FIFTH SECTION
DECISION
Application no. 44070/08
Viktor MALEC
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 17 February 2015 as a Committee composed of:
Helena Jäderblom, President,
Boštjan M. Zupančič,
Aleš Pejchal, judges,
and Milan Blaško, Deputy Section Registrar.
Having regard to the above application lodged on 8 September 2008,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Viktor Malec, is a Slovenian national, who was born in 1985 and lives in Lovrenc na Dravskem Polju.
The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 November 2006 the police sent the applicant a penalty notice fining him 250.38 euros (EUR) and five penalty points for a minor offence. According to the police statement of facts, the applicant was overtaking a lorry dangerously while a police car was driving in the opposite direction. When the police officer saw the applicant’s car he started to pull over and moved to the right-hand edge of the carriageway in order to let the applicant overtake the lorry and to avoid collision.
On 11 December 2006 the applicant lodged a request for judicial review. He argued that he had been driving behind the lorry which suddenly indicated that it was turning right and started stopping on the escape lane. Since there was no car on the carriageway reserved for traffic in the opposite direction and the road was divided by a broken line, the applicant indicated left and overtook the lorry while it was already on the escape lane. When the police car appeared, he was no longer overtaking the lorry.
On 25 January 2008 the Slovenske Konjice Local Court, without holding an oral hearing, rejected the applicant’s request on the basis of the police’s statement of facts.
On an unspecified date the applicant lodged a constitutional complaint in which he complained that his right to appeal had been violated and that the regulation authorising the police to impose sanctions was unconstitutional.
On 10 March 2008 the Constitutional Court rejected the constitutional complaint as inadmissible.
B. Relevant domestic law
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).
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the lack of a fair hearing, namely that he had been driving carefully, that his conviction had been based only on the police’s findings of facts and that he had no possibility to produce evidence on his behalf.
THE LAW
The applicant invoked Article 6 which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal.”
The Government argued that the complaint was inadmissible on the ground of non-exhaustion of domestic remedies. They submitted that in his constitutional complaint the applicant had failed to complain about the lack of a fair hearing. Instead, he focused on the issue of the right to appeal and the authority of the police to issue penalty notices and the related issue of division of authority.
The applicant did not comment on these submissions.
The Court has previously held that a constitutional complaint in minor offences proceedings may be considered effective for the purposes of Article 35 § 1 of the Convention (see Bradeško and Rutar Marketing d.o.o. v. Slovenia (dec.), no. 6781/09, § 38, 7 May 2013). In the present case this remedy was used, albeit without success. The Court observes that the applicant complained, firstly, that his right to appeal had been violated and, secondly, that the regulation authorising the police to impose sanctions was unconstitutional. However, he did not complain about the lack of a fair hearing in the judicial review proceedings.
In this connection the Court reiterates that Article 35 § 1, in addition to requiring that the applicants should avail themselves of domestic remedies capable of providing redress for their complaints, also requires that the complaints, including the relevant arguments, intended to be made subsequently before the Court should have been raised before the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, in particular, Petruševski v. Slovenia ((dec.), no. 16128/08, 1 April 2014). As the applicant failed to raise the complaint regarding the lack of a fair hearing in his constitutional complaint and thereby provide the Constitutional Court the opportunity of putting right the alleged violation, the Court, in accordance with its subsidiarity role, cannot examine this complaint. It must therefore be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 March 2015.
Milan BlaškoHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy