FIFTH SECTION

DECISION

Application no . 59284/08 Boštjan ŠILD against Slovenia

The European Court of Human Rights (Fifth Section), sitting on 17 September 2013 as a Chamber composed of:

Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 2 December 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Boštjan Šild, is a Slovenian national, who was born in 1975 and lives in Slovenske Konjice. He was represented before the Court by Mr V. Cugmas, a lawyer practising in Slovenske Konjice.

2 . The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . According to the applicant, on the night of 21 November 2007 he was stopped by two police officers while walking on the street; they asked him to identify himself. The applicant was not told what he was being charged with, so he later went to Slovenjske Konjice Police Station and requested an explanation of the charges against him. He was asked to sign a number of documents, whose content he was uncertain of. Refusing to sign them on that basis, the applicant asked that they be given to him so that he could first consult his lawyer. The police officer on duty told him that this was not possible and that the documents would be sent to his address.

5 . The Government disagreed with the applicant ’ s version of events. They submitted that on the night of 21 November 2007, the applicant had been driving his car through the town of Slovenske Konjice and had been signalled by the police to stop. Instead of doing so, he had driven away at high speed. Followed by the police patrol, he had eventually turned into the courtyard of a private home, stopped the car and fled. At 3.25 a.m. the police officers had seen the applicant return to his car together with another man, R.G. Based on his clothes and hair they had recognised the applicant as the driver and had asked him to undergo a breathalyser test, which he had refused to do, despite having been warned that such a refusal constituted a minor offence. The applicant had been prohibited from driving and a report had been drawn up of his refusal to undergo the test. However, the applicant had also refused to sign the report and had left the scene.

6 . According to the Government, later that night, at 4.35 a.m., the applicant presented himself at Slovenske Konjice Police Station, where he was interviewed and served with a penalty notice for failing to comply with the police order to stop his car and for not carrying his driving license with him. The applicant refused to sign a receipt of acceptance of service, but took the penalty notice, an invoice for the fine imposed by the penalty notice and a copy of the breathalyser test report and left the police station. He returned at 4.50 a.m. and left all those documents on the police duty officer ’ s counter.

7 . On 3 April 2008 the applicant received an overdue reminder letter from the Tax Administration concerning the penalty notice issued by the Slovenjske Konjice Police on 21 November 2007, by which he had been given a fine in the amount of 542 euros (EUR). The letter included a warning that enforcement was forthcoming, as the penalty notice had become enforceable on 8 December 2007. The applicant stated that he had only learnt that the penalty notice had been issued against him upon receiving the Tax Administration ’ s letter. He asked the Slovenjske Konjice Police to send him a copy of the penalty notice.

8 . On 7 April 2008 the applicant obtained a copy of the penalty notice of 21 November 2007. It transpired from the penalty notice that the applicant had been fined for ignoring the police order to stop his car and for not carrying his driving license with him. In addition, the penalty notice included a handwritten note that it had been served on the applicant on 21 November 2007 at 4.35 a.m. Nevertheless, it was not signed by the applicant.

9 . Subsequently the applicant asked the Supreme Public Prosecutor ’ s Office to lodge an extraordinary appeal (request for the protection of legality). He argued that he had never received the penalty notice and had not had an opportunity to respond to it or to challenge it before the courts. He pointed out that while it was noted on the face of the penalty notice that it had been served on him at the police station, his signature was missing and no explanation had been provided in this respect.

10 . On 12 May 2008 the Supreme Public Prosecutor ’ s Office informed the applicant that they would not lodge an extraordinary appeal, as they had been informed by the police that he had in fact been served with the penalty notice at Slovenske Konjice Police Station.

11 . The Supreme Public Prosecutor ’ s Office considered that the issue of whether the penalty notice had actually been served on the applicant or not was a question of fact and thus could not be raised in an extraordinary appeal, a remedy intended to correct errors of law. Moreover, they added that regardless of the fact that the police officers had omitted to make a note of the applicant ’ s refusal to sign the receipt of acceptance of service, his defence rights had not been violated.

12 . 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 emphasised that the penalty notice had never been served on him. Referring to the Minor Offences Act, he pointed out that if a penalty notice cannot be served on an accused directly at the place of the offence, it should be served on him by mail, together with a notice informing him that he can challenge it. None of the procedures prescribed by law for serving a penalty notice on an accused had been followed in his case.

13 . On 8 October 2008 the Constitutional Court rejected the constitutional appeal. The decision was served on the applicant on 14 October 2008.

