DISSENTING OPINION OF JUDGE VEHABOVIĆ

With great regret I am unable to share the views of the majority of the Chamber.

It is evident that the offence of which the applicant was convicted did not carry a custodial sentence as the main punishment, but the question whether an offence for which the law prescribes a term of up to two weeks’ imprisonment in default of payment is to be considered “minor”, as the majority concluded, is the point of departure.

I am of the opinion that the determining factor is not the maximum amount of the fine or the actual fine imposed, but rather the full range of sanctions applicable, which included potential imprisonment. The decisive element is the potential sanction in the abstract rather than the actual sanction imposed, as in Gurepka v. Ukraine (no. 2) (no. 38789/04, §§ 12 and 33, 8 April 2010). In Putz v. Austria (no. 18892/91, Commission decision of 3 December 1993, unreported), the situation differs from the present case as regards the nature of the offence and the punishment as well as the procedure for converting the monetary sanction into a custodial sentence. In that case, the imposition of a default prison term was directly at stake as a consequence of the applicant’s conviction under the Road Traffic Act.

Irrespective of whether it is a primary or secondary punishment, a person’s potential imprisonment carries consequences which are of a serious nature and which cannot be considered “minor” within the meaning of Article 2 of Protocol No. 7 (see Kamburov v. Bulgaria , no. 31001/02, § 26, 23 April 2009).

I share the opinion of the Court expressed in Shvydka v. Ukraine (no. 17888/12, § 50, 30 October 2014), in which it held that where the right to a review under Article 2 of Protocol No. 7 exists, it should be effective in the same way as the right of access to a court enshrined in Article 6 § 1 of the Convention, given the prominent place held in a democratic society by the right to a fair trial. As also expressed in point 18 of the Explanatory Report to Protocol No. 7, the courts of appeal or cassation can be considered to fulfil the requirements of a review by a higher tribunal, while no mention is made of constitutional courts in this context. It appears in this case that the Constitutional Court limited the applicant’s ability to allege a violation of his rights, and that he could only complain of the incorrect application of the law or procedural errors if they reached the level of arbitrary application of the law. That obviously limited the scope of review by the Constitutional Court as compared with the Supreme Administrative Court. Furthermore, the Constitutional Court did not even agree to consider the applicant’s request for lack of prospects of success, and took the view that the case did not require specific constitutional consideration to decide on the legal issues.

In these circumstances I have no option but to disagree with the majority in this case. I am of the opinion that the applicant did not have the benefit of an effective review of his criminal matter by a higher tribunal for the purposes of Article 2 § 1 of Protocol No. 7.