FIFTH SECTION

DECISION

Application no . 16128/08 Kristina PETRUÅ EVSKI against Slovenia

The European Court of Human Rights ( Fifth Section ), sitting on 1 April 2014 as a Committee composed of:

Ann Power-Forde, President, Boštjan M. Zupančič , Helena Jäderblom , judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 28 March 2008 ,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Kristina Petruš evski , is a Slovenian national, who was born in 1966 and lives in Grosuplje . She was represented before the Court by Mr L. Poljanec from Slovenska Bistrica.

The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko , State Attorney .

A. The circumstances of the case

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

On 21 August 2006 the applicant, driving a car past slow-moving traffic, was stopped by the police. She was issued a penalty notice for driving in an emergency lane in breach of Section 110 (17) of the Road Traffic Safety Act. The penalty notice contained information on the location of the offence and the car, the aforementioned legal qualification of the offence and an indication of a fine of 50,000 Slovenian Tolars (approximately 200 euros (EUR)).

On 23 august 2006 the applicant lodged a request for judicial review in which she alleged that her car had broken down due to overheating, so she had had to resort to the emergency lane. When she had again started the engine and returned to the driving lane, she had been pulled over by a police officer after approximately 50 metres. The officer had not listened to her explanation, but had on ly issued her a penalty notice.

On 28 June 2007 the Grosuplje Local Court, after having examined the impugned penalty notice and the statement of facts submitted by the police, dismissed the applicant ’ s request as unfounded. The court found that the facts, which had been personally observed by a police officer, had been correctly established. Moreover, the police officer had not committed any procedural violation and had correctly applied the sanction. The applicant was ordered to pay EUR 50 in court fees.

On 18 September 2007 the applicant lodged a constitutional complaint in which she complained of a violation of her fair trial guarantees. She claimed that her constitutionally guaranteed right to appeal had been violated, as she could not appeal against the judgment of the local court, and contested the constitutionality of the regulation allowing the police to impose penalties for minor offences.

On 24 October 2007 the Constitutional Court rejected the applicant ’ s 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).

In addition, S ection 110 of the Road Traffic S afety Act reads, in so far as relevant, as follows:

“(10) It is forbidden to drive, park or stop on the emergency lane, except in the case of emergency.

...

(17) Any person who acts contrary to the second, ninth and tenth paragraph of this section shall be punished with the fine of 50,000 Slovenian T olars .”

COMPLAINTS

The applicant complained under Article 6 of the Convention that her conviction was based on the facts subjectively observed by the police and that she had not had a public hearing or the opportunity to defend herself in person and to adduce evidence in her favour before a court .

Relying on Articles 6 and 13 of the Convention, the applicant complained that the Constitutional Court had declined to deal with h er constitutional complaint and had merely referred to section 55a of the Constitutional Court Act, which had entered into force after the events concerned in h er complaint had taken place. Sh e argued that this decision of the Constitutional Court had denied h er right of access to court and had retroactively interfered with h er rights.

In addition, s he complained that there had been a breach of the presumption of innocence and that, contrary to Articles 6 and 13 of the Convention, no appeal against the local cour t ’ s judgment had been possible.

Finally, the applicant complained that the police had interfered with h er right to liberty, as s he had been stopped without a warning.

THE LAW

The applicant raise d several complaints under Articles 6 and 13 of the Convention. Article 6 , 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.

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

Article 13 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.”

The Government argued that the complaints were inadmissible on the ground of non-exhaustion of dome stic remedies. They submitted that in her constitutional complaint, the applicant had failed to complain about the lack of an oral and public hearing. Instead, t he focus of her allegations was on the question of whether the police should be authorised to impose sanctions in minor offences proceedings. Moreover, she had appealed that her right to appeal had been violated.

The applicant did not comment on these submissions.

The Court notes, at the outset, that it has already been established 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. T he Court observes that the applicant complained on two grounds: one being that the regulation authori si ng the police to impose sanctions was unconstitutional, and the other that her right to appeal had been violated . However, she did not complain about the lack of an oral and public 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 r edress 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 do wn in domestic law (see, among many authorities, Cardot v. France , 19 March 1991, § 34, Ser ies A no. 200). As the applicant failed to raise the complaint regarding the lack of an oral and public hearing in her 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 of the Convention .

As regards the applicant ’ s argument concerning the retroactive effect of the Amendment to the Constitutional Court Act , the Court reiterates that the Amendment entered into force on 15 July 2007 (see Suhadolc , cited above). The Amendment was thus operational before the applicant lodged her constitutional complaint . Therefore, the Court finds that this complaint is unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention .

As regards the applicant ’ s remaining complaints, the Court finds, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that also 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.

For these reasons, the Court unanimously

Declares the application inadmissible .

Stephen Phillips Ann Power-Forde              Deputy Registrar President