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FIFTH
SECTION
CASE OF
FLISAR v. SLOVENIA
(Application
no. 3127/09)
JUDGMENT
STRASBOURG
29
September 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Flisar v. Slovenia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Ann Power,
Angelika
Nußberger, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3127/09)
against the Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Slovenian national, Mr Borut Franc Flisar (“the applicant”),
on 7 January 2009.
2. The
applicant was represented by Mr L. Poljanec from Slovenska Bistrica.
The Slovenian Government (“the Government”) were
represented by their Agent, Mrs T. Mihelič Zitko, State
Attorney.
3. The
applicant alleged, in particular, that Article 6 § 1
of the Convention had been violated as he had not been heard by the
judge who decided on his request for judicial review.
- On
4 May 2010 the Court decided to give notice of
the application to the Government.
It also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in
Martjanci.
- At
around 10 p.m. on 2 October 2006 the police, having been called,
intervened at the home of the applicant’s half-sister P., who
had been behaving in a violent and threatening manner towards their
mother. The applicant arrived at the scene after the police officers.
During the police intervention, P. managed to escape together with
her 8-year-old daughter. The applicant and the officers searched for
P. In the meantime, she returned alone and refused to disclose her
daughter’s whereabouts. The applicant got upset and, according
to the police statement, grabbed P.’s neck with one hand and
slapped her with the other hand, in the presence of the police
officers. He then calmed down and was informed by the officers of the
minor offence he had committed. In accordance with the summary
procedure under the Minor Offences Act (hereinafter the “MOA”)
he was fined 150,000 Slovenian tolars (approximately 625 euros (EUR))
for the offence of violent and aggressive behaviour. In his
application to the Court the applicant maintained that he had
assisted the officers and had been unjustifiably implicated in the
situation.
- Four
days later, the applicant received written notice of the payment
order issued by the police, which stated that he had committed a
minor offence under section 6(4) of the Protection of Public Order
Act and included a statement of facts which read as follows (in its
entirety):
“The mentioned [person] was present at the
incident involving his half-sister P. at home. Her conduct, insults
and aggressive behaviour had upset him and for that reason he grabbed
P.’s neck and slapped her across the face. After that act, he
calmed down.”
- On
13 October 2006 the applicant lodged a request for judicial review.
He alleged that his sister had been under the influence of alcohol
and drugs, and had threatened and offended their mother and other
people present, including the police officers. He also explained that
P. had taken her child away in the car and had returned without her,
refusing for a while to say where she had left her. The applicant and
the officers had tried to convince her to disclose the child’s
whereabouts but P. had threatened the applicant and spat at him.
After being provoked by her, the applicant, fearing for the child,
had approached her and gently held her neck but had not slapped her.
She had then revealed the whereabouts of the child and one of the
officers had gone with her to pick him up. The applicant alleged that
he had committed no offence and that he had not slapped P. In
accordance with section 63 of the MOA the police forwarded the
request for judicial review to the Murska Sobota Local Court.
- On
26 May 2008 the Murska Sobota Local Court gave a judgment in which,
relying on section 65(1) of the MOA, it rejected the applicant’s
request for judicial review as unsubstantiated and upheld the payment
order. The applicant was ordered to pay EUR 62 for the costs of the
proceedings.
- As
explained in the judgment, the court based its decision on the
payment order and the statement of facts concerning the event, which
the police submitted to the court at the same time as the request for
judicial review. The court found as follows:
“the conduct of the defendant towards his sister
which was observed by the police officers personally and directly
.... was unjustified regardless of her mental and physical state,
which therefore leads the court to conclude that this [request for
judicial review] is only an attempt at avoiding payment of the fine,
since the court has no doubts as to the officers’ findings.”
