FIFTH SECTION

DECISION

Application no . 6781/09 Boštjan BRADEŠKO and RUTAR MARKETING D.O.O. against Slovenia

The European Court of Human Rights (Fifth Section), sitting on 7 May 2013 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 regard to the above application lodged on 29 January 2009,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Boštjan Bradeško, is a Slovenian national, who was born in 1965 and lives in Domžale. The applicant company, Rutar Marketing, is a limited liability company registered in Slovenia. They were represented before the Court by M. Grilc, R. Grilc and R. Vouk, lawyers practising in Klagenfurt.

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

A. The circumstances of the case

4. The applicant is the director of Rutar Center, which is a furniture store owned by the applicant company.

5. On 21 September 2005 and 8 March 2006 the Market Inspectorate of the Republic of Slovenia (hereinafter referred to as “the Inspectorate”) carried out inspections at Rutar Center.

6. On 28 April 2006 the Inspectorate issued a decision stating that the applicant company had failed to pay interest to customers who had put down an advance deposit to reserve their orders with the store. The decision illustrated the applicant company ’ s practice by listing three examples which concerned in total approximately 30 euros (EUR). It was found guilty of violating section 41 of the Consumer Protection Act. In addition, the applicant was found guilty of failing to fulfil his supervisory role so as to prevent the above violation from occurring. The applicant company was fined approximately EUR 12,500 and the applicant approximately EUR 1,250.

7. On 15 May 2006 the applicants made an application for judicial review in which they alleged that the Inspectorate had wrongly established the facts; in particular, they argued that by si gning a contract which included the general terms and conditions of purchase, the customers had waived their statutory right to the payment of interest. The applicants contended that the Inspectorate should have checked with each individual customer whether they had waived the ri ght to the payment of such interest before imposing the fines. Consequently, they alleged that the relevant law had been wrongly applied and requested that ordinary court proceedings be opened.

8. On 9 July 2008 the Ljubljana Local Court, in summary proceedings (see paragraph 13 below), delivered a judgment rejecting the application for judicial review as unfounded. Referring to the Inspectorate ’ s decision, reports of the Inspectorate concerning the aforementioned inspections, a written statement by the applicant company of 28 September 2005 relating to one of those reports (dated 21 September 2005), and a report the Inspectorate had drawn up after the application for judicial review had been made, the court found that the facts had been properly established by the Inspectorate and that the application was unfounded. In particular, the court observed that the ri ghts enjoyed by the consumers by virtue of the Consumer Protection Act could not be excluded or limited by contract. Moreover, it found that the customers had not been given the option to pay for the goods in full on delivery. The applicant company was ordered to pay EUR 450 and the applicant EUR 200 in court fees. The judgment, which included an instruction that there would be no right of appeal , was served on them on 4 August 2008.

9. On 25 September 2008 the applicants requested to the Supreme Public Prosecutor to lodge a request for the protection of legality (extraordinary appeal) before the Supreme Court. They argued, in particular, that the sanction had been disproportionate and unlawful. As regards the latter, they argued that the minimum fines prescribed for the offence in question had been reduced to EUR 3,000 for a company and EUR 1,200 for an individual by the Amendment to the Consumer Protection Act, which had entered into force on 15 January 2008. The court, in their submission, had failed to take that into account and to impose a lower fine in accordance with the legislation or, alternatively, give the applicants a right of appeal against the judgment which, under the Minor Offences Act, was permitted in cases where the fine imposed was higher than the minimum fine prescribed . The applicants made no complaints with re gard to the lack of an oral hearing before the local court.

10. On 27 October 2008 the Supreme Public Prosecutor replied to the applicants, informing them that he had no intention of lodging a request for the protection of legality in their case. He explained that although they were correct in arguing that a lower fine should have been imposed on them in line with the amended Consumer Protection Act, their case was not important enough for the development of jurisprudence, nor had they argued that it had had any serious consequences for them.

B. Relevant domestic law and practice

1. Consumer Protection Act

11. Section 41 of the Consumer Protection Act reads, in its relevant part, as follows:

“(1) If the company expressly or implicitly provides for the purchase of goods or services subject to a full or partial deposit and delivers the goods or service after the receipt of that deposit, it is obliged to pay ... interest to the customer ...”

Section 77 provides, in so far as relevant:

“(1) ... a company shall be issued with a fine of between 3,000,000 [approximately EUR 12,500] and 10,000,000 Slovenian tolars if:

...

(2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between 300,000 [approximately EUR 1,250] and 1,000,000 Slovenian tolars.”

12. Section 22 of the Amendment to the Customer Protection Act, which entered into force on 15 January 2008, amended section 77 as follows:

“(1) ... a company shall be issued with a fine of between EUR 3,000 and EUR 40,000 if:

...

