CASE OF KARIŽ v. SLOVENIA

FIFTH SECTION

CASE OF KARIŽ v. SLOVENIA

(Application no. 24383/12)

JUDGMENT

STRASBOURG

13 November 2014

This judgment is final but it may be subject to editorial revision.

In the case of Kariž v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Helena Jäderblom, President,
Boštjan M. Zupančič,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 21 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24383/12) 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 Kariž (“the applicant”), on 6 April 2012.

2. The applicant was represented by Ms D. Baškovič, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Ms T. Mihelič Žitko, State Attorney.

3. On 3 March 2014 the complaint concerning the lack of an oral hearing was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1966 and lives in Portorož.

5. On 13 March 2010 the police issued a payment order fining the applicant 540 euros (EUR) for two traffic offences under Section 27(1) and (3) and Section 135(3) and (5) of the Road Traffic Safety Act. From the police’s description of the facts and evidence it appears that on 13 March 2010 at 9:45 am while trying to overtake X’s car, which had been improperly parked, the applicant failed to make sure that he could do so without endangering X’s car and with the rear right end of his car he hit the rear left end of X’s car. Allegedly, after the collision the applicant left the scene of the accident without submitting his personal data to X who was not present during the accident or notifying the police that he had been involved in an accident. X stated to the police that an unknown witness told him that the person responsible for the accident was driving a dark car with the number plate LJ 37-33. On the basis of this information the police checked two vehicles with number plates LJ 37-33V and LJ 37-33L. These vehicles did not show any sign of damage. On 14 March 2010 X informed the police that he had found a dark car with the number plate KP L3-733. The police established that the owner of the car was the applicant. On the same day the police interviewed the applicant and checked his car. They found that the damage on the applicant’s car corresponded to that of X’s car. They further found that Y was present in the applicant’s car during the accident.

6. On 31 March 2010 the applicant lodged an objection. He argued that he did not detect any collision between the two cars and that, accordingly, he had not informed X or the police of the accident; that there had been many passers-by on the road who had witnessed how he had been manoeuvring the car but nobody had warned him of any kind of abrasion or dent caused to X’s car; that he lived at the address of the scene of the accident and would have never left the scene even if he had caused the damage; that he had been informed of the accident only the following day when called by the police, and that together with the police he had checked his car visually and discovered a scratch of 10 to 15 cm in length for which he did not know when it appeared. According to the applicant, due to X’s improper parking any vehicle could have hit his car; from the damage on X’s car it was clear that the applicant could not have caused the damage with his car. The applicant reiterated that if he had detected the accident he would have reported it and this fact could have been proved by witness Y which was present in his car. He described in detail the events of 13 March 2010, namely approximately at 9.30 am he drove out of the parking spaces, he wanted to turn to the right but two cars prevented him from doing so because they were actually parked on the road; the cars parked posed a threat to road traffic safety because the space between them would have not allowed an ambulance or any other emergency vehicle to pass; in such a situation the applicant was forced to position his car at an appropriate angle to enable him to pass safely between the cars; he had to fold both side mirrors; otherwise he would not have been able to pass the two parked vehicles without collision; he manoeuvred his car at almost zero speed and was not aware that he had caused an abrasion or damage to any other vehicle.

7. On 14 April 2010 the police issued a reasoned decision finding the applicant guilty of the abovementioned minor offences.

8. On 29 April 2010 the applicant lodged a request for judicial review. He complained that the police had not sufficiently established the facts; he had not left or escaped the scene of the accident; he had not been aware of any collision and, consequently, he did not inform X and the police thereof in accordance with Section 135(3) of the Road Traffic Safety Act. He further stated that he wanted to turn right onto the carriageway but he was prevented from doing so by two cars parked on the carriageway – on the left and on the right sides of the road. One of the cars was X’s car. When he wanted to drive out of the garage he could not do so and was forced to manoeuvre for quite some time to position the car at an appropriate angle and had to straighten the car almost completely to be able to pass freely between the two cars. In order to do it safely he had to fold in both side mirrors because otherwise he would have not been able to pass the parked cars without colliding with them. During the manoeuvring he was not aware that he had caused an abrasion or damage to the cars. The manoeuvring speed was minimal. There were many passers-by who witnessed the manoeuvring but did not warn him of any accident. In order to prove these allegations the applicant proposed that he and Y be heard. He further stated that police had not considered the fact that he lived at the address of the scene of the accident and therefore he had no interest in leaving the scene. He drove to a filling station, went shopping and visited his parents. As evidence he submitted a fuel purchase receipt and a shop receipt and proposed the hearing of his parents. He further argued that if he had left the scene of the accident intentionally he would have concealed the scratches on his car. Even if he had collided with X’s car he would not have been aware of it since his car was a diesel-fuelled car which tended to vibrate heavily. Moreover, his radio was always turned on which reduced the likelihood of noticing the collision. In order to prove this he proposed that he and Y be heard. He argued that he was not aware of the date when the scratch appeared on his car since the car was seven years old and had many other scratches. Since X’s car had been improperly parked any vehicle could have collided with it. The police did not clarify on the basis of which fact they had concluded that the scratch on his car corresponded to the damage on X’s car. In the applicant’s view X had been frenetically searching for the culprit and as soon as he found a black car with few scratches he reported him to the police and the police believed X without hearing any witness and without considering all of the circumstances of the case.

