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Cite as: [2011] ECHR 836
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
57655/08
by Uroš SUHADOLC
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 17 May 2011 as a Chamber composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having regard to the above application lodged on 24 November 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Uroš Suhadolc, is a Slovenian national who was born in 1961 and lives in TrZič. He was represented before the Court by Mr L. Poljanec from Slovenska Bistrica. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Zitko, State Attorney.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On the evening of 12 May 2006 the applicant was driving a car near the town of Kranjska Gora, where a police officer using a laser speed measurement device identified his speed as 76 km/h. The speed limit was 50 km/h. The applicant’s car was stopped and he was asked to undergo a breath alcohol test. Two police officers conducted the procedure. The electronic device for measuring the level of alcohol in the applicant’s breath gave a reading of 0.39 mg/l. The applicant was informed that he was charged with committing two road traffic offences under the Road Traffic Safety Act, namely the offences of driving in excess of the speed limit and driving under the influence of alcohol, with a blood alcohol content of at least 0.34 milligrams of alcohol in one litre of breath. He was barred from continuing to drive. Two reports were prepared on the spot. A report concerning the measurement of the applicant’s speed contained, amongst other information, the specification of the speed measuring device, the date, time and place of the measurement and the results captured by the device, as well as the name of the officer using the device and the identification number of the certificate proving his competence to use the device. The report concerning the breath alcohol test contained, amongst other information, the specification of the device used and the results, and noted that the applicant had agreed with the results. The applicant also signed the report and was given a copy of it. Lastly, the applicant was issued with a written notice indicating the charges and inviting him to submit a written statement in reply within five days.
On 16 May 2006 the applicant submitted a written statement in which he denied committing any offence. He argued that the speed measuring device should not have been used in the dark and that his vehicle did not have the capacity to reach the speed shown by the device. The police must have confused his car with another vehicle or misused the speed measuring device. He further argued that there had been no road signs indicating the speed limit on the road where he had been driving. Moreover, the applicant disputed the credibility of the breath alcohol test and alleged that it had been exposed to factors whose presence or functioning could have interfered with the results, such as the police radio.
On 8 August 2006 the Kranjska Gora Police issued a decision. The applicant was found to have committed the two offences and was given a fine – combined to cover both offences – of 100,000 Slovenian tolars (SIT) (approximately 400 euros (EUR)) and seven penalty points. The decision referred to the two police reports, which indicated the results of the speed measurement and the breath alcohol test. It rejected the applicant’s arguments concerning the misuse of the speed measuring device, noting that the device had been designed in such a way that in the event of any interference, the wrong position being used or a loss of signal no result would be shown. It also referred to the confirmation of the Slovenian Metrology Institute that the type of device in question complied with the relevant technical requirements. As regards the breathalyser, the decision mentioned that special tests had been carried out at the request of the Ministry of Interior to verify the effect of mobile phones and radio devices on breathalyser results. The tests proved that there was no such effect. As regards the applicant’s argument concerning the lack of a road sign showing the speed limit, the police explained that the speed limit of 50 km/h applied by virtue of the general rule concerning the speed limit in inhabited areas. Finally, the applicant was ordered to pay approximately 20,000 SIT (approximately EUR 80) for the costs of the proceedings.
On 12 September 2006 the applicant lodged a request for judicial review. He alleged that only a judge could have validly convicted him. He further complained that the time-limit for the submission of the request for judicial review was too short. He denied committing the offences and demanded that the police prove their allegations. In particular, he asked the police to prove that it had been his speed captured by the device, and to supply documents demonstrating the credibility of the laser machine’s results and the method used to measure the level of alcohol in his breath, as well the competence of the officer to handle the speed measuring device.
