FIFTH SECTION

Application no. 6781/09 Boštjan BRADEŠKO and RUTAR MARKETING d.o.o. against Slovenia lodged on 29 January 2009

STATEMENT OF FACTS

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

A. The circumstances of the case

The facts of the case, as submitted by the applicant and the applicant company, may be summarised as follows.

The applicant is the director of Rutar Center , which is a shopping centre owned by the applicant company.

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 .

On 28 April 2006 the Inspectorate issued a decision finding that the applicant company had failed to pay interest to customers who had put down an advance deposit as a guarantee for their orders from Rutar Center . The decision illustrated the applicant company ’ s practice by listing three examples which concerned in total approximately 30 euros (EUR). The applicant company 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.

On 15 May 2006 the applicant and the applicant company lodged a request for judicial review in which they alleged that the Inspectorate had wrongly established the facts; in particular, they argued that the customers had waived their right to the payment of interest. In addition, they alleged that the relevant law had been wrongly applied and requested that regular judicial proceedings be opened.

On 9 July 2008 the Ljubljana Local Court , in summary proceedings, issued a judgment rejecting the request for judicial review as unfounded. On the basis of 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 the report of 21 September 2005, and a report the Inspectorate had drawn up further to the lodging of the request for judicial review, the court found that the facts had been properly established by the Inspectorate and that the request was unfounded. In particular, the court found that the customers had had no opportunity to buy the goods by paying for them when delivered. The applicant company was ordered to pay EUR 450 and the applicant EUR 200 in court fees. The judgment was served on them on 4 August 2008.

On 25 September 2008 the applicant and the applicant company requested the Supreme Public Prosecutor to lodge a request for the protection of legality. They argued, in particular, that the sanction was 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 this into account and impose a lower fine accordingly.

On 27 October 2008 the Supreme Public Prosecutor replied to the applicant and the applicant company, 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 right 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 for the development of jurisprudence, nor had they shown that the issue had had serious consequences for them.

B. Relevant domestic law

Section 41 of the Consumer Protection Act (Official Gazette no. 98/2004 – official consolidated version) reads, in its relevant part, as follows:

“(1) If the company expressly or tacitly renders the purchase of goods or services subject to a full or partial pre-payment and delivers the goods or service after the receipt of the pre-payment, 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:

...

16. it does not specify in the final bill, and pay the customer, the interest due on the pre-paid sum at the interest rate ... (section 41);

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

Section 22 of the Amendment to the Customer Protection Act, which entered into force on 15 January 2008, changed section 77 so that its relevant parts now read as follows:

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

...

"(2) The director of the company ... shall be punished for the offence mentioned in the preceding paragraph with a fine of between EUR 1,200 and EUR 4,000.

For details of the relevant provisions of the Minor Offences Act (Official Gazette no. 7/2003), in particular those concerning “summary proceedings”, see Suhadolc v. Slovenia , ((dec.) no. 57655/08, 17 May 2011). In addition, the Minor Offences Act provides in its section 2 as follows:

“(1) Nobody shall be punished for an offence if the act has not been defined as an offence by a statute, government regulation or local decree before it is committed, or if a sanction has not been prescribed for such an offence.

(2) If, after the commission of an offence, the provisions of this act or the legislation which determines the offence change once or more than once, the act or legislation which is more favourable to the perpetrator should be applied.”

COMPLAINTS

The applicant and the applicant company complain under Article 6 of the Convention that they were unable to defend themselves effectively in court, that there was no public and adversarial court hearing in their case and that the penalty imposed on them was disproportionate to the alleged offence, which concerned approximately EUR 30 only.

Under Article 7 of the Convention, the applicant and the applicant company complain that the local court failed to apply the amended law which had reduced the minimum fine which could be imposed for the offence in question.

Lastly, under Article 13, they complain that they were denied an effective remedy to obtain redress for the unlawfully imposed fine on the ground that their case did not raise an important constitutional question.

QUESTIONS

1. Have the applicant and the applicant company exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, given the Constitutional Court ’ s existing practice as regards complaints such as the those in the present case, should the constitutional appeal be considered effective within the meaning of Article 35 § 1?

2. Having regard to the lack of a court hearing, did the applicant and the applicant company have a fair trial in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, were there any exceptional circumstances dispensing the court with its obligation to hold an oral hearing in the present case (see Jussila v. Finland ([GC], no. 73053/01, §§ 41-42 and 47-48, ECHR 2006 ‑ XIII) or Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011).