FIFTH SECTION

DECISION

Application no. 57653/08 Mitja AUBREHT against Slovenia

The European Court of Human Rights ( Fifth Section ), sitting on 10 January 2012 as a Chamber composed of:

Dean Spielmann , President, Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Ann Power-Forde , Angelika Nußberger , André Potocki , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 23 November 2008 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mitja Aubreht , i s a Slovenian national who was born in 1984 and lives in Velenje .

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows. On 29 October 2006 two police officers stopped the applicant ’ s car. The applicant was asked to undergo a breathalyser test, which showed 0.73 mg/l of alcohol in his breath. He was informed that he was being charged with committing a road traffic offence, namely , driving under the influence of alcohol, and was not allowed to continu e his journey by car . The police also temporarily suspended his driving licence. W ithout adding any comment s, the applicant signed the police report, which contained the result of the breathalyser test. He was given a copy of the report.

Subsequently, the Velenje Police brought charges against the applicant.

On 27 December 2006 the applicant was summoned to appear before the judge of the Velenje Local Court . He was heard by the judge on 12 January 2007. The judge also examined as witnesses the two police officers who had brought charges against the applicant.

On 12 December 2007 the court rendered a judgment finding the applicant guilty of driving under the influence of alcohol, under the second paragraph of section 130 of the Road Traffic Safety Act, and sentenced him to a fine of 500.75 euros (EUR) and eighteen penalty points. Under section 22 of the Minor Offences Act the penalty points meant that his driving licence was no longer valid. Lastly, the applicant was ordered to pay EUR 100 in court fees.

Further to the applicant ’ s notification that he wished to appeal against the verdict, the court issued written grounds for the judgment. It rejected the applicant ’ s arguments made before the judge that his high alcohol level had been caused by his inhaling the fumes from lacquer he claimed to have put on some panelling before driving. The court noted that the applicant had admitted to the judge that he had signed the police report without any objections or comments. This, according to the judgment, was confirmed by one of the police officers, who also testified that the applicant had said nothing about inhaling lacquer fumes. The court found the officers ’ testimony more convincing than the applicant ’ s and noted that had the applicant disagreed with the results of the alcohol test and refused to sign the report, he would have been automatically referred by the police to undergo a medical examination. Referring to the standards set by the Slovenian Institute for Forensic Medicine, the court concluded that the applicant had been entirely incapable of driving safely as his alcohol level was above 1.10g/kg.

The applicant appealed. In his appeal he disputed the facts on which the judgment was based as well as the application of domestic law and the penalty imposed. He also complained that the judgment was based solely on the findings of the police; that the breath test was only an “indicator”; that the police should have proved their allegations by submitting an expert report; that he had not had enough time to prepare a defence and that the eight-day time-limit for appeal was too short.

On 14 March 2008 the Celje Higher Court rejected the applicant ’ s appeal and ordered him to pay EUR 250 in court fees. It found, inter alia , that it had been the applicant ’ s choice not to contest the results of the alcohol test on the spot. As he had signed the report the police had had no basis to order his medical examination. So he could not successfully have appealed on those grounds. The court also noted that the applicant had had more than eight days between the summons and the date of his oral hearing to prepare his defence. This, in the court ’ s view, was sufficient. Likewise, the court rejected his complaint about the eight-day time-limit for appeal, noting that it was set out in the relevant legislation.

The applicant then lodged a constitutional appeal alleging a violation of fair trial guarantees, which was dismissed by the Constitutional Court on 26 May 2008. The court 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.

B. Relevant domestic law

The Minor Offences Act ( hereinafter referred to as “ the M OA”, Of ficial Gazette no. 7/2003) entered into force on 7 February 2003 and began to be implemented in January 2005. The M OA provides for sanctions in respect of minor offences, namely a fine, a warning, penalty points ( which can lead to withdrawal of a driving licence ) , a ban on driving, expulsion of a foreigner from Slovenia and sei zure of items . C ases where an additional ban on furthe r driving is envisaged and/ or cases where an additional sentence of penalty points which are sufficient to lead to the withdrawal of a driving licence is envisaged are not dealt with by the administrative authority subject to judicial review (so-called “summary proceedings”) but are decided directly by the local courts in “ regular judicial proceedings ” ( redni sodni postopek ). In regular judicial proceedings the provisions of the law governing criminal procedure apply by analogy. T he defendant has a right to be heard orally by the judge, to adduce evidence, to make procedural requests and to appeal against the judgment. These proceedings are in principle initiated by the charges brought by the administrative authority, such as the police. The judge can also decide to hold a public hearing to which the defendant, his or her representative, witnesses and expert witnesses are summoned.

The relevant provisions of the Road Traffic Safety Act ( Zakon o varnosti cestnega prometa , Official Gazette no. 3/2004, implemented from 1 January 2005, amended on 27 October 2006) read as follows:

S ection 130

“...

(2) ... drivers may have a maximum of 0.50 grams of alcohol per kilogram in their blood or 0.24 milligrams of alcohol in one litre of breath....

...