The Jesenice Local Court delivered a judgment rejecting the request as unsubstantiated on 15 April 2008. The court noted at the outset that the applicant had lodged a “standard” request for judicial review. It found that the procedure had not infringed applicable legislation and, in particular, that the facts had been properly established by the police officers. The court referred to the two reports prepared by the officers on the spot, a certificate which demonstrated that the respective police officer had undergone appropriate professional training for the use of the laser device in question and the confirmation of the Slovenian Metrology Institute that this type of device complied with the relevant technical requirements. As regards the breath alcohol test, the court noted that the applicant’s conviction for driving under the influence of alcohol had been based on the report indicating the results of the breath alcohol test, which had been signed by the applicant without comment. Since the applicant had agreed with the report, no further steps had been taken by the police to establish the applicant’s level of intoxication. Finally, the court also found that the impugned decision had not violated the applicant’s constitutional rights, as it had been issued in accordance with applicable law and judicial review had been available to him. The court also rejected his complaint concerning the eight-day time-limit, stating that this was a statutory time-limit of which he had been informed in the police’s decision. The applicant was ordered to pay EUR 90 for the costs of the proceedings.
On 9 May 2008 the applicant lodged a constitutional appeal, alleging a violation of fair trial guarantees – in particular, that any fine should be imposed by a judicial and not by a police procedure; that he had been charged and convicted by the police; and that the guarantees enshrined in Articles 23, 24 and 29 of the Constitution had not been provided to him. In addition, he complained that no ordinary appeal lay against the local court’s judgement.
The Constitutional Court dismissed the applicant’s constitutional appeal on 26 May 2008. It relied on point three of the first paragraph of section 55b of the Constitutional Court Act, read together with point four of the second paragraph of section 55a of that Act (see “Relevant domestic law and practice” below). The Constitutional Court’s decision was served on the applicant on 6 June 2008.
B. Relevant domestic law and practice
1. The Constitution
Article 23
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
Article 24
“Court hearings shall be public. Judgments shall be pronounced publicly. Exceptions shall be provided by law.”
Article 29
“Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights:
- the right to have adequate time and facilities to prepare his defence;
- the right to be present at his trial and to conduct his own defence or to be defended by a legal representative;
- the right to present all evidence to his benefit;
- the right not to incriminate himself or his relatives or those close to him, and to not admit [his] guilt.”
2. The Minor Offences Act 2002
Prior to 1 January 2005, proceedings concerning regulatory offences were regulated by the Minor Offences Act 1983 (Zakon o prekrških, Official Gazette of the Socialist Republic of Slovenia no. 25/1983, as amended). Under that law, proceedings were conducted by judges handling minor offences. Appeals against their decisions were dealt with by judicial panels handling minor offences.
On 18 December 2002 a new Minor Offences Act (hereinafter referred to as “the MOA”, Official Gazette no. 7/2003) was enacted by the Slovenian Parliament. It came into force on 7 February 2003 and began to be implemented from 1 January 2005. As stated in the travaux préparatoires to this law, the reform was considered necessary because of the heavy backlogs faced by the courts and the need to simplify and expedite the processing of cases concerning minor offences.
Under section 6 of the MOA, an “offence” means any act that is against the law, or is in breach of a Government regulation or local self-government ordinance, and which is, as such, designated as a punishable minor offence. While the MOA contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence, it also refers to provisions of the Penal Code, which are to be applied by analogy in minor offence procedure. In addition, the principle of the presumption of innocence is included in the MOA, which in section 7 states that “persons accused of having committed minor offences are innocent until their responsibility is established by a final decision”.
The MOA provides for sanctions in respect of minor offences, namely a fine, a warning, penalty points (which can lead to withdrawal of a driving licence), a ban on driving, expulsion of a foreigner from Slovenia and seizure of items (sections 17-25 of the MOA).
(a) Summary procedure
The significant difference between the old and the new system introduced by the MOA is the establishment of a summary procedure (hitri postopek), which is conducted by administrative authorities such as the police or inspectorates.
An administrative authority may start a procedure upon its own motion or upon request. If a defendant has not had an opportunity to reply to the charges when the offence was recorded or considered by the authority, the latter, before issuing any decision, shall invite the defendant to submit a written reply. The decision should include a short reference to the defendant’s statement and state the facts and evidence on which it is based. It must also include a warning as to the possibility of imprisonment for non-payment (sections 49-58).