- On
23 June 2008 the applicant then lodged a constitutional appeal
alleging that his constitutional rights had been violated. He
complained, inter alia, of a violation of the right to a fair
trial and presumption of innocence, alleged that the judge had
decided only on the basis of the police file, that there had been no
public hearing, that he had not had enough time to prepare his
request for judicial review and that no appeal lay against the
first-instance court’s judgment.
- Relying
on section 55b(1)(3), read together with section 55a(2)(4) of the
Constitutional Court Act, the Constitutional Court dismissed the
appeal on 25 August 2008. The decision was served on the applicant on
30 August 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- For
the relevant domestic law and practice see Suhadolc v. Slovenia
((dec.), no. 57655/08, 17 May 2011). In addition, the following
domestic provisions are relevant to the present case.
- Section
6 of the Minor Offences Act (Official Gazette no. 7/2003), referred
to as the “MOA”, defines an “offence” as any
act that is against the law or 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
proceedings. In addition, the principle of the presumption of
innocence is included in the MOA, which provides in section 7 that
“persons accused of having committed minor offences are
innocent until their responsibility is established by a final
decision”.
- Under
section 57, in cases where an officer observes the commission of the
offence, or where the latter is established by special technical
equipment, the authority may issue a “payment order”
(plačilni nalog). The payment order has the same effect
as the authority’s decision. However, the measure of
imprisonment for non-payment is not available when the fine was
imposed by a payment order.
- A
judge can decide on the admissibility and merits of the request for
judicial review on the basis of the file received from the
administrative authority. Under section 65 of the MOA, the judge may
reject the request 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 request 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, 69, 90, 114 and 119 of the
MOA). Under section 125 of the MAO, the judge can, at his discretion,
schedule a public hearing in ordinary judicial proceedings.
- Section
6 of the Protection of Public Order Act (Zakon o varstvu javnega
reda in miru, Official Gazette no. 70/2006, in force since 2 July
2006) reads as follows:
“ (1) Any person who challenges or incites another
person to fight, acts dangerously or violently, or insults or offends
another person ... shall be punished with a fine of between 60,000
and 120,000 Slovenian tolars (SIT).
(2) A person who hits another person shall be punished
with a fine of between SIT 80,000 and 150,000.
(3) The person who engages in a fight shall be punished
with a fine of between SIT 100,000 and 300,000.
(4) If an offence listed in subsections (1)-(3) above is
committed against ... a blood relative in the direct line ... ,
the offender shall be punished with a fine of between SIT 150,000 and
300,000 [EUR 625 to 1,251].”
- The
Constitutional Court Act (Zakon o ustavnem sodišču,
Official Gazette no. 15/1994, as amended on 30 May
2007, Official Gazette no. 64/2007 – official
consolidated version) provides in section 53 as
follows:
“(1) A constitutional complaint must state the
following:
- the decision which is challenged, the authority which
issued it, its
reference number, and the date it was issued;
- the human rights or fundamental freedoms allegedly
violated;
- the reasons that support the violations;
- the date on which the claimant was served the decision
which he challenges;
- if the claimant is a natural person, the full name of
the claimant and the address of his permanent or temporary residence,
or, if the claimant is a legal entity, state authority, bearer of
public authority, or other legal subject, its name and where it is
based, as well as the name and title or position of its
representative;
- other information determined by the Rules of Procedure
of the Constitutional Court.
(2) The constitutional complaint must be submitted in
writing. A copy of the challenged decision and all other decisions
that were issued in connection with the challenged decision in
proceedings before the competent authorities in the case, as well as
the relevant documents on which the constitutional complaint is
based, must be enclosed with the complaint.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 AS REGARDS THE LACK OF A
HEARING
- The
applicant complained that he had not had an oral
hearing, that the court did not examine witnesses, and that the
judgment was based solely on the police file, in breach of his right
to a fair hearing as provided for in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
1. The parties’ arguments
- The
Government argued that Article 6 was not applicable to the present
case. Firstly, the offence in question was set out in the Protection
of Public Order Act, and not in the Penal Code. The proceedings were
governed by the MOA, and not the Criminal Procedure Act. Secondly,
the sanction prescribed for the offence in question was a fine of
between EUR 625 and EUR 1,251 and the entry of the conviction in
a register of administrative offences for a period of three years.
