SECRETARIAT / SECRÉTARIAT
SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITÉ DES MINISTRES
Contact: John Darcy Tel: 03 88 41 31 56
Date: 13/06/2019 DH-DD(2019)667
Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1355h meeting (September 2019) (DH)
Reply from the authorities (11/06/2019) to a communication from a NGO (31/05/2019) in the Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia (Application No 47072/15).
Information made available under Rules 9.2 and 9.6 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
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Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1355e réunion (septembre 2019) (DH)
Réponse des autorités (11/06/2019) suite à une communication d’une ONG (31/05/2019) dans le groupe d’affaires Produkcija Plus Storitveno podjetje d.o.o. c. Slovénie (requête n° 47072/15) (Anglais uniquement).
Informations mises à disposition en vertu des Règles 9.2 et 9.6 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables. DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Slovenian Disability Rights Association Društvo za pravice invalidov Slovenije Linhartova 13 1000 Ljubljana [email protected]
COUNCIL OF EUROPE DEPARTMENT FOR THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS 67075 STRASBOURG CEDEX, FRANCE
30 May 2019
RULE 9.2 SUBMISSION TO THE COMMITTEE OF MINISTERS CONCERNING THE CASE PRODUKCIJA PLUS V. SLOVENIA, 47072/15, JUDGMENT DATE 23 OCT 2018:
THE CONTINUED LACK OF HEARINGS IN SLOVENIAN COURTS
1. Introduction
This communication is submitted in accordance with Rule 9(2) of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements with a view to assisting the Committee of Ministers in its evaluation of the execution of the judgment in the case of Produkcija Plus storitveno podjetje d.o.o. v. Slovenija, 47072/15, judgment date 23 Oct 2018.
The Slovenian Disability Rights Association is an NGO and a human rights watchdog. It was founded in 2012 to improve the human rights situation in Slovenia through research, public advocacy, monitoring, education, and human rights promotion. Primarily it aimed at improving the situation in the area of rights of persons with disabilities, but over the past years, it has broadened its field of work. The association and its members have been victims DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
of the lack of court hearings and have an interest in the proper execution of this judgment. The submission is supported by six law professors.
This case concerns a violation of the applicant’s right to a fair trial (violation of Article 6§1). The European Court noted that the Supreme Court was the first and only tribunal to examine the applicant’s case. Although the applicant expressly requested that a hearing be held, the Supreme Court neither acknowledged the request nor gave any reasons for not granting it.
A few months before the Produkcija Plus v. Slovenia judgment, the European Court issued a judgment in another case in which Slovenian courts refused to hold a hearing although the applicant had expressly requested it (Mirovni inštitut v. Slovenia, 32303/13, judgment of 13 March 2018, violation of Article 6§1).
2. The courts have not changed their practices and still refuse to hold public hearings
With this letter, we wish to draw the Council of Ministers’ attention to the fact that both the Supreme Court and the Administrative Court have not changed their practices since the Produkcija Plus and the Mirovni inštitut decisions. These two courts still refuse to hold hearings when the parties before the courts request the hearings. We collected some evidence. An attorney asked the Administrative Court’s Maribor unit to disclose how many hearings it had over the past four years. The court responded that it held hearings in only one case, but even in this case, the hearing was not open to the public due to the protection of the child’s rights (Administrative Court letters Su 677/2018 of 28 Nov 2018 and Su 677/2018 of 3 Dec 2018). The court thus held zero public hearings in four years.
Moreover, when parties request hearings, and the Administrative Court refuses to hold the hearing, and the parties appeal to the Supreme Court and cite the Produkcija Plus or the Mirovni inštitut decisions, the Supreme Court continuously refuses to grant these appeals (see, for example, the decision of the Supreme Court X DoR 93/2018 of 4 Jul 2018 and judgment of the Administrative Court I U 1795/2016 of 4 Apr 2018; and the decision of the Supreme Court X DoR 119/2018-3 of 29 Aug 2018 and judgment of the Administrative Court I U 1131/2017-22 of 9 May 2018).