9. On 12 September 2011 the Ljubljana Local Court rejected the request for judicial review without holding a hearing. The Local Court held that it had no reason to doubt the findings of the police who conducted an interview with the applicant and a visual inspection of his car during which they noticed damage which corresponded to the damage on X’s car. According to the court, it was clear from the documents of the case-file, in particular the photographs of X’s car, that the damage had been caused by the applicant’s car and the applicant’s complaints in this respect remained general and subjective. In particular, the allegations that the accident would have been reported by passers-by or that the applicant would not have left the scene of the accident if he had noticed it were subjective and could not be verified. The applicant could not be released from his responsibility for the minor offence by stating that he had not been aware of the collision because this was, again, a subjective allegation. Every participant in road traffic, in the circumstances described by the applicant, was expected to be particularly alert and to detect the collision. Regarding the allegation that X’s car was parked on the road and that it had endangered the traffic safety the court stressed that only the applicant’s behaviour was at issue. It held that according to Section 135(5) of the Road Traffic Safety Act a traffic offender who had left the scene of the accident should have immediately notified the injured party or the police the information referred to in that Section. The court therefore did not have to reply to the applicant’s allegations that he had not left the scene to an unknown place as they were legally irrelevant. Finally, the evidence submitted by the applicant could not change the conclusions of the police and it was only an attempt to delay the proceedings since the motions for evidence did not comply with the required legal standards regarding the subject-matter about which the witnesses proposed might have testified.

10. On 9 November 2011 the applicant lodged a constitutional appeal.

11. On 26 March 2012 the Constitutional Court rejected the appeal as inadmissible.

II. RELEVANT DOMESTIC LAW

12. For the relevant domestic law and practice see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011) and Flisar v. Slovenia (no. 3127/09, § 14-16, 29 September 2011). The following provisions of the Road Traffic Safety Act are also relevant to the present case:

“Section 27

1. Before changing lane and any other change in the direction or movement of the vehicle or before joining traffic, a driver shall make sure that he can do so without endangering other traffic users or property and shall give a clear warning in due time of his or her intention by means of direction indicator.

...

3. A fine of EUR 40 shall be imposed on a driver who contravenes the provisions of this Article.

...

Section 135

3. A person directly involved in a traffic accident who has left the place of traffic accident shall immediately notify [the injured party] and the police that he had been involved in a traffic accident, he or she shall submit data concerning the place and other circumstances of the accident, his or her personal data, the number plate of his or her vehicle and the place where it is, and enable subsequently to establish the facts.

...

5. A fine of EUR 500 shall be imposed on a person directly involved in a traffic accident who contravenes [inter alia] the third paragraph of this Article.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

13. The applicant complained about the lack of an oral hearing. He invoked Article 6 of the Convention which, as far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

14. The Government contested that argument.

A. Admissibility

15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

16. The applicant complained that the Local Court had automatically confirmed the personal observations of the police officers which were the sole basis for his conviction for the minor offence. According to him, the domestic court could not have properly assessed the facts of the case without conducting an oral hearing. In particular, the proposed hearing of Y, who was the only witness present on the scene, was not in any way an attempt to delay the proceedings.