(2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between EUR 1,200 and EUR 4,000.”

2. Right of appeal in minor offences proceedings

13. For details of the relevant provisions of the Minor Offences Act, in particular those concerning “summary proceedings”, see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). As regards the right of appeal in such proceedings ‒ an issue of particular relevance to the present case ‒ section 66(2) reads, in so far as relevant, as follows:

“An appeal may be lodged against ... decisions of the court of first instance ... in cases where the fine imposed was higher than the minimum fine prescribed for that offence ...”

Such an appeal may be lodged on any grounds, except points of fact.

3. Request for the protection of legality in minor offences proceedings

14. A request for the protection of legality is an extraordinary appeal that may be lodged by the Supreme Public Prosecutor, either proprio motu or on the initiative of a party to the proceedings or another person entitled to do so under the Minor Offences Act, against any final judicial decision issued in the minor offences proceedings. It can be used to complain about a violation of the rules of substantive or procedural law. These requests are dealt with by a three-member panel of the Supreme Court.

4. Admissibility criteria in the constitutional appeal procedure

Section 55a

“(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant.

(2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions:

- issued in small-claims disputes ...;

- concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal;

- issued in trespass to property disputes;

- issued in minor offence cases.

(3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.”

Section 55b

“(1) A constitutional appeal shall be rejected:

- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;

- if the complainant does not have a legal interest in a decision on the constitutional appeal;

- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;

- if it was not lodged in due time;

...

(2) A constitutional appeal shall be accepted for consideration:

- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or

- if it concerns an important constitutional question which goes beyond the importance of the actual case.

...”

5. The Constitutional Court ’ s case-law on minor offences

16. The Constitutional Court held in its decision no. 120/97 of 21 May 1997 that the guarantees of a fair trial applicable to criminal proceedings should, in principle, also apply to minor offences proceedings, in particular as regards the right of the accused to participate in the proceedings and express their views on all relevant factual and legal issues. The court ’ s views were confirmed on a number of occasions in its subsequent case-law, notably in decision no. Up-3663/07 of 10 September 2009, in which it found that the applicant should have been given the opportunity to exonerate himself from the charges by producing a witness who could confirm that he had not been present at the scene of the minor offence at the time it had been committed.

17. In that decision the Constitutional Court explicitly stated:

“Regardless of the fact that the court is not obliged to accept all the evidence submitted by the defence, it must accept the evidence which is relevant from the perspective of substantive law and for which the defence has shown with a sufficient degree of probability that it exists and is legally relevant. The court may dismiss evidence submitted if taking further evidence is redundant because the case is clear, if the fact to be proved by the evidence submitted has already been proved or has no influence on the case, or if the means of evidence are unsuitable or unattainable.”

COMPLAINTS

19. The applicants complained under Article 6 of the Convention that they had been unable to plead their case effectively, that there had been no public and adversarial hearing and that the penalty imposed on them had been disproportionate to the alleged offence, which concerned only approximately EUR 30.

20. Under Article 7 of the Convention, the applicants complained that the local court had failed to apply the amended version of the relevant legislation which had reduced the minimum fine which could be imposed for the offence in question.

21. Lastly, under Article 13, they complained that they had been denied an effective remedy to obtain redress for the unlawfully imposed fine on the grounds that their case had not raised an important constitutional question.

THE LAW

A. Complaints under Articles 6 and 7 of the Convention

22. The applicants complained that they had not been given the opportunity to be heard at an oral hearing and that the penalty imposed on them was disproportionate to the alleged offences. To this end, they 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 ...”

23. They further complained that a heavier penalty was imposed on them than the minimum fine applicable at the time of the proceedings, in breach of Article 7 § 1 of the Convention, which, as far as relevant, reads as follows:

“1. ...Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

1. The parties ’ arguments

24. The Government argued that the complaints were inadmissible on the ground of non-exhaustion of domestic remedies. They submitted, firstly, that contrary to the incorrect instruction in the judgment of the local court, in which it was stated that there was no right of appeal, the applicants, who had been represented by a lawyer and were therefore not in ignorance of the law, could have lodged an appeal by virtue of section 66(2) of the Minor Offences Act.

25. Moreover, the Government submitted that if the incorrect instruction in the judgment had resulted in them suffering pecuniary damage, the applicants could lodge a civil claim against the State for compensation.

26. Secondly, the Government contended that the applicants should have availed themselves of the constitutional appeal, which in their view constituted an effective remedy for redressing violations pertaining to the lack of an oral hearing in minor offences proceedings. In support of their argument, they relied on the recent case-law of the Constitutional Court, notably decisions nos. Up-486/03 of 9 July 2004; Up-120/97 of 21 May 1997; Up-751/02 of 11 November 2004; Up-3663/07 of 10 September 2009; Up-762/03 of 7 April 2004; Up-953/07 of 9 April 2009; Up-1544/10 of 21 June 2012; and Up-1293/10 of 21 June 2012. The Government maintained that the applicants had provided no evidence to suggest that the constitutional appeal was inadequate or ineffective; nor had they shown that there were special circumstances which relieved them of the requirement to use this remedy.