Summary procedure is used as a rule for minor offences, subject to the following exceptions: cases where another person has been injured; offences where an additional sentence can be imposed; cases where an additional penalty of a driving ban is envisaged; cases where a pecuniary claim or a minor is involved, or which concern military duties; or cases where an additional sentence of penalty points which are sufficient to lead to the withdrawal of a driving licence is envisaged (section 52 of the MOA). These cases are dealt with by courts handling minor offences in ordinary judicial proceedings (redni sodni postopek) in which the Criminal Procedure Act is applied by analogy.
(b) Request for judicial review
After the summary procedure, judicial review is available. An application for such review is dealt with by a single judge at a court handling minor offences, which is normally a local court (sections 59-66 of the MOA).
A defendant has the right to lodge an application for judicial review within eight days from the receipt of an administrative authority’s decision concerning a minor offence. By lodging such an application, a defendant renounces the opportunity of paying a reduced fine. In addition, an application, in principle, suspends payment of the fine.
An application can be lodged on standard appeal grounds (a violation of procedural or substantive law, erroneous or insufficient establishment of facts, and/or a challenge to the sanction). It should be filed with the administrative authority that issued the relevant decision. If the authority considers that the request is well-founded, it may annul or change its decision. If not, it sends the file and any additional evidence to the local court (section 63 of the MOA).
A judge can decide on the admissibility and merits of the application on the basis of the file received from the administrative authority. Under section 65 of the MOA, the judge may reject the application in a judgment, if there is no need for further fact-finding and if the grounds for appeal are not established. This is done without hearing the applicant. If the judge finds that the facts were correctly established but that a different sanction should be imposed, he may uphold the application in part and modify the administrative authority’s decision accordingly. If a violation of procedural or substantive law is established or if further fact-finding is required, the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties. In these judicial proceedings, the defendant has a right to be heard orally by the judge, to adduce evidence, to make procedural requests and to appeal against the judgment (sections 67-168 of the MOA).
An appeal to the Higher Court can be lodged on all grounds against a first-instance court’s decision declaring an application inadmissible and against a judgment by which the administrative authority’s decision has been modified to the defendant’s disadvantage following additional fact-finding. In addition, an appeal can be lodged on all grounds, except factual ones, against a decision imposing a fine higher than the minimum amount or ordering a seizure of items worth more than 400 euros.
3. The Road Traffic Safety Act
The relevant provisions of the Road Traffic Safety Act (Zakon o varnosti cestnega prometa, Official Gazette no. 3/2004, implemented from 1 January 2005) read as follows:
Section 32
“(1) The speed limit shall be:
– 50 km/h – on roads in inhabited areas;
...
(7) A driver who exceeds the speed limit determined by the general rule or road signs on a road in an inhabited area, shall be liable for the following fine:
...
(c) if he exceeds the speed limit by more than 20 but less than 30 km/h, - 60.000 SIT. The driver shall also be given 3 penalty points;
...”
Section 130
“...
(2) All other drivers may have a maximum of 0.50 grams of alcohol per kilogram in their blood or 0.24 milligrams of alcohol in one litre of breath....
...
(4) A driver... who violates paragraph 2 of this section, shall be punished with a fine [as follows]:
...
(b) if he has more than 0.50 but less than 0.80 grams of alcohol per kilogram of blood or more than 0.24 but less than 0.38 milligrams of alcohol in one litre of breath, with a minimum [fine of] 40,000 SIT. ... The driver ... shall also be given 4 penalty points.
...”
Section 235
“(1) An administrative body can also decide in summary proceedings on a minor offence for which, apart from a fine, a sentence of a maximum of five penalty points is prescribed [for each offence]...
...
(3) A court ... shall declare invalid the driving licence of a driver who, on the basis of the decision of the administrative body, reaches or exceeds eighteen penalty points.
...”
4. The Constitutional Court Act
The Constitutional Court Act (Zakon o ustavnem sodišču, Official Gazette no. 15/1994) was adopted on 8 March 1994. It stated that a constitutional appeal was inadmissible if it did not concern an important legal issue and if an alleged violation of human rights or fundamental freedoms did not have significant consequences for the complainant.
