding that in the pre-trial proceedings, Z.K. had represented company A. and had lodged an objection against the order for a temporary seizure of proceeds of crime on its behalf. The court based its decision on the legislative provision which provided that counsel could not represent two or more co-accused persons in the same criminal proceedings. It would appear that A.N., a representative of D.Å ., was also banned from representing the latter.

7 . The applicant and D.Å . appealed the order arguing essentially that that no conflict of interest could be shown in the present case. On 21 August 2012 the Celje Higher Court dismissed their appeal and endorsed the reasoning of the first-instance court. It pointed out that the aforementioned provision (see paragraph 6 above) applied also to the pre-trial proceedings.

8. D.Š. ’ s former representative (A.N.) then lodged a request for the protection of legality (extraordinary legal remedy). The Supreme Court did not consider it on the merits due to the fact that the criminal proceedings were still pending.

9. The applicant lodged a constitutional complaint. On 22 October 2012 the Constitutional Court refused to admit the applicant ’ s complaint for consideration.

10. In her last submissions to the Court, dated 4 August 2015, the applicant confirmed that the proceedings were still pending before the first-instance court, that is the Celje District Court.

COMPLAINTS

11. The applicant complained under Article 6 § 3 (c) of the Convention about the domestic court ’ s decision to prohibit her counsel Z.K. from further representing her in the criminal proceedings. She argued that no charges had eventually been brought against company A. and that the domestic courts had therefore misinterpreted the legislative provision prohibiting counsel from defending two or more defendants in the same criminal matter.

THE LAW

12. The applicant complained that she had not had a fair trial because she had not been allowed to retain counsel of her own choosing in the criminal proceedings against her.

13. Although the applicant relied on Article 6 § 3 (c), the complaint relates to both paragraph 1 as well as paragraph 3 (c) of Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

14. The Government argued that the complaint was premature and that the applicant had failed to exhaust domestic remedies. In particular, they submitted that the impugned proceedings were still pending before the first-instance court and that the applicant would be able to invoke her complaint concerning the free choice of counsel in an appeal, request for the protection of legality, as well as constitutional appeal, if a judgment is issued against her. Moreover, the Government pointed out that the Supreme Court had so far not been in a position to deal with the substance of the applicant ’ s complaint as it had been premature.

15. The applicant argued that, in view of the fact that the proceeding had been still pending, there would have been no point to lodge a request for the protection of legality with the Supreme Court. In this connection, she referred to the Supreme Court ’ s position that the proceedings should be concluded in order for the request for the protection of legality to be admissible, which she found unsatisfactory.

16. The Court notes that the applicant confirmed in her last submissions to the Court, dated 4 August 2015, that the criminal proceedings against her were still pending before the first-instance court (see paragraph 10 above). It further notes that though the applicant considered it unsatisfactory to have to wait until the end of the criminal proceedings, she did not dispute that if convicted by the first-instance court she would be able to effectively challenge such conviction before the higher domestic courts by invoking her right to be represented by counsel of her own choosing. Accordingly and without prejudice to the applicant ’ s possibility of bringing new proceedings before this Court in the event of a conviction by the domestic courts and after exhausting domestic remedies, the Court, in view of the fact that the criminal proceedings against the applicant were at the date of the last information still pending, finds this complaint to be premature ( see Fenech and Agius v. Malta ( dec. ), nos. 23243/13 and 23343/13, 5 January 2016; see also, mutatis mutandis, Arrigo and Vella v. Malta ( dec. ), no. 6569/04, 10 May 2005).

Consequently, the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 March 2017 .

Andrea Tamietti Nona Tsotsoria Deputy Registrar President