CONCURRING OPINION OF JUDGE BOÅ NJAK

1. In the present case, I voted with the other members of the Chamber to find a violation of Article 6 § 1 of the Convention and, with the majority, to award the applicant company EUR 52,500 in respect of pecuniary damage. Equally, I agree with the reasoning as contained in the judgment. Nevertheless, I submit this concurring opinion in order (a) to signal possible systemic problems at the level of domestic legislation and (b) to advance some further arguments in respect of the “loss of real opportunities” doctrine.

2. According to our Court’s well-established case-law under Article 6 § 1 of the Convention, the decisions taken by administrative authorities in cases involving the determination of an individual’s civil rights and obligations or of criminal charges against him or her must be subject to subsequent control by a judicial body that has full jurisdiction over the case, which means jurisdiction to examine all questions of fact and law relevant to the dispute before it (see, for example, Grande Stevens and Others v. Italy , nos. 18640/10 and 4 others, 4 March 2014). Since in the present case the Supreme Court refused to examine the facts on which the applicant company’s conviction was based, the violation of the applicant company’s rights under Article 6 § 1 of the Convention was simply obvious.

3. As the Court’s task is neither to review the domestic courts’ interpretation of national law nor the conformity of the domestic legislation with the Convention requirements, it comes as no surprise that the present judgment refrains from any analysis of possible causes of the violation in question. In my capacity as the national judge, I nonetheless wish to invite the stakeholders in the Slovenian legal system, notably the legislature, the Government and the judiciary, to reflect on whether any amendments to the relevant legislation are needed in order to avoid similar violations in future. In this respect, these stakeholders might wish to turn their attention to the applicable provisions on administrative disputes governing the extent to which it is possible for plaintiffs to address questions of fact in their submissions to the competent court performing judicial review, and the corresponding extent of competence of that court to review or even autonomously establish the relevant facts. Alternatively, it might be of importance to establish whether the implementation of the existing legislative provisions is in conformity with the Convention requirements outlined above.

4. In addition, I personally find it striking that the domestic law does not expressly allow for the reopening of the proceedings in the present case, although this has been considered as the most appropriate form of redress on numerous occasions (see, for example, Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016). Furthermore, it is unclear whether any other form of redress is available to the applicant company in the present situation at the national level. Without entering into an analysis of whether a claim for damages, lodged in civil contentious proceedings, or a request for reopening with analogous interpretation of the provisions governing criminal procedure could provide a way out in this situation, I find it of particular importance that Article 15 § 4 of the Slovenian Constitution expressly guarantees the right to obtain redress for any violation of human rights and fundamental freedoms. In the light of this provision, one would reasonably expect the legal system to put in place effective and straightforward legal avenues for victims, particularly in cases where the violation has been established by a judgment of this Court.

5. In the absence of any unequivocal provisions of domestic law providing for redress, the Court was called upon to rule on the applicant company’s claim for an award of EUR 105,000 in respect of pecuniary damage, which corresponds to the amount of the fine paid in the domestic proceedings. It is impossible to speculate on what the outcome of the proceedings before the Supreme Court would have been had the violation not occurred. Equally, the Court must refrain from any speculation on the hypothetical outcome of any reopening or redress proceedings had the domestic legal system provided for them. To put it simply: if in the present case the Supreme Court conducted evidentiary proceedings and established the relevant facts of the case autonomously, it may have found for the applicant company, but, equally, it could have dismissed the applicant company’s action and confirmed the fine as imposed by the Office. It could also have done something in between, e.g. reduced the impugned fine in the light of the circumstances of the case, which it would establish on its own.

6. In this respect, the Court’s position was similar to that of the national courts when called upon to decide cases where it is uncertain whether the claimant would earn or otherwise benefit from a certain amount, prize or profit without an illegal act or omission being committed by the defendant. In such situations, many legal systems have developed the “loss of real opportunities” doctrine (Fr. perte de chances réelles ), according to which the amount of damages to be awarded corresponds to the likely amount of the claimant’s gain had there been no violation. This doctrine has been accepted by the Court in a number of cases cited in the present judgment, a fact which constituted solid ground to guide the decision-making in our case.

7. Since the circumstances did not allow for any conclusion as to the probable outcome of the case at the domestic level had there been no violation, I believe it was fair and just to split the difference and to award the applicant company EUR 52,500. Going beyond that amount would have led the Court to go deeper into the facts and merits of a potential reopened case and to find itself in the position of first-instance judge, a role for which it is not suited.

8. I must admit that the position taken by the minority within the Chamber, namely that the applicant company should be awarded the full amount of the fine as pecuniary damages, is a tempting one. It is true that it was the respondent State which committed the violation and, likewise, that it is the respondent State which has failed to put in place an effective avenue of redress. However, this would entail a punitive element in the assessment of damages, which in turn would run contrary to the Court’s existing case-law. Pursuant to Article 30 of the Convention, any such decision could only be taken by the Grand Chamber. Furthermore, the damage suffered by the applicant company was the lost opportunity to benefit from a fair trial. This is a form of damage in itself, which has to be compensated in the present case.

9. In any event, if the applicant company wishes to make a claim for the remainder of the amount paid as a fine, it could consider the possibility of exploring uncertain avenues, including those indicated in point 4 of this concurring opinion. In this respect, Article 15 § 4 of the Constitution may serve as a good source of inspiration.