On 30 May 2007 the Slovenian Parliament adopted an amendment to the Constitutional Court Act (Official Gazette no. 51/2007, hereinafter referred as “the Amendment”) which limited the availability of constitutional appeals by, inter alia, excluding the possibility of challenging decisions issued in proceedings concerning minor offences. However, such cases could, exceptionally, be examined if they raised important constitutional questions extending beyond a specific case. The Amendment came into force on 15 July 2007. The relevant provisions of the amended Act (Official Gazette no. 64/2007 – official consolidated version) read as follows:
Section 50
“(1) A constitutional appeal alleging a violation of human rights or fundamental freedoms may, under the conditions determined by this Act, be lodged against individual acts by which state authorities, local authorities, or holders of public power have decided on rights, obligations, or legal interests of individuals or legal entities.
...”
Section 54
“(1) The Constitutional Court shall decide in a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional appeal.”
Section 55a
“(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant.
(2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions:
- issued in small-claims disputes ...;
- concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal;
- issued in trespass to property disputes;
- issued in minor offence cases.
(3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.”
Section 55b
“(1) A constitutional appeal shall be rejected:
- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;
- if the complainant does not have a legal interest in a decision on the constitutional appeal;
- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;
- if it was not lodged in due time;
...
(2) A constitutional appeal shall be accepted for consideration:
- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or
- if it concerns an important constitutional question which goes beyond the importance of the actual case.
...”
Section 38 of the Amendment, concerning transitional rules, provides so far as relevant:
“(1) Proceedings which are pending at the time of entry into force of this Amendment shall be continued according to the provisions of the Amendment.
...
(3) If the Constitutional Court has declared a constitutional appeal admissible before the entry into force of this Amendment, it shall decide [the case] regardless of Articles 55a and 55b.”
5. The case-law of the Supreme Court and the Constitutional Court of Slovenia
The Supreme Court has established precedents as regards the rights of the defence in minor offence proceedings. Its case-law has been developed on the basis of its jurisdiction to decide on requests for the protection of legality (zahteva za varstvo zakonitosti) lodged by the public prosecutor in cases concerning minor offences. According to the extracts from the relevant case-law submitted by the Government, the Supreme Court has found that an offender must have the opportunity to defend himself in the proceedings, in particular, to respond to all the factual and legal aspects of the case (judgments nos. IV Ips 58/2007, IV Ips 49/2007, IV Ips 78/2008). The Supreme Court has also decided that the local courts are not required to examine every piece of evidence put forward by the offender. They must, however, examine evidence whose relevance is sufficiently established (judgment no. IV Ips 45/2007). In the context of minor offences which entail a presumption of the vehicle owner’s liability, the Supreme Court has found that that the accused must offer convincing and reasonable evidence in his defence. The defendant must specify the evidence and the facts which it is claimed are proved by it (judgment no. IV Ips 45/2008). Finally, the Supreme Court has found that the local courts must examine every specific argument which refers to significant facts, reply to such arguments and explain its decision taken on those points. However, the courts do not have to examine statements which are legally irrelevant and are not required to reply to statements of a general nature. Neither must they repeat the reasons given by the administrative authority, but rather can simply endorse its findings (judgment no. IV Ips 30/2007).
By decision no. Up-3663/07 of 10 September 2009, the Constitutional Court assessed a local court’s refusal to hear a witness in minor offence proceedings. The appellant had been fined for parking his car illegally, but denied that he had been using his car at that time. In his request for judicial review, he asked the local court to hear a witness who would prove his alibi. However, that request was rejected by the court, which decided that the applicant should have submitted documents in his defence. The Constitutional Court found that the applicant’s right to defend himself enshrined in Article 29 of the Constitution had been violated, as the local court, which should have heard the witnesses, had unlawfully limited the appellant’s choice of defence method.
COMPLAINTS
The applicant complained under Article 6 of the Convention that he had been convicted of speeding and driving under the influence of alcohol by the police, had had no public and oral court hearing of his case, and that he had not had the opportunity to defend himself in person or to adduce evidence in his favour before a court.
