CASE OF MILENOVIĆ v. SLOVENIA

FIFTH SECTION

CASE OF MILENOVIĆ v. SLOVENIA

(Application no. 11411/11)

JUDGMENT

STRASBOURG

28 February 2013

FINAL

28/05/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Milenović v. Slovenia,

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

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 5 February 2013,

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

PROCEDURE

1. The case originated in an application (no. 11411/11) 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 Goran Milenović (“the applicant”), on 9 February 2011.

2. The applicant was represented by Mr B. Gvozdić, a lawyer practising in Sežana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.

3. The applicant complained, in particular, of a violation of Article 6 of the Convention, in so far as he had not been afforded a public hearing at which he and the witnesses could have been heard.

4. The application was communicated to the Government on 21 November 2011.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Ankaran. He owns a bar located in Koper, Slovenia.

A. First set of proceedings before Ilirska Bistrica Local Court (concerning the alleged offence of 1 June 2008)

6. On 14 November 2008 the Market Inspectorate of the Republic of Slovenia (hereinafter referred to as “the Inspectorate”) issued a notice informing the applicant that he had been accused of operating his bar at 2.15 a.m. on 1 June 2008, which was allegedly outside regular opening hours. The Inspectorate also noted that this information had been received from Koper Police Station. In accordance with the relevant provisions of the Minor Offences Act governing summary proceedings, the applicant was requested to submit a written statement within five days.

7. On 19 November 2008 the applicant submitted a written statement in which he disputed the allegation that his bar had been open at 2.15 a.m. He further pointed out that there had been no customers in the bar at that time and that the police had not approached him when the alleged offence had been observed. He proposed that he and two employees who had worked in the bar that evening be heard by the court.

8. On 25 November 2008 the Inspectorate, without examining the applicant or the proposed witnesses, issued a decision finding the applicant guilty of committing a regulatory offence under point 3 of section 21(1) of the Hospitality Industry Act. As regards the opening hours, it referred to the “Rules on criteria for determining opening hours of restaurant facilities and farms providing hospitality services” (hereinafter referred to as “the Rules”) and section 12 of the Hospitality Industry Act, and noted that the applicant’s bar had operated beyond the statutory opening hours without having requested an extension of opening hours (see paragraph 24 below). It imposed a fine of 1,200 euros (EUR) and ordered the reimbursement of costs in the amount of EUR 100. It also drew the applicant’s attention to the possibility of imprisonment if the fine was not paid.

9. On 28 November 2008 the applicant lodged a request for judicial review in which he alleged that the facts had been wrongly established and that his rights enshrined in Article 29 of the Slovenian Constitution had been violated. He disputed the allegation that his bar had been open and that he had had customers at the time in question. He emphasised, among other things, that the police had not approached him on the date the offence had allegedly been committed and that he and the witnesses had not subsequently had an opportunity to be heard by the Inspectorate. Moreover, the decision had not provided any explanation as to why his proposal to give evidence had been rejected; nor had it stated the permitted opening hours for the applicant’s bar or specified the time during which he had allegedly been in breach of the relevant regulation. The applicant again proposed that he and the aforementioned witnesses be heard by the court.

10. As the Koper Local Court, which was competent to decide on the applicant’s request, was experiencing a substantial backlog, the applicant’s case was transferred to the Ilirska Bistrica Local Court, which on 12 January 2010, referring to section 65 of the Minor Offences Act, delivered a judgment rejecting the applicant’s request. It took into account the notice of 14 November 2008, the impugned decision and “the facts, which had been directly observed by police officers on the spot.” The court found that the circumstances of the alleged offence had been properly established by the Inspectorate and that the applicant had had an opportunity to express his opinion on the charges but had not taken it. It also found that the Inspectorate had adequately addressed the issue of bar opening hours for owners who did not have a licence for extended opening hours. The court drew the applicant’s attention to the fact that no appeal lay against the judgment. The judgment was served on the applicant on 26 January 2010.

11. On 15 March 2010 the applicant lodged a constitutional appeal. Relying on Article 29 of the Constitution and Article 6 of the Convention, he alleged in particular that his defence rights had been breached in that he had not had an opportunity to adduce evidence or to be heard before the court. In addition, he complained that the Ilirska Bistrica Local Court had come to a different decision from the Koper Local Court on the same matter (see paragraph 20 below). Lastly, the applicant maintained that the issue at stake concerned the minimum safeguards that should be respected in summary proceedings, and was therefore of constitutional importance. He pointed out that sanctions in regulatory offences were often more severe than those in traditional criminal proceedings, and the accused had considerably fewer procedural rights and no remedies apart from judicial review.

12. The Constitutional Court dismissed the applicant’s constitutional appeal on 6 January 2011, referring to point three of section 55b (1) of the Constitutional Court Act, read together with point four of section 55a (2) of that Act. The Constitutional Court’s decision was served on the applicant on 12 January 2011.

B. Second set of proceedings before Ilirska Bistrica Local Court (concerning the alleged offence of 5 October 2008)

13. On 13 November 2008 the Inspectorate issued a notice informing the applicant that he had been accused of operating his bar on 5 October 2008 at 3.45 a.m., which was allegedly outside regular opening hours. The Inspectorate also noted that this information had been received from Koper Police Station. The applicant was asked to submit a written statement within five days, in accordance with section 55 (4) of the Minor Offences Act.

14. On 19 November 2008 the applicant submitted a written statement in which he disputed the allegation that his bar had been open at 3.45 a.m. and submitted that a private party had been held there. He also maintained that the police had not approached him when the alleged offence had been observed. Lastly, the applicant proposed that he and two employees who had been working in the bar during the evening be heard.

15. On 26 November 2008 the Inspectorate, without examining the applicant or the proposed witnesses, issued a decision finding the applicant guilty of committing a regulatory offence under point 3 of section 21 (1) of the Hospitality Industry Act. As regards the opening hours, it referred to the Rules and section 12 of the Hospitality Industry Act and noted that the applicant’s bar had been open beyond the statutory opening hours without requesting a license for extended opening hours. It imposed a fine of EUR 1,200 euros and ordered the reimbursement of costs in the amount of EUR 100. It also drew the applicant’s attention to the possibility of imprisonment for failure to pay the fine.

16. On 1 December 2008 the applicant lodged a request for judicial review in which he alleged that the facts had been wrongly established and that his rights enshrined in Article 29 of the Slovenian Constitution had been violated. He disputed the allegation that the bar had been open at the time in question and emphasised, among other things, that the police had not approached him on the day the offence was allegedly committed, and that he and the witnesses had not subsequently been heard by the Inspectorate. Moreover, the decision had not provided any explanation as to why his proposal to give evidence had been rejected. The applicant again proposed that he and the aforementioned witnesses be heard by the court.

17. Also in this case the jurisdiction was transferred to the Ilirska Bistrica Local Court, which on 12 January 2010, referring to section 65 of the Minor Offences Act, delivered a judgment rejecting the applicant’s request for judicial review. It took account of the notice of 13 November 2008, the impugned decision, the applicant’s statement of 19 November 2008 and the facts in the case which had been directly observed by police officers on the spot. The court found that the circumstances of the alleged offence had been properly established by the police and that the applicant had had an opportunity to express his opinion on the charges. The court noted that “the applicant had alleged that there had been a private party in the bar which he had not organised”. It found that the Inspectorate had adequately addressed the issue of bar opening hours for owners who did not have a licence for extended opening hours. The court also drew the applicant’s attention to the fact that no appeal lay against the judgment. The judgment was served on the applicant on 26 January 2010.

18. On 15 March 2010 the applicant lodged a constitutional appeal adducing the same arguments as in the first set of proceedings.

