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Datum rozhodnutí
22.11.2022
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FIRST SECTION

DECISION

Application no. 32737/21
Boštjan Marko TURK
against Slovenia

The European Court of Human Rights (First Section), sitting on 22 November 2022 as a Committee composed of:

Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 32737/21) 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 18 June 2021 by a Slovenian national, Mr Boštjan Marko Turk, born in 1967 and living in Ljubljana (“the applicant”) who was represented by Mr I. Marinšek, a lawyer practising in Maribor;

the decision to give notice of the complaint under Article 6 § 1 concerning the length of the proceedings before the Constitutional Court to the Slovenian Government (“the Government”), represented by their Agent, Mrs A. Vran, Senior State Attorney, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the length of the proceedings before the Constitutional Court.

2. The proceedings originated in the criminal charge of defamation brought by a private prosecutor, J.P., against the applicant. The criminal charge related to an article in which the applicant criticised J.P. On 4 September 2014 the Ljubljana District Court found the applicant guilty of defamation and gave him a two-month suspended prison sentence. The Ljubljana Higher Court dismissed his appeal on 14 May 2015. On 18 February 2016 the Supreme Court upheld the applicant’s application for the protection of legality and acquitted him.

3. On 13 May 2016 J.P. lodged a constitutional complaint against the Supreme Court’s judgment. On 25 February 2020 the Constitutional Court decided to accept the complaint for consideration.

4. On 18 March 2021 the Constitutional Court decided in favour of J.P., finding that his right to dignity and protection of his reputation had been breached as a result of the Supreme Court’s judgment. In its view, the Supreme Court had failed to evaluate the case in conformity with the Constitution and did not attach sufficient weight to the aforementioned rights of J.P. Referring to the presumption of innocence and the principle ne bis in idem, the Constitutional Court issued a decision of a declaratory nature and did not quash the Supreme Court’s judgment. In this connection it relied on its established case-law pursuant to which the Constitutional Court could not interfere with the final judgment acquitting the defendant or discontinuing the criminal proceedings and could only issue a declaratory decision in the case of a successful constitutional complaint by an injured party.

5. On 20 April 2021 the Constitutional Court’s decision was served on the applicant.

6. The applicant complained that the length of the proceedings before the Constitutional Court had been unreasonable and thus in breach of Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

7. The Government objected, inter alia, that the proceedings before the Constitutional Court had not concerned a criminal charge against the applicant and that therefore he could not complain of a violation of his right to a trial within a reasonable time with respect to these proceedings.

8. The applicant considered that Article 6 § 1 was applicable to the Constitutional Court proceedings under its “criminal” limb.

9. According to the Court’s well-established case-law on this issue, the relevant test in determining whether Constitutional Court proceedings may be taken into account in assessing the reasonableness of the length of proceedings under Article 6 § 1 is whether the result of Constitutional Court proceedings is capable of affecting the outcome of the dispute before the ordinary courts (see Gast and Popp v. Germany, no. 29357/95, § 64, ECHR 2000II).

10. As regards the “criminal” limb of Article 6 § 1, the Court observes that the applicant’s acquittal could not have been challenged before the Constitutional Court proceedings, which were aimed merely at determining whether the injured party’s rights had been respected. It follows from the Constitutional Court’s decision that it confined itself to identifying the provisions of the Constitution that had been breached at the detriment of the injured party and did – and could – not quash the impugned judgment or in any way interfere with the applicant’s final acquittal (contrast, Gast and Popp, cited above, § 65, and Caldas Ramirez de Arrellano v. Spain (dec.), no. 68874/01, ECHR 2003-I). Article 6 § 1 is therefore not applicable under its “criminal” head.             

11. The applicant alleged that Article 6 § 1 was applicable to the Constitutional Court proceedings also under its “civil” head. He submitted in this connection that as a consequence of the Constitutional Court proceedings he “should be liable and need to pay damages”, that he “had to refund the court costs to the other party in a separate civil case”, that “[the] courts [would] probably rule against the applicant”, and that the Constitutional Court’s decision had affected his reputation.

12. General principles regarding applicability of the “civil” limb of Article 6 § 1 were summarised in, inter alia, Denisov v. Ukraine ([GC], no. 76639/11, §§ 44-46, 25 September 2018). The Court reiterates, in particular, that under its settled case-law, Article 6 § 1 in its “civil” limb covers all proceedings the result of which is decisive for civil rights and obligations (see Emine Araç v. Turkey, no. 9907/02, § 16, ECHR 2008). The result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Denisov¸ cited above § 44, and Bozhilov v. Bulgaria (dec.), no. 41978/98, 22 November 2001, and the case-law cited therein).

13. In the present case, the applicant provided no concrete arguments, let alone evidence, with a view to substantiating that the impugned Constitutional Court’s decision affected his civil rights and obligations which – as he seemed to suggest – were and possibly still are a subject of civil proceedings. In the absence of sufficient information concerning those civil proceedings against the applicant, the Court is not in position to draw the conclusion that the outcome of the impugned proceedings before the Constitutional Court had a direct bearing on them. Therefore Article 6 § 1 is also not applicable under its “civil” head to the applicant’s complaint.

14. In view of the foregoing the Court finds that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 December 2022.

Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President