17. The Government argued that the circumstances of the present case differ from those in Flisar v. Slovenia (cited above). The facts of the present case were not established by the police officer personally, but by an unknown witness who referred his/her observations to the injured party. These observations were confirmed by several facts that could be established in an objective manner and also by the applicant himself in his interview with the police officers and in his appeals against the payment order. The documents of the case-file contain several facts that fit together and their overall picture shows that the police’s findings were correct. The unknown witness who saw the collision informed X that a dark-coloured car had damaged his car on the right rear end. The same witness provided X with an incomplete number plate LJ 37-33. Later, the police found a trace of black paint on the damaged part of X’s car, they conducted an interview with the applicant and together with him they visually checked his car. Moreover, the numerical part of the number plate submitted by the unknown witness corresponded to the applicant’s number plate KP L3-733. The applicant told the police officer that he had difficulties with manoeuvring on the day of the accident. In his request for judicial review he stated that even if he had hit X’s car he would not have detected it because his car vibrated at low speed and the radio was always turned on. He thus allowed for the possibility that the collision had actually happened and therefore completely compromised his statement that the collision had not happened. The Local Court had substantiated why it had not heard the proposed witnesses. The applicant had the opportunity to state his opinion in his objection to the payment order and in his request for judicial review and the Local Court made a reasoned assessment on the basis of the case-file’s documents and no oral hearing was necessary.

18. The Court observes that the present case concerns a traffic offence which was personally observed by an unknown witness who told the injured party X that a dark coloured car had damaged the rear left end of his car and provided him with the number plate of the traffic offender LJ 37-33. The police found in its records two vehicles which corresponded to the abovementioned number plate, LJ 37-33V and LJ 37-33L; they checked those vehicles but found no damage which could have corresponded to the damage on X’s car. Subsequently, X found the applicant’s car parked nearby with the number plate KP L3-733. He informed the police thereof. The police checked visually X’s car and the applicant’s car and interviewed the applicant. A black scratch was found on X’s car which according to the personal observations of the police corresponded to the damage on the applicant’s car. The applicant could not tell when the scratch appeared as the car was old. When contesting the fine imposed before the Ljubljana Local Court he alleged that he had encountered problems in manoeuvring his car because of X’s improper parking but he either denied committing the offence or alleged that he was not aware of any collision. He requested, inter alia, that he and Y, who was present in his car at the relevant time, be heard.

19. The Court considers that, contrary to the Government’s view, the present case is similar to Flisar v. Slovenia (cited above, §§ 33-39). The facts were not established by means of an objective method (for example by way of collection of paint samples from both vehicles; see, a contrario, Suhadolc v. Slovenia, cited above) but mostly by way of personal observations of an unknown witness who provided a partial number plate of the offender, and the police officers visual checking of the damage on the cars allegedly involved in the accident. In his request for judicial review the applicant denied the commission of the offence and in order to prove that he had not damaged X’s car he requested that he and Y be heard. Considering that the number plate provided by an unknown witness whom the applicant could not question was incomplete and that both cars had been checked only visually by the police officers, the Court finds unconvincing the reasoning provided by the Local Court that the applicant’s motion for the hearing of Y, in particular, was unsubstantiated and represented an attempt to delay the proceedings. In those circumstances, given the nature of the factual questions to be addressed by the Local Court and the fact that the evidence was not obtained by means of an objective method the Court is of the view 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, Flisar v. Slovenia, cited above; and Milenović v. Slovenia (no. 11411/11, 28 February 2013).

20. In view of the foregoing, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its well-established case-law on the subject, the Court considers that there has been a violation of Article 6 § 1of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

21. 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

22. The applicant claimed in respect of pecuniary damage EUR 542.30 for the fine imposed and EUR 147.89 for the increase of his car insurance rate as a result of the traffic accident.

23. The Government contested that claim.

24. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

B. Costs and expenses

25. The applicant also claimed EUR 740.85 for costs and expenses incurred before the domestic courts and EUR 500 for those incurred before the Court.

26. The Government contested that claim.

27. 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. With regard to the costs incurred in the domestic proceedings, the Court observes that, before applying to the Convention institutions, the applicant exhausted the domestic remedies available to him under domestic law, since he lodged an objection against the police’s payment order, a request for judicial review and a constitutional appeal. The Court therefore accepts that the applicant incurred expenses in seeking redress for the violation of the Convention through the domestic legal system (see, mutatis mutandis, Rojas Morales v. Italy, no. 39676/98, § 42, 16 November 2000). Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1240.85 covering costs under all heads.

C. Default interest

28. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Declares the complaint concerning Article 6 of the Convention admissible;

3. Holds that there has been a violation of Article 6 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,240.85 (one thousand two hundred forty euros and eighty-five cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
Deputy RegistrarPresident

 

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