Relying on Articles 6 and 13 of the Convention, the applicant complained that the Constitutional Court had declined to deal with his constitutional appeal and had merely referred to section 55a of the Constitutional Court Act, which had entered into force after the events concerned in his appeal had taken place. He argued that this decision of the Constitutional Court had denied him the right of access to court and had retroactively interfered with his rights.
In addition, he complained that there had been a breach of the presumption of innocence and that, contrary to Articles 6 and 13 of the Convention, no appeal against the local court’s judgment had been possible. Finally, the applicant complained that the police had interfered with his right to liberty, as he had been stopped without a warning.
THE LAW
The applicant raises several complaints under Articles 6 and 13 of the Convention. Article 6 reads as follows, in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Lack of an oral and public hearing under Article 6
1. The parties’ submissions
(a) The applicant
The applicant argued that he had been charged and convicted by the same body, namely the police, and that the judicial review of the process had been inadequate. He had not been afforded an oral and public hearing, nor had he been able to examine witnesses. The police had not proved his guilt beyond reasonable doubt, as they had not submitted any photos or videos in support of their allegations. The speed measuring device used against the applicant had not recorded the place or time and the results could therefore have easily been manipulated. As regards the breath alcohol test, the applicant submitted that an individual without a legal education should not be considered as accepting of the results merely by signing the report. A hearing in his case had therefore been indispensable.
(b) The Government
The Government argued that the applicant had failed to properly exhaust domestic remedies, as he had not advanced relevant arguments in his constitutional appeal, that the case was not compatible ratione materiae with the provisions of the Convention, and that the application should be rejected under Article 35 § 3 (b) of the Convention. In the alternative, they argued that the applicant had had a fair hearing as required by Article 6. His case had been reviewed by a court with full jurisdiction.
The Government further submitted that the lack of an oral hearing in the present case had not been the result of a structural problem or deficiency in domestic legislation. A hearing had not been held because there had been no need for an oral presentation of the applicant’s arguments. Neither had the applicant requested that any witnesses be examined by the court. The arguments the applicant had raised in his request for judicial review had merely concerned points of law, the credibility of the technical devices used against him and the officer’s competence to use the laser machine. The latter two points were easily verifiable on the basis of publicly available technical documentation and the police officer’s training certificates, which were of an objective nature and could be established by the court without hearing the applicant. In addition, the applicant had had the opportunity to submit a reply to the charges during the police procedure and had also had the opportunity to examine the case file at any stage of the proceedings.
The Government finally submitted that oral hearings were held in minor offence cases when it was so required by the circumstances of the case, namely when facts had not been sufficiently established or when the accused had had no opportunity during the police procedure to reply to the charges. In support of this argument, they submitted copies of twenty-four domestic judgments issued further to requests for judicial review by eight different local courts in the period between 2005 and 2010. In most of the cases concerned by these judgments, the respective judge had heard the defendant and had also examined witnesses; in nineteen cases the defendant had been successful in his application. Acquittal had normally been based on the fact that the police had failed to prove the case. It appears that the hearing of the defendant and witnesses was, in most cases, performed as part of additional fact-finding carried out by the judge.
2. The Court’s assessment
The Court does not find it necessary to examine the Government’s objections concerning the exhaustion of domestic remedies, applicability of Article 6 and the application of Article 35 § 3 (b), as the case shall in any event be declared inadmissible for the reasons set out below. The Court will proceed on the assumption that Article 6 is applicable to the facts of the case (see Öztürk v. Germany, 21 February 1984, §§ 47-56, Series A no. 73; Falk v. Nederlands (dec.), no. 66273/01, ECHR 2004-XI, and Malige v. France, 23 September 1998, § 39, ECHR 1998 VII).