The sanction was not of a punishing nature, but was aimed at
preventing the applicant from reoffending. There was no possibility
of imprisonment in the present case. Finally, the Government
submitted that the offence in question was of a general nature and
concerned an undefined group of people.
- The
Government further pleaded non-exhaustion of domestic remedies
submitting that the applicant had not advanced relevant arguments in
his constitutional appeal indicating that his case had been of
constitutional importance, which was one of the admissibility
grounds.
- In
the alternative, the Government argued that the complaint should be
rejected under Article 35 § 3 (b), submitting that the penalty
had no significant consequences for the applicant’s life and
that the case had been duly considered by the domestic court.
- The
applicant submitted that Article 6 should be applicable to the
proceedings in question as he had been charged and convicted of an
offence.
2. The Court’s assessment
- As
regards the issue of applicability of Article 6, the Court recalls
that in order to establish whether a person has been criminally
convicted within the autonomous meaning of the Convention, it applies
what is commonly known as the “Engel criteria”
(see Engel and Others v. the Netherlands, 8 June 1976, §
82, Series A no. 22, and, among other authorities, Sergey
Zolotukhin v. Russia, [GC], no.
14939/03, § 53, 10 February 2009). The Court
reiterates, in particular, that the lack of severity of the penalty
imposed cannot divest an offence of its inherently criminal
character.
- Turning
to the present case, the Court notes that the provisions of the MOA
apply to the entire population and not to a group possessing a
special status. Furthermore, although concerning “regulatory
offences”, the MOA refers to provisions of the Penal Code to be
used by analogy (see paragraph 14 above). Finally, the applicant was
given a fine of EUR 625, which was prescribed as a punishment (see
paragraph 17 above) and not as compensation for the committed act.
The Court has previously assessed cases in which similar types of
“charges” were in question and found that they were
“criminal” in nature (see, mutatis mutandis,
Öztürk v. Germany, 21 February 1984, §§
46-56, Series A no. 73; Falk v. the Netherlands (dec.), no.
66273/01, ECHR 2004-XI;
and Ziliberberg v. Moldova, no. 61821/00, §§
30-36, 1 February 2005). It sees no reason to reach a different
conclusion in the present case. It therefore finds that the offence
of which the applicant was accused and convicted may be classified as
“criminal” for the purposes of Article 6 of the
Convention.
- As
regards the Government’s objection concerning non-exhaustion of
domestic remedies, the Court observes that Article 35 § 1
requires that complaints intended to be brought subsequently before
the Court should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal
requirements (see İlhan v. Turkey [GC], no. 22277/93,
§ 58, ECHR 2000 VII). The Court notes that the applicant,
in line with the procedural rules, made the complaints to the
Constitutional Court which he subsequently brought before the Court.
The Government, however, argued that the applicant had not properly
exhausted a constitutional appeal as he had not proven that his case
concerned an important constitutional question. The Court does not
find this argument convincing. Section 53 of the Constitutional Court
Act sets out the elements that a constitutional appeal must contain
(see paragraph 18 above) and the element mentioned by the Government
is not listed among them. It therefore dismisses this objection.
- The
Court also disagrees with the Government’s argument that this
complaint should be rejected under Article 35 § 3 (b). It notes
that the applicant complained precisely about not having his case
properly examined by the domestic courts. It also notes that the
Constitutional Court did not deal with the applicant’s
complaints concerning an alleged breach of the guarantees of Article
6.
Therefore,
and since this part of the application is not inadmissible on any
other grounds, it must be declared admissible.
B. Merits
1. The parties’ arguments
- 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 a hearing, nor had he
been able to examine witnesses.
