Reference no.:
In accordance with the established constitutional case law, from Article 22 of the Constitution there follows, inter alia, the prohibition of judicial arbitrariness. According to the established constitutional case law, this constitutional procedural safeguard is violated only when a court decision is manifestly erroneous. In this respect, the essential question in the case at issue is whether the Supreme Court acted arbitrarily when it concluded where the disputed email was saved on the basis of the circumstances established in the procedure for adopting a decision, the reasons for which were stated in the decision of the Agency of the Republic of Slovenia for the Protection of Competition. The Supreme Court concluded that the disputed email was not saved merely on the server of a third person on the basis of the facts and circumstances regarding the course of the search as established and explained in the decision of the Agency. The Supreme Court based its conclusion on individual findings of fact that the Agency stated in relation to acquiring the disputed email in point 7 of the reasoning of its decision. In the assessment of the Constitutional Court, these reasons entail reasonable grounds for the further conclusion that the seized email was (also) saved on a local computer. In light of the above, the allegation that the decision of the Supreme Court was arbitrary is not justified.
The Constitutional Court has already adopted the position that in cases where the appellate court overturns or supplements the state of the facts as established by the first instance court, this does not necessarily entail a violation of Article 25 of the Constitution. The constitutionally protected core of the right to a legal remedy protects parties to proceedings from situations in which the appellate court would decide on its own and for the first time on issues that entail independent legal wholes and were not, from the actual or legal perspective, a subject of review by the first instance court. This means that Article 25 of the Constitution does not prevent the appellate court from making any conclusions regarding questions of fact. The question of whether acquiring the disputed email entailed an investigation of a third person according to Article 33 of the Prevention of Restriction of Competition Act is a question of law that was already considered by the Agency from both factual and legal perspectives following the complainant’s objection. The circumstance that the Agency dismissed the objection regarding the investigation of the third person by providing different argumentation than the Supreme Court cannot be decisive in the case at issue. The Supreme Court therefore did not act contrary to the safeguard determined by Article 25 of the Constitution. 
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Type of procedure:
constitutional complaint
Type of act:
individual act
Unior, d. d., Zreče
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