(a) Summary of the relevant principles
The Court recalls that the principle of an oral and public hearing is particularly important in the criminal context, where the accused must generally be able to attend a hearing at first instance (Tierce and Others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, § 94, ECHR 2000 IX). That said, the obligation to hold a hearing is not absolute. In Jussila v. Finland ([GC], no. 73053/01, 23 November 2006) the Court found that in the light of the broadening of the notion of a “criminal charge” to cases not belonging to the traditional categories of criminal law (such as administrative penalties, customs law and tax surcharges), there were clearly “criminal charges” of differing weights. While the requirements of a fair hearing are strictest concerning the hard core of criminal law, the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency to other categories of cases falling under that head and which do not carry any significant degree of stigma. The Court therefore accepted that an oral hearing may not be required in all cases in the criminal sphere (ibid., § 43). Drawing a parallel with its approach in civil cases, the Court considered that the character of the circumstances which may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be dealt with by the competent court – in particular, whether these raise any question of fact or law which could not be adequately resolved on the basis of the case file. An oral hearing may not be required where there are no issues of credibility or contested facts which necessitate an oral presentation of evidence or cross-examination of witnesses and where the accused was given an adequate opportunity to put forward his case in writing and to challenge the evidence against him (see Jussila, cited above, §§ 41-2, 47-48, and, mutatis mutandis, Helmers v. Sweden, 29 October 1991, § 32, Series A no. 212 A). In this connection, it is legitimate for the national authorities to have regard to the demands of efficiency and economy (Jussila, cited above, § 42).
Aside from the nature of the issues before the competent national court, the Court has attached importance to domestic regulations concerning the right to an oral hearing. Problems under Article 6 have arisen in a situation where the absence of an oral hearing flows from domestic law itself or is the result of a direct and automatic application of some of its provisions (see, for example, Karahanoğlu v. Turkey, no. 74341/01, §§ 36-9, 3 October 2006; Súsanna Rós Westlund v. Iceland, no. 42628/04, § 40, 6 December 2007; and Hüseyin Turan v. Turkey, no. 11529/02, §§ 34-5, 4 March 2008).
Furthermore, when accepting that a hearing has not been necessary in the circumstances of a particular case, the Court has also had regard to the minor sum at stake or the minor character of the offence (Jussila, cited above, § 48; see also, mutatis mutandis, Kammerer v. Austria, no. 32435/06, §§ 28-9, 12 May 2010; and Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212 C 33). Finally, the Court has acknowledged that, having regard to the above considerations, they do not mean that a refusal to hold an oral hearing might be justified only in rare cases (Jussila, cited above, § 42).
(b) The present case
The Court observes at the outset that the present case concerns regulatory offences of speeding and driving under the influence of alcohol contained in the Road Traffic Safety Act, which, as such, do not belong to the traditional categories of criminal law (see, mutatis mutandis, Kammerer, cited above, § 28, and Öztürk, cited above, § 51).
The Court further observes that the applicant’s case was dealt with under the MOA using the summary procedure put in place by that Act. The summary procedure entails that certain administrative penalties, such as fines and penalty points, can be imposed by the administrative authorities, whereas judicial review is ensured by means of an application to the courts for such review.
The Court notes that the domestic courts dealing with requests for judicial review have full jurisdiction to entertain questions of fact and law. The MOA, however, does not explicitly provide for an opportunity to request a hearing, this being at the judge’s discretion. Under the terms of Section 65 of that Act, whose operation in practice can be seen from the domestic judgments submitted by the Government, a judge may hold an oral hearing and examine witnesses if he finds this necessary due to insufficient establishment of the facts by the administrative authority or when a request for judicial review is upheld on the basis of the file, and the judge is required to rule on the matter in ordinary judicial proceedings. Having regard to the fact that the accused has the opportunity to present arguments in favour of a hearing in his request for judicial review, the Court does not find the above system, which leaves the decision as to the need to hold an oral hearing to the judge’s discretion, to be per se incompatible with the guarantees enshrined in Article 6 (see by contrast, Súsanna Rós Westlund, cited above, §§ 40-41). In this connection, the Court observes that the introduction of the summary procedure and the resulting restrictions on court hearings being held in this type of case were aimed at expediting the processing of minor offences and at lowering the workload of the judiciary. It finds these considerations legitimate and notes that the expeditious handling of the courts’ caseload may also be essential in ensuring the right to trial within a reasonable time (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 80, ECHR 2006 XII).
