Published on 19 February 2024

FIRST SECTION

Applications nos. 15525/23 and 15532/23 Franka MAKOVAC against Slovenia and Michael LATIN against Slovenia lodged on 6 April 2023 communicated on 1 February 2024

SUBJECT MATTER OF THE CASE

The two applications are part of a group of more than 700 cases lodged against Slovenia by a number of Croatian nationals. They relate to a maritime border dispute in the Piran Bay which has been ongoing between Croatia and Slovenia since 1991. The applicants are commercial fishermen who were at the material time allegedly fishing in the disputed waters in the Piran Bay. On 25 March 2018 the Koper Naval Police fined the first applicant 500 euros (EUR) for the unlawful border-crossing. As evidence that she had committed the minor offence the payment order ( plačilni nalog ) indicated that the offence had been observed by the police officer of the Koper Naval Police. It also listed video recordings, photographs and radiolocation records as evidence, without any further explanation. On 19 February 2020 the Koper Unit of the Inspectorate for farming, forestry, hunting and fishing fined the second applicant EUR 840 (i) for having prevented the fishing inspector’s access to his boat and obstructed the authorities in carrying out their official task, and (ii) for not having an appropriate licence for fishing in Slovenian waters. As evidence that he had committed the minor offences the payment order indicated “a direct observation of the fishing inspector and the recorded photographic material”.

Both applicants challenged the payment orders before the Koper Local Court, disputing the facts and the application of the law to their case and alleging procedural flaws. In particular, they argued that the identity of the alleged perpetrators had not been properly established and that even if they had been on the respective boats, they had been convinced that they had been fishing in Croatian waters. In this connection they submitted that their fishing boats had been surrounded and guarded by the Croatian police vessels, which had been positioned between them and the Slovenian official vessels. Thus, even if they had entered Slovenian waters, they had done so out of a mistake of fact and without any fault on their part. The second applicant also argued that it was noted in the payment order that it had been the Croatian police that had prevented the fishing inspector’s access to his boat. The applicants proposed that the material evidence (including the photographs and recordings obtained by the police) be examined and that they and several witnesses (other fishermen, Croatian naval police officers and the Slovenian officials who had allegedly identified them) be heard by the court.

The Koper Local Court dismissed the applicants’ requests for judicial protection, finding that the facts had been properly established by the Slovenian authorities; that no evidence had been submitted calling the authorities’ findings into question; that the applicants could have reviewed the material evidence which had been in the administrative file; that the applicants should have been aware of the decision given by the arbitral tribunal establishing the maritime border between the two countries in the Piran Bay, which had been published on 29 June 2017; that the equipment on the fishing boat displayed the geographical coordinates and that the second applicant had been repeatedly involved in this kind of incidents. In the local court’s view both applicants had been or should have been aware of the fact that they had entered Slovenian waters. The local court found it unnecessary to hear the applicants and any of the proposed witnesses, because it considered that this proposed evidence was not suitable to have any impact on the factual findings in the applicants’ cases.

The applicants appealed. They complained that they had not been given an opportunity to be heard, to examine witnesses on their behalf and to effectively challenge the officials’ personal observation on which their conviction directly relied. They argued that the local court accepted the officials’ version, without having examined evidence as to, inter alia , the identity of the perpetrators, their intent, and the allegation that the second applicant had obstructed access to his boat. There were no special circumstances which would have justified dispensing with the hearing. The local court’s decision not to hear the applicants and examine the proposed evidence was unreasoned.

The Koper Higher Court dismissed the applicants’ appeals on 15 April and 13 May 2021, respectively. It found that they could have viewed the evidence in the administrative file and challenged them before the local court, that they had prevented their identification at sea by escaping, and that they could have not justifiably believed that they had remained in Croatian waters. As regards the second applicant, the higher court also found that it was established that he had not stopped his boat and had failed to respond to the demands of the Slovenian police.

The applicants lodged constitutional complaints, in which they argued that the questions raised in their complaints “exceeded the importance of the concrete case”, and therefore warranted the Constitutional Court’s adjudication, because of the nature of the rights at stake and because of the fact that similar fines had been imposed on other fishermen who likewise had not had the benefit of an oral hearing. They also pointed out that the Constitutional Court had previously accepted to examine the merits of this type of complaints. As to the merits of their complaints, they reiterated the arguments put forward before the lower courts, in particular the allegations that despite the criminal nature of the proceedings they had been denied an opportunity to be heard before a court and have evidence against them and on their behalf examined at a hearing in breach of, inter alia , Article 6 of the Convention. They argued that the charges and ensuing conviction had been based on the personal observations by the officials and on certain evidence which had remained unelaborated. They also alleged that they had not had an effective opportunity to challenge the credibility of the officials’ version of the events.

On 5 December 2022 the Constitutional Court rejected both constitutional complaints. It observed that more than 630 similar cases were pending before it and noted that the applicants’ cases would serve as an opportunity to explain why this type of complains were inadmissible. The Constitutional Court referred to section 55.a of the Constitutional Court Act, which provides that the Constitutional Court should decide matters regarding minor offences only if they concern “an important constitutional question which exceeds the importance of the concrete case”. It went on to note that it had previously found violations of constitutional rights because of the lack of an oral hearing or opportunity to examine evidence in minor offence proceedings. It also noted that it had in previous similar cases pointed out that it had not been its role to “repeatedly point out the obligation to respect its binding decisions and the Court’s judgments”. The Constitutional Court rejected the applicants’ constitutional complaints because, even assuming that they were well ‑ founded, they no longer concerned a question of jurisprudential importance. The decisions were served on the applicants’ lawyer on 13 December 2022.

The applicants complain under Article 6 §§ 1 and 3 of the Convention that they had not been informed of some of the evidence on which their charges and ensuing convictions were based and were therefore unable to effectively mount their defence; that they did not have an oral hearing, though dispensing with such hearing was not justified; and that they were unable to examine witnesses against them and witnesses on their behalf.

QUESTIONS TO THE PARTIES

1. Could the constitutional complaint be considered an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of the complaint under Article 6 of the Convention concerning an alleged lack of opportunity to examine evidence against a defendant and the domestic courts’ refusal to hold an oral hearing in minor offence proceedings, such as those conducted against the applicants?

If not, have the applicants complied with the time-limit laid down in Article 35 § 1 of the Convention?

2. Was Article 6 of the Convention under its criminal head applicable to the proceedings in the applicants’ case?

If so, did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular, the parties are requested to address the following questions:

|(a) Were the applicants given the opportunity to have knowledge of and comment on the evidence adduced by the authorities in support of the charges against them?

(b) Was the dispensing with an oral hearing in the present case justified (see Sancaklı v. Turkey , no. 1385/07, § 45, 15 May 2018; Flisar v. Slovenia , no. 3127/09, § 38, 29 September 2011; and Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia , no. 47072/15, § 54, 23 October 2018) and did the domestic courts provide sufficient reason for their decision not to hold an oral hearing ( see Mtchedlishvili v. Georgia , no. 894/12, § 39, 25 February 2021)?

(c) Was the decision not to allow the applicants to examine witnesses against them and to obtain the attendance of witnesses on their behalf justified in the light of Article 6 § 3 (d) of the Convention?

3. Is the applicants’ situation indicative of a systemic problem regarding the dispensing with an oral hearing in minor offence proceedings in general, or specifically in minor offence proceedings against the Croatian fishermen, which could call for an indication of general measures under Article 46 of the Convention?