FIFTH SECTION
Application no. 59284/08
Boštjan ŠILD
against Slovenia
lodged on 2 December 2008
STATEMENT OF FACTS
The applicant, Mr Boštjan Šild, is a Slovenian national who was born in 1975 and lives in Slovenske Konjice. His application was lodged on 2 December 2008. He was represented before the Court by Mr V. Cugmas, a lawyer practising in Slovenske Konjice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the night of 21 November 2007 the applicant was stopped by police when walking on the street. He was referred to the Station of the Slovenske Konjice Police where he requested the police to explain him the charges against him which related to his alleged driving. He was given certain documents to sign. Denying that he had driven the car that night, the applicant did not sign the documents but requested to be given them so that he could first show them to his lawyer. The police officer on duty told him that this was not possible and that the documents would be sent to his address.
On 3 April 2008 the applicant received Fiscal Office’s advance warning of execution concerning a payment order imposing on him a fine of 540 euros (EUR) issued by the Slovenske Konjice Police on 21 November 2007. This was the first time the applicant learned that the payment order had been issued against him. He requested the Fiscal Office to send him a copy of the payment order. The latter referred him to inquire about the matter with the Slovenske Konjice Police.
On 7 April 2008 the applicant obtained a copy of the payment order of 21 November 2007 which became final on 8 December 2007. It transpired from the payment order that the applicant was accused of ignoring the police order to stop the car and not carrying with him his driving license.
Subsequently the applicant requested the Supreme Public Prosecutor Office to lodge a motion for the protection of legality. He argued that he had never received the payment order and had no opportunity to reply to it or to challenge it before the court. He pointed out that the while the police officer noted on the payment order that it had been served on the applicant at the police station, the applicant’s signature was missing and no explanation was provided in this respect.
On 12 May 2008 the Supreme Public Prosecutor Office informed the applicant that he had no intention to lodge a motion for protection of legality, finding that the lack of the applicant’s signature and the missing explanation on the payment order could not have had an effect on his defence rights. He further noted that the question as to whether the accused actually received the payment order or not was a question of facts which could not be a subject of the proceeding for protection of legality.
On 22 May 2008 the applicant lodged a constitutional appeal in which he argued that his defence rights had been violated in the above proceedings. In particular, he emphasized that the payment order had never been served on him. Referring to the Minor Offences Act, he pointed out that if the payment order could not be given to the accused directly at the spot, the payment order should be served on the accused by mail, together with a notice that he can reply to it. None of the legally prescribed procedure for serving a payment order on the accused had been followed in his case.
On 8 October 2008 the Constitutional Court rejected the constitutional appeal. It relied on point three of the first paragraph of section 55b read together with point four of the second paragraph of section 55a of the Constitutional Court Act, which provided that a constitutional appeal concerning minor offences should be rejected unless it concerned important legal question. The decision was served on the applicant on 14 October 2008.
B. 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 provisions of the Minor Offences Act (hereinafter referred to as “the MOA”, Official Gazette no. 7/2003) are relevant to the present case:
Section 55
“(1) The administrative authority shall of its own motion, without delay, quickly and in a simple manner establish the facts necessary for a decision concerning the offence.
(2) Before issuing a decision, the administrative authority shall send a written notice to the accused, who had no chance to present his view on the matter and could not be informed of his rights. By this notice, the accused should be informed about the offence, about the right to file a written reply .... within five days from the receipt of the notice, as well as of his obligation to present all the facts and evidence in his favour as later he would be precluded to do so.”
Section 57
“...
(5) If the offender cannot be issued with the payment order at the place of the offence, it should be served on him in line with the relevant provisions concerning administrative procedure [that is by serving it at the home address] ...”
COMPLAINTS
The applicant complains that his rights under Article 6 of the Convention have been violated as he was unable to defend himself against the payment order which had never been served on him. As a consequence, he was also unable to challenge it before the court in breach of his right to access to court. In addition, he complains under Article 13 of the Convention that he had no remedy at his disposal to redress the situation. In particular he argues that the possibility of re-opening of proceedings was not provided by the Minor Offences Act and that he was therefore left with no other option but to request the Public Prosecutor to react, which he declined.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 of the Convention? In particular, was the applicant notified of the payment order issued against him and so given an opportunity to reply to it and to challenge it before the domestic court? What were the procedural guarantees in place with a view to ensuring the aforementioned notification?
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