19. On 6 January 2011 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 12 January 2011.

C. Proceedings before the Koper Local Court

20. In the third set of proceedings concerning another offence of operating the bar beyond regular opening hours, on 17 September 2008 the Koper Local Court upheld the applicant’s request for judicial review of the Inspectorate’s decision concerning the offence which had allegedly been committed at 1.40 a.m. on 2 December 2007. The Koper Local Court quashed the Inspectorate’s decision on the grounds that it lacked any information as to the applicant’s registered opening hours. This information was, in the court’s view, essential in establishing whether the bar had been open beyond the registered opening hours.

II. RELEVANT DOMESTIC LAW

21. For the relevant provisions of the Minor Offences Act and the Constitutional Court Act see Suhadolc v. Slovenia, ((dec.) no. 57655/08, 17 May 2011). In addition, the following domestic provisions are relevant to the present case.

22. Article 29 of the Slovenian Constitution, which concerns legal guarantees in criminal proceedings, reads as follows:

“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, or to admit guilt.”

23. The relevant provisions of the Hospitality Industry Act (Zakon o gostinstvu, Official Gazette 93/2007) read as follows:

Section 12

“Criteria for the determination of the opening hours of restaurants and bars ... shall be provided in rules issued by the Ministry ...

A restaurant or a bar owner ... shall set his opening hours in line with the above-mentioned rules and shall register them at the local authority that has jurisdiction over these matters.

...”

Section 21

“A company or an individual owner shall be punished for an offence with a fine of no less than EUR 1,200 and no more than EUR 40,000 if

...

– he does not set his opening hours or fails to register them with the local authority that has jurisdiction over these matters; if he does not operate within the set opening hours; ...”

24. The Rules on criteria for determining opening hours of restaurant facilities and farms providing hospitality services (“the Rules”, Pravilnik o merilih za določitev obratovalnega časa gostinskih obratov in kmetij, na katerih se opravlja gostinska dejavnost, Official Gazette no. 78/99 with amendments) in force at the relevant time, in so far as relevant, read as follows:

Section 3

“An owner of a restaurant facility, bar ... shall set his regular opening hours ... as follows:

...

– restaurants, bars, cafeterias and agri-tourism farms between 6 a.m. and 2 a.m. the following day.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE LACK OF A HEARING

25. The applicant complained under Article 6 of the Convention that his right to a public hearing at which he could defend himself, examine evidence and have evidence examined, had been breached in the proceedings before the Ilirska Bistrica Local Court.

Article 6, in so far as relevant, reads as follows:

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

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or ....;

(d) to examine or have examined witnesses against him ...;

...”

A. Admissibility

26. The Government argued that the part of the application relating to the second set of proceedings before the Ilirska Bistrica Local Court should be rejected as manifestly ill-founded.

27. The Court disagrees with the Government and finds that the above complaint concerning both sets of proceedings before the Ilirska Bistrica Local Court 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

28. The applicant argued that he had not been given an opportunity to be heard in the proceedings before the Ilirska Bistrica Local Court. He cited the Court’s judgment in Flisar v. Slovenia, no. 3127/09, 29 September 2011. He also argued that despite his requests, the court had not heard the relevant witnesses.

29. The Government argued that the applicant had had an opportunity to present evidence in his favour in his reply to the Inspectorate as well as in his request for judicial review. With respect to the second set of proceedings before the Ilirska Bistrica Local Court, the applicant had claimed that a private party had been held in his bar. In the Government’s view, the issue as to whether a private party was considered as “operation of the bar” was of a legal nature. It had therefore been unnecessary to hear the applicant and examine witnesses in this set of proceedings. As regards the first set of proceedings, the Government argued that the timing of the offence had been obvious from the Inspectorate’s notice and decision. The applicant had failed to show that he had had permission to open his bar at the time in question.

30. The Court notes that the applicable principles concerning the right to an oral and public hearing are outlined in the judgments in the cases of Jussila v. Finland ([GC], no. 73053/01, §§ 40-45, ECHR 2006‑XIII) and Flisar v. Slovenia (cited above, §§ 33-35).