Slovenian Administrative Court and Supreme Court continue to refuse to hold hearings, and they usually justify the rejections of the requests with the same sentence: "The court rejects the request for the hearing because the factual issues are undisputed and there is no need to hold a hearing on matters of law.” (see, for example, the decisions mentioned in the preceding paragraph)
When the courts do not reject the requests for hearings with the justification that the factual issues are undisputed, they reject it by claiming that holding a hearing would increase the costs, prolong the duration of the court procedures, or that all the facts have already been proven, and the hearing would not contribute to the decision (see, for example, three DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Administrative Court election disputes of 2019: judgment I U 2590/2018-19 of 25 Jan 2019, judgment III U 8/2019-43 of 05 Feb 2019, judgment II U 30/2019-9 of 11 Feb 2019).
3. European Court: “an oral and public hearing constitutes a fundamental principle”
In the Produkcija Plus decision, the Court repeated that "an oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1. (Produkcija Plus, § 53)
In many of its decisions, the European Court stressed the importance of a public and oral hearing: "The Court reiterates that, in proceedings before a court of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002-V, with further references). In proceedings before two instances, at least one instance must, in general, provide such a hearing if no such exceptional circumstances are at hand (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002). This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, an oral hearing in public contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see Mehmet Emin Şimşek v. Turkey, no. 5488/05, § 28, 28 February 2012, and Szücs v. Austria, 24 November 1997, § 42).” (Mirovni inštitut, § 36)
The Convention only exceptionally allows the oral hearing not to take place: "The exceptional character of the circumstances that may justify dispensing with an oral hearing in proceedings concerning a “civil” right essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations (see Madaus v. Germany, no. 44164/14, § 23, 9 June 2016, and also Jussila v. Finland [GC], no. 73053/01, § 42, ECHR 2006-XIV, which concerned the criminal limb of Article 6 § 1 of the Convention). This does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The Court has accepted exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.), no. 42057/98, 5 September 2002). There may be proceedings in which an oral hearing may not be required: for example, where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties’ submissions and other written materials (see Jussila, cited above, § 41, with reference to Döry v. Sweden, no. 28394/95, § 37, 12 November 2002, which concerned the civil limb of Article 6 § 1 of the Convention)." (Mirovni inštitut, § 38)
4. The authorities show a clear lack of commitment to execute the judgment DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Several statements and actions by the Supreme Court and the Ministry of Justice show the lack of commitment to execute the Produkcija Plus judgment and other ECHR judgments.
On 24 Oct 2018, the Supreme Court published on its website, and sent to the media, an unsigned statement saying that the Supreme Court would respect only the ECHR rulings which it finds persuasive.1 Over 25 law professors2 criticised the Supreme Court statement, which drew international attention.3 Five days later the Supreme Court retracted the unsigned statement4 but until today it still refuses to disclose who approved or published the statement. Judge Damijan Florjančič, still the president of the Supreme Court, Ms Tina Brecelj, still the Public Relations officer, and Judges Nina Betetto and dr. Miodrag Đorđević, the previous and the new vice-president of the Supreme Court, refuse to disclose the information.
On that same day, 24 Oct 2018, the Ministry of Justice organised a “school for judges” (Gospodarskopravna šola). At around 4.00 pm, Franc Testen, the former president of the Supreme Court and Constitutional Court, who regularly lectures to the judges, told to a group of about 100 judges: “If a party before the court refers to the ECHR judgment, you can always write in the judgment that the ECHR case differs from the present case” (we have a signed statement by a participant on file). Judges are advised not to follow the ECHR.
At the same event, the Supreme Court judge and the head of the Corporate Section of the Supreme Court Vladimir Balažic proudly told to the same group of judges that, following the ECHR judgment Koprivnikar v. Slovenia, the Supreme Court had to decide again in the case and it knowingly ruled contrary to the ECHR judgments (we have a signed statement by a participant on file).
