Up-191/16, Up-725/16, Up-154/17, Up-756/17, Up-449/18

Reference no.:
Up-191/16, Up-725/16, Up-154/17, Up-756/17, Up-449/18
Abstract:
In the complainant’s appeal, he explicitly claimed that it is not evident from the order on the extension of the measure on which fact the court based its conclusion that the complainant gained an unlawful pecuniary benefit. When deciding on the appeal, the appellate court failed to respond to these allegations. It thereby violated the complainant's right to a reasoned judicial decision determined by Article 22 of the Constitution. In the appeal, the complainant explicitly claimed that the challenged order does not contain reasons that consider the principle of proportionality as determined by Article 2 of the Constitution, i.e. the question of whether the proposed measure is proportionate to the value of the alleged pecuniary benefit; therefore, it cannot be reviewed. When deciding on the appeal, the second instance court failed to respond to these allegations. It thereby violated the complainant's right to a reasoned judicial decision determined by Article 22 of the Constitution. The first instance court failed to explain why (considering the fact that it follows from the concrete state of the facts stated in the search order and from the indictment that the recipient of the pecuniary benefit is a company of which the complainant is the director and sole partner, while the transfer of such benefit from the company to the complainant is not described) the object that was temporarily secured is the complainant’s property. It thereby violated the complainant's right to a reasoned judicial decision determined by Article 22 of the Constitution. The appellate court did, however, assess the allegation regarding the omission of the mentioned reasons but failed to remedy such violation, and thereby also that court violated the mentioned right.
Note:
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Document in PDF:
Type of procedure:
constitutional complaint constitutional complaint
Type of act:
individual act individual act
Applicant:
Sali Husein, Maribor
Date of application:
01.03.2016
Date of decision:
09.12.2019
Type of decision adopted:
decision
Outcome of proceedings:
establishment of a human right violation establishment of a human right violation establishment of a human right violation
Document:
AN03971