The Court will proceed to examine whether in the circumstances of this case, having regard to the manner in which the applicant’s interests were actually presented and protected in the proceedings and particularly in the light of the nature of the issues to be decided by the local court, the lack of a hearing was justified.
In this respect, the Court notes that the applicant was able to deny that he had committed the offences and to submit factual and legal arguments which he considered helpful to his case, firstly in his written reply to the charges in the procedure before the police and more importantly in his application to the domestic court for judicial review.
It further observes that the applicant was fined based on evidence obtained using technical devices, namely the speed measuring laser device which recorded his speed and the electric device for measuring the level of alcohol in his breath. The grounds of the applicant’s request for judicial review related essentially, on the one hand, to general objections to the provisions of domestic legislation allowing the police to impose a fine and, on the other hand, to the reliability of the speed measurement conducted by the police officer and the result of the breath alcohol test. As regards the latter, the applicant merely disputed that it was his car whose speed had been measured and demanded that documents demonstrating the reliability of the measuring devices and competence of the police officer to handle the speed measuring laser device be provided to him, without making any concrete arguments which would challenge the accuracy of the results. The domestic court looked at the two reports prepared by the officers, which had been relied on by the Kranjska Gora Police in sentencing the applicant, and both documents requested by the applicant and sufficiently answered his arguments, which did not give rise to any issue of credibility which would require oral presentation of evidence or cross-examination of witnesses (see mutatis mutandis, Hermi, cited above, § 85; see also, a contrario, Russu v. Moldova, no. 7413/05, § 27, 13 November 2008, and Hannu Lehtinen v. Finland, no. 32993/02, § 48, 22 July 2008). Moreover, the applicant did not ask to be heard orally or to examine witnesses. The Court therefore finds force in the Government’s argument that the local court was able to adequately resolve the case on the basis of the file and therefore did not need to hold an oral hearing.
Having regard to the foregoing and to the minor character of the offences in question, the Court finds that there were special features that justify the absence of an oral hearing in the present case. This conclusion also applies by implication to the applicant’s complaint concerning the lack of a public hearing.
This part of the application is therefore manifestly ill-founded and should be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint under Articles 6 § 1 and 13 concerning the proceedings before the Constitutional Court
The Court notes that the applicant’s complaint concerning the proceedings before the Constitutional Court is twofold. Firstly, he complained that the Constitutional Court’s decision rejecting his constitutional appeal was too brief and, secondly, that the decision relied on the Amendment, which had entered into force on 15 July 2007 – that is, after the events concerned in his appeal had taken place. The Court considers that although the applicant relied upon Articles 6 § 1 and 13 of the Convention, this complaint falls to be examined only under Article 6 § 1.
The Court recalls that the “right to court”, of which the right of access is one aspect, is not absolute: it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 33, Reports of Judgments and Decisions 1997-VIII). The Court further reiterates that the manner in which Article 6 § 1 applies to higher judicial authorities, such as courts of appeal, supreme or constitutional courts, depends on the special features of the proceedings concerned, and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the role the court in question played in them (see, mutatis mutandis, Levages Prestations Services v. France, 23 October 1996, §§ 44-45, Reports 1996 V, and Brualla Gómez de la Torre, cited above, § 37).
As regards the brief reasoning of the Constitutional Court’s decision, the Court observes that for national superior courts – such as the Constitutional Court – it suffices to refuse to admit a complaint by simply referring to the legal provisions allowing for that procedure if the questions raised by the complaint – as in the present case – are not of fundamental importance (see Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006). It also notes that both the Local and the Higher Court had duly reasoned their decisions in the applicant’s case (see ibid.).
As regards the applicant’s argument concerning the retroactive effect of the Amendment, the Court notes that the Amendment entered into force on 15 July 2007, before the delivery of the Local Court’s judgment in the present case and well before the applicant lodged his constitutional appeal. This complaint is therefore unsubstantiated.
In conclusion, the Court finds this part of the application to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
C. Remaining complaints
The Court has examined the applicant’s remaining complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann Registrar President