FIRST SECTION

DECISION

Application no. 19557/22 Marko LUKIĆ and KOVINAR D.O.O. against Slovenia

The European Court of Human Rights (First Section), sitting on 7 November 2023 as a Committee composed of:

Krzysztof Wojtyczek , President , Lətif Hüseynov, Ivana Jelić , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 19557/22) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 April 2022 by the applicant, Mr Marko Lukić, a Slovenian national, who was born in 1991 and lives in Slovenska Bistrica, and the applicant company, Kovinar d.o.o., a limited liability company registered in Slovenia, who were both represented by Mr V. Cugmas, a lawyer practising in Slovenske Konjice;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the proceedings in which the plaintiff succeeded to annul the contract by which the applicant company had sold a part of its own business share to the applicant. When lodging the action in 2016 and later during the proceedings, the plaintiff was represented by the law firm Č. On 10 January 2020 the Celje District Court issued a decision in favour of the plaintiff. Following unsuccessful appeals to the Celje High Court and the Supreme Court, the applicant and the applicant company lodged a constitutional complaint on 31 August 2021.

2. On 18 November 2021 the Constitutional Court informed the applicant and the applicant company of a change in the composition of the three ‑ judge panel which would consider their case and of the judges’ names. The composition included Judge R.Č., who had been appointed as a Constitutional Court judge on 28 September 2019. Judge R.Č. was one of the founders of and a previous employee in the law firm Č.

3. On 10 March 2022 the Constitutional Court in a three-judge panel, which included Judge R.Č., decided not to accept the applicant’s and the applicant company’s constitutional complaint for consideration.

4. The applicant and the applicant company complained under Article 6 § 1 of the Convention that their case had not been heard by an impartial tribunal because the Constitutional Court’s panel, which had decided their constitutional complaint, had included Judge R.Č. who had been linked to the law firm that had represented the plaintiff.

5 . They further complained under Articles 6, 11, 17 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention that the Celje District Court had departed from the established case-law.

THE COURT’S ASSESSMENT

6. The Court notes from the outset that it is unclear whether the two individuals who have signed the application form on behalf of the applicant company did in fact have the right to represent it in the proceedings before the Court. However, it does not consider it necessary to address this issue since the application has been lodged also by the applicant, a natural person, and the case is in any event inadmissible for the following reasons.

7. The general principles on the exhaustion of domestic remedies are set out in Sejdovic v. Italy ([GC], no. 56581/00, §§ 43-46, ECHR 2006 ‑ II) and Akdivar and Others v. Turkey ([GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996-IV). In Barberà, Messegué and Jabardo v. Spain (6 December 1988, § 59, Series A, no. 146) the Court found that whilst it had not been open to the applicant to complain about the participation of the judge before he was aware that that judge would participate, he was required to raise the issue when he knew of the judge’s involvement. In HIT d.d. Nova Gorica v. Slovenia (no. 50996/08, § 29, 5 June 2014), the Court took into account that the alleged breach of the principle of impartiality had occurred before the highest domestic judicial authority against whose decisions no appeal lied and therefore could not have been rectified at the domestic level ex post facto . It further noted that the constitutional complaint proceedings had been held in camera and without the attendance of the parties. As the applicant company had not been informed of the composition of the three-judge panel deciding on its case, it had no actual knowledge that the judge who had allegedly lacked impartiality participated in the proceedings. In the Court’s opinion it would have been excessive to require the applicant company to request a recusal of a judge on essentially precautionary grounds – that is on the likelihood, and not the certainty, that that judge would sit in its case.

8. In the present case, too, the alleged breach of the principle of impartiality occurred before the highest domestic judicial authority, namely the Constitutional Court, and the impugned proceedings were held in camera without the parties being present. However, contrary to the situation in HIT d.d. Nova Gorica v. Slovenia , the present applicant and the applicant company had been informed of the composition of the Constitutional Court’s panel, which had included the name of Judge R.Č., several months before the decision on their constitutional complaint was taken. The Court notes in this connection that sections 31 to 33 of the Constitutional Court Act (see HIT d.d. Nova Gorica , cited above, § 21) provide – and provided at the relevant time – that a Constitutional Court judge can be removed from the consideration of the case on the recusal grounds applicable to judicial proceedings, and that the parties can ask for such recusal by submitting a reasoned request to that effect. The applicant and the applicant company did not submit such a request, despite being informed of the participation of Judge R.Č. in their case in advance. They did not argue that they, for some reason, had been unable to do so. They raised this issue only in their application to the Court; that is after the Constitutional Court had dismissed their constitutional complaint.

9. Having regard to the applicant’s and the applicant company’s submissions and other documents in the case file, the Court finds no reason to consider that a request for recusal of the Constitutional Court judge, which is explicitly provided in the Constitutional Court Act, would not have had a reasonable prospect of success in the present case (compare also Kodrič v. Slovenia (dec.), no. 16472/20, 3 May 2022). As the applicant and the applicant company failed to use the available legal avenue to prevent the alleged violation, this complaint should be rejected for non ‑ exhaustion of domestic remedies (Article 35 § 1 of the Convention).

10. The applicant and the applicant company also raised other complaints under various Convention provisions (see paragraph 5 above). The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

11. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

Liv Tigerstedt Krzysztof Wojtyczek Deputy Registrar President