14 . On 15 November 2010 the Slovenske Konjice Local Court stayed the proceedings instituted against the applicant for refusing to take the breathalyser test for lack of evidence.

B. Relevant domestic law and practice

1. Remedies in minor offences proceedings

15 . For details of the relevant provisions of the Minor Offences Act (hereinafter referred to as “the MOA”) see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). Fines issued in so-called “summary proceedings” can be challenged by means of a request for judicial review, which must be lodged within eight days from the receipt of an administrative authority ’ s decision concerning a minor offence. An application for such review can be lodged on the grounds of a violation of procedural or substantive law, erroneous or insufficient establishment of the facts, and/or a challenge to the sanction imposed. It is dealt with by a single judge at a court handling minor offences, which is normally a local court (sections 59-66 of the MOA). Pursuant to the provisions of the MOA and subject to certain conditions specified therein, a first-instance decision rendered by a local court can be appealed against before a higher court (section 66 of the MOA). The judicial decisions rendered in minor offences proceedings may exceptionally be challenged before the Constitutional Court by means of a constitutional appeal if they raise an important constitutional question exceeding the importance of the actual case (section 55a(2) and (3) of the Constitutional Court Act).

2. Service of penalty notices in minor offences summary proceedings

16 . The MOA requires the authorities vested with the power to impose fines on offenders for minor offences in summary proceedings to personally serve the penalty notices issued in these proceedings on the offenders. In this respect, section 57 of the MOA, in so far as relevant, reads as follows:

Section 57

“(1) When an authorised official of an authority [empowered to impose a fine for] a minor offence personally detects a minor offence or establishes a minor offence by using appropriate technical equipment or devices, he or she shall immediately, and on the spot, issue and serve a penalty notice on the offender ...

...

(5) Where the penalty notice cannot be issued and served on the offender immediately and on the spot, it shall be served in accordance with the provisions of the General Administrative Procedure Act ... ”

17 . Pursuant to the provisions of the General Administrative Procedure Act (hereinafter referred to as “the GAP Act”), official documents such as decisions and orders in which time-limits are set for performing procedural acts must be served personally on the addressee. If service cannot be effected in this manner, a notice shall be left in the addressee ’ s mailbox, fixed to the door of his or her place of residence, or in some other appropriate place informing the addressee where the official document is to be found and that it must be collected within 15 days. In the event that the addressee fails to collect the official document within this time-limit, service is considered to have been effected on the day of the expiration of the time-limit and the official document may be left in the addressee ’ s mailbox.

3. Finality and enforceability of penalty notices issued in minor offences proceedings

18 . As regards the finality and enforceability of penalty notices, section 57(3) of the MOA specifies that a request for judicial review can be lodged within eight days from receipt of a penalty notice. Otherwise, pursuant to section 57(4) of the MOA, as in force at the time of the events at issue, the penalty notice would become final eight days after receipt. A final penalty notice must be paid within another eight days. If payment was made within this period, the offender was only required to pay half of the amount of the fine imposed. If, on the other hand, the fine was not paid within that eight ‑ day period, it would become enforceable and thus allow for the use of debt collection enforcement methods. In this respect, the relevant provisions of the MOA imposed a duty on the police station which had issued the fine to submit the unpaid penalty notice, stamped with a certificate of finality and enforceability, for execution to the competent tax authority.

19 . A certificate of finality and enforceability is an instrument permitting the enforcement of pecuniary obligations emanating from administrative decisions and orders. As regards its legal character, it is considered a certificate within the meaning of section 179 of the GAP Act, which provides, in so far as relevant:

“(1) State agencies ... shall issue certificates and other documents ... concerning factual matters of which official records are kept.

... ”

4. Consequences of an incorrect finding as to the finality and enforceability of a penalty notice

20 . Section 180a of the GAP Act, which regulates the situations in which a party contends that a certificate issued pursuant to section 179 is not in conformity with the information contained in official records and therefore should not have been issued, in so far as relevant, reads as follows:

“ ...

(4) If any party alleges on the basis of the evidence at their disposal that a certificate or other document that was issued to them pursuant to sections 179 or 180 is not in conformity with the information kept in official records, that party may request that the certificate or other document be modified. Within 15 days, the authority shall issue a modified certificate or other document or a decision rejecting the request for modification of a certificate or other document or for a new certificate or other document.”

Under domestic case-law, such a situation occurs, inter alia , where a penalty notice has been furnished with a certificate of finality and enforceability without having previously been served on the person concerned, therefore depriving that person of an opportunity to acquaint himself with its contents and to make use of any available remedies with which it could be challenged. Accordingly, a request can be made to the authority which issued the certificate that it be revoked.