- The
Government argued that the applicant had had a fair trial with the
possibility of an oral and public hearing at which the witnesses
could have been cross-examined. The fact that he did not have such a
hearing is not a 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. The applicant did not request an oral hearing or ask for
any particular evidence to be examined by the court, nor did he
submit arguments which would call for a hearing. In his request for
judicial review, the applicant admitted in substance that he had
grabbed P.’s neck. This was sufficient for the court to find
that he had committed the respective regulatory offence. It would
appear that the applicant’s defence was based on the fact that
he had been acting in defence of P.’s child. The court
dismissed this argument. The remaining arguments concerned merely
legal questions. The applicant therefore could not be said to have
challenged the facts as established by the officers, neither did he
challenge the legal qualification of his conduct or the sanction.
- The
Government further submitted that the police officer had conducted an
oral procedure at the time of the incident, where the applicant had
been immediately informed of the charges against him. A statement of
key facts had also been drawn up by the police and sent to the
applicant together with the payment order. The Government stressed
that the procedure concerning a payment order was simplified in terms
of the facts and legal qualification of the offence drawn up by the
police.
- Lastly,
the Government 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 by
the police 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 between 2005 and 2010. In most of the cases concerned by
these judgments, the respective judge had heard the defendant and/or
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
in ordinary judicial proceedings.
2. The Court’s assessment
- The
Court reiterates that while entrusting the prosecution and
punishment of minor offences to administrative authorities is not
inconsistent with the Convention, the person concerned must have an
opportunity to challenge any decision made against him before a
tribunal that offers the guarantees of Article 6 (Lauko v.
Slovakia, 2 September 1998, § 64, Reports of Judgments
and Decisions 1998 VI). It further reiterates that an oral,
and public, hearing constitutes a fundamental principle enshrined in
Article 6 § 1. This principle is particularly important in the
criminal context, where generally there must be at first instance a
tribunal which fully meets the requirements of Article 6 (see Findlay
v. the United Kingdom, 25 February 1997, § 79, Reports
1997-I), and where an applicant has an entitlement to have his
case “heard”, with the opportunity, inter alia, to
give evidence in his own defence, hear the evidence against him, and
examine and cross-examine the witnesses (Jussila v. Finland
[GC], no. 73053/01, § 40, ECHR 2006 XIII).
- The
Court therefore notes that, according to its established case-law,
the applicant was in principle entitled to a hearing before the first
and only tribunal examining his case, unless there were exceptional
circumstances which justified dispensing with such a hearing.
- The
Court has accepted such exceptional circumstances in cases not
belonging to the traditional categories of criminal law, such as
tax-surcharge proceedings (see Jussila, cited above) and
proceedings concerning traffic offences such as speeding and driving
under the influence of alcohol (see Suhadolc, cited above),
where issues at stake were of a rather technical nature. In finding
that the hearing was unnecessary the Court had regard to the fact
that there had been no issues of credibility or contested facts which
had necessitated an oral presentation of evidence or
cross-examination of witnesses and that the accused had been given an
adequate opportunity to put forward his case in writing and to
challenge the evidence against him (see Jussila, cited above,
§§ 41-42 and 47-48, and Andria Oy and Kari Karanko
v. Finland (dec.), no. 61557/00, 13 March 2007).
- The
present case concerns a regulatory offence under the Protection of
Public Order Act, which, as such, does not belong to the traditional
categories of criminal law (see, mutatis mutandis, Kammerer
v. Austria, no. 32435/06, § 28, 12 May 2010, and
Öztürk, cited above, § 51). It should now be
examined whether, 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, exceptional circumstances
that could justify dispensing with a hearing existed in the present
case.