31. As to the present case, the Court observes that the impugned domestic proceedings were conducted pursuant to the Minor Offences Act. It further notes that, as in the Flisar case, the offences in question were observed by police officers in person, who had then informed the Inspectorate of their findings. The applicant was invited to reply to the charges, which he did. Disputing the allegation that the bar had been operating at the time in question, he requested that he and two employees be heard. In both sets of proceedings complained of by the applicant, the Inspectorate, without taking the proposed evidence or explaining why they had refused to hear it, imposed a fine of EUR 1,200 on the applicant. The applicant challenged those decisions before the local court, which was required to examine the facts and the law in both cases. The applicant disputed the facts on which the imposition of the fine had been founded, requesting again that he and two witnesses be heard, this time before the court. The local court did not hear the evidence requested by the applicant. Like the Inspectorate, it based its judgments on the police’s finding that the applicant’s bar had been operating beyond 2 a.m. and the finding that the applicant had not had permission for extended opening hours. While the Court could accept that the latter point was verifiable on the basis of written evidence or the lack of it, the former point – that is the question whether the applicant’s bar had actually been open at the time in question – concerned facts allegedly observed by the police but disputed by the applicant.

32. In both sets of proceedings complained of, the authorities made no reference to any evidence other than the police allegations which would confirm that the bar had been open at the disputed time. In this connection the Court reiterates that when officers’ observations are the sole basis for a conviction, an oral hearing may be essential for the protection of the accused person’s interests in that it can put the credibility of the police officers’ findings to the test (see Berdajs v. Slovenia (dec.), no. 10390/09, 27 March 2012). The Court furthermore does not find persuasive the Government’s argument that, in the second set of proceedings, the issue of whether the applicant’s bar was operating in breach of the Rules was of a merely legal nature owing to the applicant’s acknowledgement that a private party had been held there. It notes that the domestic court had given no explanation as to the significance of the applicant’s statement to this effect and that the Government did not refer to any relevant legislation or courts’ established practice indicating that the holding of a private party was, as a matter of principle, considered tantamount to operating the bar.

33. The Court lastly notes that while the local court decided not to grant the applicant’s requests to hear evidence, no reasons were provided in the judgments as to why the hearing was considered unnecessary (see, mutatis mutandis, Gabriel v. Austria, no. 34821/06, § 31, 1 April 2010; Kugler v. Austria, no. 65631/01, § 52, 14 October 2010; and, by contrast, Jussila, cited above, § 48).

34. In view of the above, the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a public hearing before the Ilirska Bistrica Local Court at which the applicant and the witnesses could have been examined. The Court does not find it necessary to consider the case separately in the light of Article 6 § 3 (c) and (d) (see, mutatis mutandis, Kallio v. Finland, no. 40199/02, § 52, 22 July 2008, and Hannu Lehtinen v. Finland, no. 32993/02, § 50, 22 July 2008).

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE DIVERGENCES OF THE COURTS’ DECISIONS

35. The applicant complained that the Ilirska Bistrica Local Court, on the one hand, and the Koper Local Court (see paragraph 20 above), on the other, had reached different conclusions in his cases, which were identical in terms of facts and the arguments he had developed in his requests for judicial review. This, in the applicant’s view, rendered the proceedings before the Ilirska Bistrica Local Court unfair.

Article 6, in so 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 ...”

36. The Government contested the applicant’s argument. They insisted that the two sets of proceedings concerned different situations and could not be compared. In particular, the proceedings before the Koper Local Court concerned the operation of the bar at 1.40 a.m., which might have been within regular opening hours. For that reason, the lack of any information as to the registered opening hours of the bar led to the Inspectorate’s decision being quashed.