21 . The Administrative Court held in its judgments no. U 1672/2000 and U 2191/2000 of 31 January 2002 that, in the absence of a certificate of enforceability, the penalty notices were deemed not to have been served on the applicants, and were therefore not enforceable. This absence of an enforceable order precluded the fines from being collected. Moreover, in judgments nos. U 1300/2004 of 25 October 2005; U 464/2008 of 9 June 2010; II U 31/2009 of 8 September 2010; II U 354/2009 of 9 February 2011; and I U 1498/2011 of 31 December 2011 the court considered administrative actions lodged by minor offenders against whom enforcement proceedings had been instituted. They had all claimed that enforcement was not permissible, as they had not been served with penalty notices. By contrast, in these cases the penalty notices had been furnished with certificates of enforceability. The court held that the tax authorities were only competent to collect the debts resulting from the minor offences and not to assess the veracity of the underlying information, and were therefore required to consider the certificates of enforceability as evidence of official data, whose accuracy was not to be questioned. It underlined that the applicants should have challenged the enforceability certificates before the authorities competent to establish enforceability, namely before the police stations which had issued the challenged penalty notices. In this respect, in its judgment no. II U 31/2009 the court rejected the applicant ’ s argument that he had not been served with a penalty notice by stating:

“Certificates of finality and enforceability have the legal effect of a certificate referred to in sections 179, 180 and 180a of the GAP Act. As regards challenging such a certificate ... section 180a(4) of the Act provides that a party who alleges that a certificate or other document issued pursuant to sections 179 or 180 of the GAP Act is not in conformity with the information contained in official records may request that the certificate or other document be modified.

...

If a party objects to the content of a certificate ... issued pursuant to the rules of administrative procedure, he or she may seek to have it modified by the authority which issued the disputed certificate.”

22 . A revocation of an enforceability certificate gives rise to the termination of enforcement proceedings. In this respect, section 155 of the Tax Procedure Act provides:

“(1) The tax authority shall of its own motion or at the request of the debtor, by way of an order, terminate the tax enforcement proceedings in full or in part, provided that:

...

5. the instrument permitting enforcement has been finally revoked, amended or annulled, or the certificate of enforceability has been revoked;

...

(2) The tax authority shall, by way of an order of tax enforcement termination, annul or abrogate the actions which have already been carried out under the tax enforcement proceedings.”

COMPLAINTS

23 . The applicant complained that his rights under Article 6 of the Convention had been violated, as he had been unable to challenge the penalty notice, which he asserted had never been served on him in breach of his right of access to court. In addition, he complained under Article 13 of the Convention that he had had no remedy at his disposal to redress the situation. In particular, he argued that the MOA did not provide for the reopening of proceedings and that he had therefore been left with no other option than to request the Public Prosecutor ’ s Office to lodge an extraordinary appeal, which it had declined to do.

THE LAW

A. Complaint under Article 6 of the Convention

24 . The applicant complained that he had not been served with the penalty notice and had thereby been prevented from challenging it in judicial proceedings in breach of his right to access to court. To this end, he relied on Article 6 § 1 of the Convention, which, as 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 ...”

1. The parties ’ arguments

25 . The Government argued that the complaint was inadmissible on the grounds of non-exhaustion of domestic remedies. They submitted, firstly, that the penalty notice had in fact been served on the applicant, who had therefore been acquainted with the charges against him and the fine he had been ordered to pay. In this respect, the Government relied on copies of the police report and the penalty notice containing a note that service had been effected on 21 November 2007 at 4.35 a.m. at Slovenske Konjice Police Station. Therefore, the Government contended that the applicant could have challenged the penalty notice by lodging a request for judicial review (see paragraph 15 above).

26 . Secondly, the Government asserted that, assuming that the applicant had not been properly served with the penalty notice, it had become neither final nor enforceable. Therefore, the applicant could have asked Slovenske Konjice Police Station, the competent authority in his case, to revoke the enforceability certificate. In support of their arguments, the Government relied on the case-law of the Administrative Court, notably judgments nos. U 1672/2000 and U 2191/2000 of 31 January 2002; U 1300/2004 of 25 October 2005; U 464/2008 of 9 June 2010; II U 31/2009 of 8 September 2010; II U 354/2009 of 9 February 2011; and I U 1498/2011 of 31 December 2011. In their further submissions, the Government also averred that a successful challenge to the certificate of finality and enforceability would have resulted in the service of the penalty notice on the applicant, which would have enabled him to lodge a request for judicial review before the competent court.