(4) A driver.... who violates paragraph 2 of this section, shall be punished with a fine:

...

d) of a minimum of 120.000 Slovenian tolars if he has more than 1.10 grams of alcohol per kilogram of blood or more than 0.52 milligrams of alcohol in one litre of breath. ...

(5) ...a driver concerned by paragraph 4 of this section who has more than 1.50 grams of alcohol per kilogram of blood or more than 0.71 milligrams of alcohol in one litre of breath shall, in addition, be given 18 penalty points.”

Imposition of penalty points leading to withdrawal of driving licence

Section 235

“...

(3) A court .... shall declare invalid the driving licence of a driver on whom the administrative body has imposed eighteen penalty points or more.

(4) In the case of beginner drivers the driving licence shall be declared invalid if, in the space of three years, the driver is given seven penalty points or more.”

For the relevant provisions of the Constitutional Court Act see Suhadolc v. Slovenia , ( ( dec .) no. 57655/08, 17 May 2011).

COMPLAINTS

The applicant complain ed under Article 6 of the Convention that he did not have the possibility to call witnesses or adduce evidence in his favour. The proceedings therefore did not satisfy the requirement of equality of arms or the principle of the presumption of innocence , and the judgment was based solely on the statements made by police.

The applicant further complained under Article 13 that the deadline of eight days for lodging of an appeal was unreasonably short. Moreover, he complain ed under Articles 6 and 13 that the Constitutional Court denied him access to court and retroactively interfered with his rights because it declined to deal with his constitutional appeal and based its decision on new admissibility criteria which came into force after the event at the origin of the constitutional appeal.

Lastly, r elying on Articles 1 and 2 of Protocol No. 1 to the Convention, the applicant complained that the withdrawal of his driving licence deprived him of his intellectual property and educational status. He submit ted that this measure, unlike the tempora ry suspension of a driving licence , was not of a preventive nature.

T HE LAW

The applicant raised several complaints under Article 6, which reads, in so far as relevant:

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

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The applicant also complained of a violation of Articles 1 and 2 of P rotocol No. 1 to the Convention. Article 1 of Protocol No. 1 to the Convention reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 2 of Protocol No. 1 to the Convention provides:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

1. The Court finds that the applicant ’ s complaint that he had no possibility to call witnesses or propose evidence in his favour is not substantiated. The applicant was heard orally by the judge and could have called witnesses or asked for cross-examination as stipulated in the domestic legislation. The applicant does not claim that he made any such request.

As regards the applicant ’ s allegation that the judgment relied solely on the statements made by the police, the Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing , it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94 , ECHR 2006 ‑ IX ). The Court observes that the Velenje Local Court found the police version of events, which was supported by the results of the breathalyser test, to be the reliable one. The court ’ s judgment is satisfactorily reasoned and discloses no sign of arbitrariness. The applicant was also able to challenge it in his appeal, which was duly examined by the Celje Higher Court .

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.

2. The Court notes that applicant ’ s complaints about the eight-day time-limit for lodging an appeal and about the rejection of his constitutional appeal in substance concern Article 6 § 1 of the Convention.

The Court takes note of the fact that the applicant does not complain about the manner in which the rule concerning the eight-day time-limit for lodging an appeal was applied in his case, but about the rule itself, by submitting that eight days is in general not long enough to prepare an appeal. The Court recalls that the rules on the procedure and time-limits for appeals are designed to ensure the proper administration of justice and, in particular, legal certainty (see Zvolský and Zvolská v. the Czech Republic , no. 46129/99 , § 46 , ECHR 2002 ‑ IX ). H aving regard to the nature of the proceedings and the lack of complexity of the matter, the Court finds no indication that the time-limit in question did not allow the applicant effective access to the court in the determin ation of the criminal charge against him .

As regards the applicant ’ s complaint relating to the new admissibility criteria in respect of the constitutional appeal, the Court notes that it has already rejected an identical complaint as manifestly ill-founded in the case of Suhadolc v . Slovenia (cited above) and finds no reason to reach a different conclusion in the present case.

Having regard to the foregoing, the complaint concerning the time-limit for appeal to the higher court and the complaint concerning the dismissal of the applicant ’ s constitutional appeal should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Lastly, the Court notes that the applicant, r elying on Articles 1 and 2 of Protocol No. 1 to the Con vention, complains that the withdrawal of his driving licence deprived him of his intellectual property and educational status. Having regard to the applicant ’ s arguments and the circumstances of the case, the Court finds that the withdrawal of the applicant ’ s driving licence could not in itself be considered to raise an issue under the aforementioned provisions. It would note in this connection that this measure was aimed at securing the applicant ’ s safety as well as that of other road-users. The Court has previously compared it with the procedure of issuing a driving licence, which is aimed at ensuring that a driver possesses the required skills and knowledge of the relevant traffic rules for driving on a public road, and realises the importance of responsible and correct conduct on the public road (see H.P. Blokker v. the Netherlands ( dec .), no. 45282/99, 7 November 2000). Where the conduct of a driver holding a licence gives rise to doubts as to these elements, it cannot be regarded as unreasonable that such a person is disqualified from driving and is required to take again the training course to obtain a new licence.

The Court therefore finds this part of the application also manifestly ill-founded. It must accordingly be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President