37. The applicant argued that the Koper Local Court had required that facts concerning the bar’s regular opening hours be set out in the Inspectorate decision, as this was considered to be an element of the offence, whereas the Ilirska Bistrica Local Court had not insisted on that.

38. The Court takes note of the Government’s arguments based on the difference in the factual background of the proceedings before the Ilirska Bistrica Local Court and those before the Koper Local Court. It further notes that the Inspectorate’s decisions issued in the first and second set of proceedings, unlike the one issued on 17 September 2008, referred to the relevant provisions of the Hospitality Industry Act and the Rules. They included an explanation as to the fact that the applicant’s bar had been operating beyond the regular opening hours stipulated in the Rules and that he had not requested an extension of opening hours (see paragraphs 8 and 15 above). The Inspectorate’s third decision, which was quashed by the Koper Local Court, concerned a situation in which the applicant’s bar had been open within the time-limit stipulated in the Rules. The situations cannot therefore be considered similar, and the Ilirska Bistrica Local Court’s judgments do not appear arbitrary (see, by contrast, Ştefănică and Others v. Romania, no. 38155/02, § 34, 2 November 2010).

39. Having regard to the foregoing, the Court finds that the above complaint is unsubstantiated and should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

40. The applicant further complained under Article 13 of the Convention that no effective remedies had been available to him to challenge his conviction. As the judicial review had been inadequate, there had been no possibility to appeal; a constitutional appeal could have been lodged in exceptional circumstances but had not been available in cases such as his. Lastly, he complained that the administrative authorities and the local court had not given reasons for their decisions, which had compromised his right to an effective remedy.

41. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

42. 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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

44. The applicant claimed EUR 2,600 in respect of pecuniary damage, which consisted of the sums paid for the fines and the costs incurred in the domestic proceedings complained of.

45. The Government argued that the applicant had failed to prove that he had actually paid the above amount with respect to the penalties and fees imposed on him in the domestic proceedings. Moreover, they argued that there had been no causal link between the alleged violation and the damage sought, because even if the applicant had been heard and the witnesses examined by the court, the result might not have been any different. They requested the Court not to award any damages in the event of the finding of a violation.

46. The Court cannot speculate as to the outcome of the proceedings concerned had there been no violation of the Convention (see Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999-II). It therefore rejects the claim in respect of pecuniary damage. As regards non-pecuniary damage, the Court, in the absence of any claim by the applicant makes no award under this head.

B. Costs and expenses

47. The applicant also claimed EUR 688.53 for costs and expenses incurred before the Court.

48. The Government argued that this claim was neither specified nor supported by any documentation.

49 According to the Court’s case-law, an applicant is entitled to 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. The Court notes that in the present case the applicant did not explain his claim or submit supporting documents or detailed information showing that the costs claimed had been actually and necessarily incurred (see S.I. v. Slovenia, no. 45082/05, § 87, 13 October 2011). The Court therefore rejects this claim.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaint concerning the lack of a hearing under Article 6 of the Convention admissible and the remainder of the application inadmissible;

2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a hearing before the Ilirska Bistrica Local Court;

3. Holds unanimously that there is no need to examine separately the applicant’s above-mentioned complaint under Article 6 § 3 (c) and (d) of the Convention;

4. Dismisses by six votes to one the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

M.V.
C.W.

PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I agree with the judgment insofar as it relates to the admissibility and the merits of the complaints (operative points 1 to 3).

However, I respectfully disagree with the decision on just satisfaction (operative point 4). The majority dismisses the claim for just satisfaction. In my opinion the violation found, resulting from the inability for the applicant to present his views and to question the only witness against him, is of such a nature that the Court should award the applicant just satisfaction of some kind. It may be true that in his submission to the Court he referred only to “pecuniary” damage, but it is difficult for me to imagine that in doing so he implicitly indicated that he was not asking for any just satisfaction for “non-pecuniary” damage. Neither do I think that the Court should attach decisive weight to the way the applicant formulated his claim.

Full & Egal Universal Law Academy