27 . The applicant contested the Government ’ s view that he could have challenged the certificate of finality and enforceability, claiming that as he had failed to object to the penalty notice pursuant to the MOA, the penalty notice had become final and its content, including the enforceability certificate, had been deemed correct. Moreover, he argued that even assuming that the certificate had been revoked, such proceedings could not have led to the establishment of the facts concerning the minor offence or to a reconsideration of the decision.

2. The Court ’ s assessment

28 . The general principles concerning exhaustion of domestic remedies are set out in Sejdovic v. Italy [GC], no. 56581/00, §§ 43-46, ECHR 2006 ‑ II.

29 . In the present case, it is not disputed between the parties that the applicant did not exhaust any of the remedies available in minor offences proceedings. Neither is it in dispute that these remedies could be regarded as effective for challenging the facts of the case and obtaining a reconsideration of the penalty notice. However, the applicant maintained that he had not had the opportunity to use these remedies in order to elucidate the events in respect of which the penalty notice had been issued, as the order had not been served on him.

31 . As regards the present case, the Court notes that the penalty notice issued with respect to the applicant ’ s alleged refusal to stop the car and failure to carry a licence was not signed by him; neither did it bear any mention of his alleged refusal to accept service of it. According to the applicant, the lack of either of these two pieces of evidence was contrary to the requirements of domestic law; the Government did not dispute this. Moreover, the penalty notice had not been sent to the applicant ’ s address in accordance with the requirements of the GAP Act. Having regard to this and the conflicting accounts of the events in question submitted by the applicant and the Government, the Court cannot conclude that the applicant was properly informed of the offences he was accused of committing, and thus able to use the remedies provided by the MOA. It will therefore proceed to assess the effectiveness of the remedy available to the applicant to challenge the finality and enforceability of the penalty notice.

32 . The Court notes that under domestic law the finality and enforceability of penalty notices is an issue of fact, which is established by means of a certificate of finality and enforceability. In this connection, it transpires from the domestic jurisprudence that, regardless of whether it is furnished with a certificate to that effect, a penalty notice cannot acquire the character of finality and enforceability if it has not been properly served on the alleged offender (see paragraph 21 above, and judgments nos. U 1672/2000 and U 2191/2000 of 31 January 2002). In the event that this nevertheless occurs, the certificate can be challenged by means of a request for its revocation before the authority competent to establish the finality and enforceability (see paragraph 21 above, judgments of the Administrative Court nos. U 1300/2004 of 25 October 2005; U 464/2008 of 9 June 2010; II U 31/2009 of 8 September 2010; II U 354/2009 of 9 February 2011; and I U 1498/2011 of 31 December 2011).

33 . The Court is thus unable to accept the applicant ’ s argument that he could not have successfully challenged the certificate, as the penalty notice had in fact become final and enforceable due to his failure to use the remedies available to him under the MOA. Namely, it clearly follows from the materials that the revocation of the certificate is intended to remedy the very situation complained of by the applicant. Moreover, in the present case enforcement had not yet been instituted, which means that a timely request for the revocation of the certificate of finality and enforceability could have effectively prevented enforcement of the penalty notice.

34 . The applicant went on to argue that, even assuming he had successfully challenged the certificate of finality and enforceability, he could not have obtained reconsideration of the decision regarding his alleged road traffic offence. However, the Court agrees with the Government that the very purpose of the revocation of a certificate of finality and enforceability is to ensure proper service of the penalty notice on the alleged offender and thus enable him to have his case reconsidered by making use of the remedies available with regard to proceedings concerning road traffic offences.

35 . In view of the foregoing, the Court finds that a request for revocation of the certificate of finality and enforceability would have been capable of providing redress to the applicant in respect of his complaint and therefore constituted an effective remedy for the purposes of Article 35 § 1 of the Convention. In the absence of any special circumstances absolving the applicant from the requirement to exhaust this remedy, the Court considers that his complaint regarding the violation of his right of access to court should be rejected for non-exhaustion of domestic remedies.

36 . It follows that the Government ’ s objection is well-founded and that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.

B. Complaint under Article 13 of the Convention

37 . The applicant complained that, having only learnt of the existence of the penalty notice issued against him once it had already become final and enforceable, he had not had any effective remedy by which he could have challenged it. He relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

38 . The Court has already found that a request for the revocation of a certificate of finality and enforceability would have provided the applicant with an effective remedy in respect of his complaint under Article 6 of the Convention. That finding is valid also in relation to the complaint under Article 13 of the Convention.

39 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President