The deprivation of the applicant’s right to attend a hearing has violated his right to equality of arms and the right to be heard


Prebil v. Slovenia 19.03.2019 (no. 29278/16)

see here


Deprivation of of membership of a company member by the Board of Directors and dismissal  without notice and in absentia. Ratification of a judgment by national courts. Refusal of the Courts for the applicant’s participation in the hearing. The European Court of Human Rights held that the applicant’s non-participation in the proceedings concerning his dismissal from a board member of a company violated the fair balance between the parties and affected the applicant’s fundamental right to a fair trial and its special aspects and more specifically of the adverserial hearing and the equality of arms. Infringement of Article 6 (1) of the ECHR.


Article 6 par.1


The applicant, Andrej Prebil, is a Slovenian national who was born in 1974 and lives in Ljubljana.
The case concerned Mr Prebil’s complaint about court proceedings dismissing him from his position
as a supervisory board member of company A.

In May 2014 the P. company, which held a 91.42% share in the A. company, filed a motion to deprive
Mr Prebil and another supervisory board member of their membership. They had allegedly been
involved in a scuffle between board members, preventing one of them from leaving a session in
order to maintain the required quorum. Company P. argued that their conduct was unacceptable
and constituted a well-founded reason for them to be dismissed immediately, without notifying
them and without holding a hearing.

In June 2014 the Ljubljana District Court upheld the motion. It found that the conduct of the two
supervisory board members had been harmful to the A. company’s functioning and that the decision
should therefore be effective immediately.

Mr Prebil lodged an appeal, arguing that he had been unlawfully denied the opportunity to
participate in the proceedings. Shortly afterwards, company P. informed the court that company A.
had appointed two new members to replace Mr Prebil and the other supervisory board member. In
January 2015 the Ljubljana Higher Court rejected Mr Prebil’s appeal, finding that he could not have
had any legal interest in the outcome of the proceedings, because even if he had succeeded in the
appeal proceedings he could not have obtained reinstatement in his previous position.

In November 2015 the Constitutional Court decided not to accept Mr Prebil’s constitutional

Relying in particular on Article 6 § 1 (right to a fair hearing), Mr Prebil complained that he had been
unable to participate in the proceedings which had deprived him of his supervisory board


The Court reiterates that the principle of fair hearing and the principle of equality of arms, which are closely linked, are fundamental components of the concept of “good administration of justice” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be able to analyze its case under conditions that do not place him/her  at a substantial disadvantage over his/her opponent or his/her rivals.

In the present case, the Ljubljana District Court upheld the application of the P. company,  which contained actual allegations concerning the applicant’s conduct, depriving the applicant of his position as a member of the board of directors. It has never done so to give the applicant the opportunity to challenge the claims of the company P. In the light of the domestic law that was applied, the Court can not distinguish the correct legal basis on which the national court has decided to waive the principle to be heard in the present case. The Court understands that the non-disclosure to the applicant and the non-participation in the proceeding could be justified in order to save time and speed up the process. However, as it is apparent from its case-law, the Court attaches great importance to that aim, but does not justify a breach of such a fundamental principle, such as the right to be heard and the principle of equality of arms.

The Court also notes that the applicant was in principle entitled to appeal against the Ljubljana District Court;s appeal and appealed against that decision. However, the Ljubljana Court of Appeal did not examine the applicant’s appeal on the merits, finding that he could not have a legitimate interest in the outcome of the proceedings because in the meantime, company A had appointed new members to the supervisory board to replace him. The Constitutional Court also rejected its constitutional appeal without considering the merits of its constitutional complaint.

In view of the above, the ECtHR concludes that in this case the principle of fair hearing and the principle of equality of arms have not been respected. In view of the fact that the applicant had no opportunity to participate substantively in the proceedings against him, the Court considers that the fair balance between the parties has been affected to such an extent that the very substance of the applicant’s right to a fair trial has been compromised.

There has therefore been a violation of Article 6 § 1 of the ECHR. In view of this conclusion, the Court does not consider it necessary to examine the present case also from the point of view of the right to a public hearing as the applicant alledges.

Just Satisfaction (Article 41)

The Court has held that Slovenia must pay to the applicant  8.000 euros (non-pecuniary damage) and 2.560 euros  (costs and expenses)( editing).


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