- The
Court notes at the outset that the applicant did not make an explicit
request for a hearing. However, under the MOA, as confirmed by the
judgments submitted by the Government (see paragraph 32 above), an
oral, and possibly public, hearing would be held if the judge decided
that ordinary judicial proceedings should be conducted (see paragraph
16 above). This decision is taken at the judge’s discretion
(see Suhadolc, cited above). There is no provision in the MOA
under which a defendant may request a hearing. In these circumstances
and having regard to the principles concerning the waiver of the
guarantees of a fair trial (see Hermi v. Italy [GC], no.
18114/02, §§ 73-76, ECHR 2006 XII), the Court does not
consider that the applicant unequivocally waived his right to a
hearing. It also notes that that the applicant explicitly complained
to the Constitutional Court about the lack of a hearing in his case
(see, mutatis mutandis, Baischer v. Austria, no.
32381/96, § 26, 20 December 2001).
-
As regards the nature of the issues that were to be decided by the
local court in the present case, the Court notes that unlike the case
of Suhadolc, which concerned evidence obtained by means of an
objective method, namely the use of a speed measuring device and an
alcohol test, the present case concerns an offence of alleged violent
and aggressive behaviour which was personally observed by the police
officers. These observations by the officers were the sole basis of
the applicant’s conviction. The Court also notes that the
entire summary procedure under the MOA was conducted by the officers
at the time of the offence. Subsequently, the applicant received a
payment order, which is equivalent to a conviction, with a very brief
statement of facts. No written exchange of arguments was conducted
before the case was brought to the local court, or later in the
proceedings. The local court upheld the police’s decision on
the basis of the file forwarded by the police, which contained the
payment order, the statement of facts and the applicant’s
request for judicial review (see paragraph 10 above).
-
In his request for judicial review, the applicant contested the
conviction and challenged certain factual aspects of the case,
including the credibility of certain police statements concerning his
conduct. In view of the foregoing, the Court finds that the local
court could not, as a matter of fair trial, have properly determined
the facts or the applicant’s guilt without a direct assessment
of the evidence at an oral hearing (see mutatis mutandis,
Hannu Lehtinen v. Finland, no. 32993/02, § 48,
and Kallio v. Finland, no. 40199/02, § 50,
both of 22 July 2008).
- There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant complained under
Article 6 of the Convention that the principle of presumption of
innocence had been breached in his case and that no appeal lay
against the local court’s judgment. He further complained under
Articles 6 and 13 of the Convention that the Constitutional Court had
declined to examine his constitutional appeal and based its decision
on section 55a of the Constitutional Court Act, which came into force
after the event concerned in the constitutional appeal.
- As
regards the proceedings before the Constitutional Court, the Court
has already dismissed an identical complaint in Suhadolc v.
Slovenia (cited above) and finds no reason to reach a different
conclusion in the present case. Having examined the remaining
complaints, the Court finds, in the light of all the materials in its
possession, and in so far as the matters complained of are within its
competence, that they do not disclose any appearance of a violation
of the Articles relied on by the applicant (see ibid.). 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 4,787 euros (EUR) in respect
of pecuniary damage and EUR 4,000 in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- Moreover,
with regard to the applicant’s claim for non-pecuniary damage,
the Court notes that where an individual, as in the instant case, has
been convicted in proceedings which did not meet the Convention
requirement of fairness, a retrial, a reopening or a review of the
case, if requested, represents in principle an appropriate way of
redressing the violation (see Nadtochiy v. Ukraine, no.
7460/03, § 55, 15 May 2008). Therefore, it considers that the
finding of a violation constitutes in itself sufficient just
satisfaction.
B. Costs and expenses
- The
applicant also claimed EUR 787 for the costs and
expenses incurred in the domestic proceedings. The claim included the
sum paid as a fine, an unidentified “voluntary contribution”
and the sum the applicant paid in respect of costs for the
proceedings before the local court.
- The
Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court rejects the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint
concerning the lack of a hearing under Article 6 § 1
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of
violation is sufficient just satisfaction for any non-pecuniary
damage suffered by the applicant;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 29 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