After the Produkcija Plus and Mirovni inštitut judgments became public, none of the two courts - the Supreme Court or the Administrative court - stated that they would hold public and oral hearings despite being publicly asked to commit to public hearings. In March 2018, after the publication of the Mirovni inštitut judgment, a law professor Jurij Toplak said that the Administrative Court president Jasna Šegan "should go".5 Šegan published a press release stating that Slovenian legislation allows the court not to hold public hearings
1 “Supreme Court not convinced by ECHR's ruling on Pro Plus”, STA, 24 Oct 2018. https://english.sta.si/ 2566864/supreme-court-not-convinced-by-echrs-ruling-on-pro-plus 2 “Criticism after Supreme Court challenges European Court of Human Rights”, STA, 26 Oct 2018. https:// english.sta.si/2567891/criticism-after-supreme-court-challenges-european-court-of-human-rights 3 Avbelj, Matej. Slovenia’s Supreme Court Rejects the European Court of Human Rights. Verfassungsblog, 26 Oct 2018. https://verfassungsblog.de/slovenias-supreme-court-rejects-the-european-court-of-human-rights/ 4 “Supreme Court retracts ECHR challenge amid public outcry”, STA, 29 Oct 2018. https://english.sta.si/ 2568745/supreme-court-retracts-echr-challenge-amid-public-outcry 5 “ECHR: Slovenia violated the right to fair trial (ESČP: Slovenija kršila pravico do poštenega sojenja)” Siol, 13 Mar 2018, https://siol.net/novice/slovenija/escp-slovenija-mirovnemu-institutu-krsila-pravico-do- postenega-sojenja-462300 DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
and consequently there can be no violation of the fair trial.6 Slovenia has no mechanism to tackle the courts’ lack of will to hold court hearings.
The Judicial Council, the body which nominates judges and the presidents of the courts, does not hold public meetings either. It does not allow either the public or the researchers to observe the meetings. In February 2019, law professors Jernej Letnar Černič and Jurij Toplak, asked the Judicial Council if they can observe one of the Council’s meetings for research purposes. The Council denied their request (documents available upon request).
5. Recommendations
We kindly ask the Council of Ministers not to close this case until the Supreme Court and the Administrative Court start holding hearings.
Slovenia should submit to the Council of Ministers the data: how many court hearings has Supreme Court held in 2018 since the Produkcija Plus judgment; how many court hearings has each of the four units (Ljubljana, Maribor, Celje, Nova Gorica) of the Administrative Court held in 2018 and 2019; how many parties have requested the hearings before the Supreme Court or the Administrative Court, and how many hearings have these two courts held; how many times the Supreme Court had been asked by appellants to find a violation in the Administrative Court’s refusal to hold a public hearing and how many times the Court granted or denied the appeals on this point. Reliable and regular data is essential both for effective policy and tracking progress towards fair trial.
Slovenia should amend the legislation, if the legislation is the problem, as the president of the Administrative Court suggests. We, however, believe that the legislation is not the problem and the president of the Administrative Court is the problem. Slovenia should therefore either amend the legislation or replace the president of the Administrative Court.
Slovenia should disclose who published or approved the statement on the Supreme Court website following the Produkcija Plus judgment.
Slovenia should consider general measures including disciplinary measures for the judges who refuse to hold public hearings. Slovenia should demonstrate that these measures have been applied.
In 2018 Slovenia submitted to the Council of Ministers that in regards to holding public hearings “the Administrative Court’s case-law has improved. … To illustrate now Convention compliant case-law, the authorities would like to note that the applicant lodged an action in 2017 before the Administrative Court against the Ministry’s decision in another set of proceedings. On 14 June 2018 the Administrative Court held an oral hearing in these proceedings.”. Slovenia should demonstrate that the two courts (Supreme Court and Administrative Court) hold hearings also in cases when they are not instructed to do so by
6 “The Administrative Court does not agree with the ECHR (Upravno sodišče se ne strinja z ESČP)” Dnevnik, STA, 16 Mar 2018, https://www.dnevnik.si/1042814972 DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
some other court but also when the case or the party requesting the hearing appears before them for the first time.
The Supreme Court continues to not hold hearings and it does not find violations when the Administrative Court refuses to hold hearings. The Produkcija Plus judgment will only be implemented when Slovenian courts, in which the European Court found violations, will actually start holding public hearings.
Sincerely Yours,
Slovenian Disability Rights Association Sebastjan Kamenik, president
Prof. Dr. Jurij Toplak University of Maribor, Faculty of Law
Izr. Prof. Dr. Matej Avbelj New University, European Faculty of Law
Izr. Prof. Dr. Jernej Letnar Černič New University, European Faculty of Law
Izr. Prof. Dr. Andraž Teršek University of Primorska
Izr. Prof. Dr. Borut Holcman University of Maribor, Faculty of Law
Izr. Prof. Dr. Boštjan Brezovnik University of Maribor, Faculty of Law DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. DH-DD(2019)667: Rules 9.2 and 9.6 Reply from Slovenia to a communication from a NGO in Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.