27. The applicants disputed the Government ’ s view that they had been given the opportunity to lodge an appeal, arguing that the local court had explicitly stated in its judgment that an appeal was not permitted, and that the judgment had therefore become final, notwithstanding that section 66(2) of the Minor Offences Act in principle allowed such appeals. The applicants added that in their view the objection of non-exhaustion of domestic remedies could not be raised in cases where a remedy which in principle was available could not be used as a result of a domestic court ’ s legal perception regarding its permissibility.

28. As regards bringing a civil claim for damages, the applicants maintained that a requirement to use this remedy, in addition to the remedies available in the main proceedings, would constitute a denial of the effective protection of their rights and legal interests, as they would have to pass through all the domestic levels of court for a second time.

29. Lastly, in respect of the availability of the constitutional appeal, the applicants asserted that in reality a legal remedy could not be considered effective where its admissibility depended on whether serious consequences had been suffered as a result of an alleged violation of human rights and whether it concerned an important constitutional question. The applicants, claiming that the proceedings in question concerned a small-claims dispute, argued that this type of dispute could not, by definition, lead to any serious consequences. Thus, they had had no prospects of success before the Constitutional Court.

2. The Court ’ s assessment

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

31. In the present case, the Government objected that the applicants had failed, inter alia , to raise their complaints in a constitutional appeal. The applicants, on the other hand, maintained that such an appeal had had no prospects of success, as their case had been a small-claims dispute and therefore would have been rejected as inadmissible for lack of serious consequences.

34. The Court observes that, contrary to the applicants ’ submissions, the present case does not concern a small-claims dispute. Considering that the applicants were fined for having violated the law, their case falls into the category of minor offences. In this connection, it is also noted that the Government have limited their submissions to this category of cases. Accordingly, the Court will limit its examination to this particular category.

35. The Court notes that the Government made reference to eight decisions of the Constitutional Court given in minor offences proceedings, five of which pertain to the issues raised by the applicants in the present case (see paragraphs 15-17 above). The Court further notes that four of the decisions cited by the Government – nos. Up-953/07; Up-3663/07; Up ‑ 1293/10; and Up-1544/10 – were adopted after the entry into force of the 2007 Amendment to the Constitutional Court Act, which in principle excluded the possibility of bringing constitutional appeals in minor offences proceedings. In the latter three cases the constitutional appeals were allowed, the Constitutional Court having found a number of violations of the applicants ’ procedural rights on the grounds that they had not been afforded a sufficient opportunity to produce witnesses and evidence in their favour and that they had been denied an oral hearing.

36. In the Court ’ s opinion, these decisions of the Constitutional Court show that various aspects of the right to a fair hearing in minor offences proceedings have been regarded as important constitutional questions to be decided on the merits. The Court is therefore unable to accept the argument adduced by the applicants to the effect that the strict admissibility criteria for lodging constitutional appeals entirely prevented their complaints under Articles 6 and 7 of the Convention from being examined on the merits.

37. In this respect, the Court notes that the applicants requested the Supreme Public Prosecutor to lodge a request for the protection of legality before the Supreme Court, which was refused on the ground that their case was not important enough for the development of jurisprudence. However, in the Court ’ s opinion, the refusal to lodge this request, whose main purpose is to ensure the correct application of statutory law, could not have had any bearing on the outcome of a possible constitutional appeal, a remedy designed to address issues of constitutional importance. Moreover, in their application to the Supreme Public Prosecutor, the applicants only complained about the allegedly incorrect application of the rules on penalties, but made no mention of a lack of an oral hearing. However, in view of the several decisions rendered by the Constitutional Court after the 2007 Amendment to the Constitutional Court Act became operational, which confirmed the court ’ s constant case-law with regard to the right to be heard in minor offences proceedings, the Court considers that the applicants could and should have been aware of the fact that the constitutional appeal offered them reasonable prospects of success.

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

40. Having regard to this finding, the Court is not required to decide whether an appeal against the judgment of the local court or a civil claim for damages also constituted effective remedies in the circumstances of the present case.

B. Complaint under Article 13 of the Convention

41. The applicants complained that they were denied an effective remedy, as their case did not raise an important constitutional question. They 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.”

42. The Court has already found that the constitutional appeal provided the applicants with an effective remedy in respect of their complaints under Articles 6 and 7 of the Convention. That finding is valid also in the context of the complaint under Article 13 of the Convention.

43. 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 by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President