FIFTH SECTION
CASE OF
MESESNEL v. SLOVENIA
(Application no.
22163/08)
JUDGMENT
STRASBOURG
28 February 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Mesesnel v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 5 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22163/08) against the Republic of Slovenia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Slovenian national, Ms Špela Mesesnel (“the
applicant”), on 29 April 2008.
The applicant was represented by Mr D.
Đuragić, a lawyer practising in Ljubljana. The Slovenian Government
(“the Government”) were represented by their Agent, Mrs T.
Mihelič Žitko Attorney.
The applicant alleged that her right to
participate effectively in proceedings against her had been violated.
The application was communicated to the Government
on 12 October 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lives in Ljubljana.
On 28 September 2004 at 4.30 a.m., the applicant
was pulled over in her car by Police Officer S., who ordered her to undergo a
breathalyser test. According to the applicant, despite five attempts, the test
was unsuccessful as no result appeared on the screen.
On 14 October 2004 the police charged the
applicant with an offence under paragraph 7 of section 120 of the Road Traffic
Safety Act, which she had allegedly committed by blowing into the breathalyser
insufficiently and thereby disregarding the instructions on the use of the
breathalyser. The ensuing proceedings were conducted under the Minor Offences
Act 1983, according to which the courts have jurisdiction to decide on charges
concerning minor offences.
On 2 February 2005 the applicant was summoned to
appear before the Ljubljana Local Court but the summons was returned to the
court undelivered. On 12 April 2005 the court sent a new summons, which was
served on the applicant on 22 April 2005. However, further to a medical certificate
stating that the applicant was on sick leave during the relevant period, the
hearing was cancelled. A new summons was served on the applicant on 5 September
2005. Four days later the applicant informed the court that she would be
represented by a lawyer, M., in the proceedings. M. requested a postponement of
the hearing scheduled for 12 September 2005 in order to consult the file and
prepare the defence. His request was granted.
The next hearing of the
applicant was scheduled for 3 October 2005 at 8.35 a.m. The court also scheduled
an examination of Police Officer S. for the same day at 8 a.m. The summons
concerning the applicant’s hearing was served on her representative, but not on
the applicant, who failed to collect the letter. Neither the hearing of the
applicant nor the examination of S. took place on 3 October 2005.
On 13 September 2005 the court ordered that the
applicant be brought before
it by force. This order was subsequently cancelled.
On 20 January 2006 the Ljubljana Local Court
summoned the applicant to appear before it. The summons was not served on her but
left at the post office. As she failed to collect it, the summons was served on
her representative on 30 January 2006. The applicant failed to appear before
the judge on the scheduled date.
On 9 February 2006
the Ljubljana Local Court judge examined Police Officer S., who testified that
on the day in question she had seen the applicant swerving from side to side in
her car. After pulling her over, she had smelled alcohol on her breath and
noticed that she lacked coordination. The police officer also stated that she
believed that the applicant had been so drunk that she had been unable to blow
properly into the breathalyser. Moreover, she maintained that she had ordered a
medical examination, which the applicant had refused to undergo.
On 17 May 2006 the court ordered that a summons
for the applicant to appear before the court be served by a special company,
which served the summons on the applicant on 19 May 2006.
On 26 May 2006 the applicant received copies of
the records concerning the examination of S. and of the report on the use of
the breathalyser.
On 1 June 2006 the
applicant was heard by the judge. She stated that she had been returning from
holiday on the day in question. After being stopped she had followed the police
officer’s instructions concerning the use of the breathalyser. However, every
time she had blown into the device, it turned itself off and the police officer
had needed to restart it. The applicant disputed the allegation that she had
refused to comply with the police officer’s order to blow into the breathalyser,
stating that she had in fact blown into it five times unsuccessfully. She
further stated that she had declined to sign the police report as the police
officer had refused to add her comments concerning the problems with the
breathalyser and had instead noted that she had medical problems with her
lungs, which was not true. The applicant requested a cross-examination of the
police officer.
On the same day the applicant also filed a
written statement disputing the police officer’s allegation that she appeared
to be drunk and contesting the allegation that the officer had ordered her to
undergo a medical examination. The applicant also informed the court that she
had changed her representative to lawyer D.
On 4 July 2006
the judge again heard the police officer, who was asked to give her account of
the incident of 28 September 2004. She said that she always checked whether the
device was working before taking it with her and had done so on the day in
question. The officer further stated, inter alia, the following: the
applicant had told her that she had been returning from a party; the applicant
had not asked for comments to be added to the report; the applicant herself had
mentioned that she had medical problems, which had been noted in the report;
and the applicant had been so drunk that she had been unable to blow properly
into the breathalyser.
On 10 July 2006 the court rendered a decision finding the applicant
guilty of an offence under paragraph 7 of section 120 of the Road Traffic Safety
Act for blowing into the breathalyser insufficiently and thereby disregarding
the instructions for the use of the breathalyser. The court summarised the
statements given by the applicant and the police officer and noted that it had
obtained an instruction manual for the breathalyser. Finding that the police
officer was convincing in her account, which conflicted with the applicant’s,
the court concluded that the applicant had committed the aforementioned offence
with direct intent. The court rejected the applicant’s request for
cross-examination of the police officer on the grounds that (i) the police
officer had twice been examined by the court and had given a coherent account
of the incident; and (ii) it was likely that the applicant would not attend any
cross-examination since she had had to be summoned to her hearing several
times. The applicant was fined 100,000 Slovenian tolars (SIT) and her
driving licence was permanently confiscated. She was also ordered to pay court
expenses of SIT 40,000.
On 20 July 2006 the applicant appealed to the Ljubljana Higher Court. She complained, inter alia, that the lower court had refused to
allow a cross-examination of the witness and that the police officer had been
examined in the absence of her lawyer and herself.
On 21 September 2006 the Ljubljana Higher Court dismissed the applicant’s appeal but changed the verdict, which now
read that the applicant was guilty of refusing to undergo a medical
examination. The sentence remained the same. The applicant was also ordered to
pay SIT 40,000 in court expenses. The Higher Court found the following:
“It can be seen from the collected evidence that the accused
was first ordered to undergo a breathalyser test, which she had performed improperly,
referring to an alleged medical problem with her lungs, and that she refused to
sign the report, for which reason a medical examination was ordered, which she
also refused to undergo. These circumstances are borne out by the bill of
indictment, the police report and the testimony of Officer S. who was twice
examined in the proceedings and provided a detailed account of the procedure in
which the applicant had been involved ... It was not important in the instant
case whether or not the accused referred to her medical problems, since the
medical examination had to be ordered on the basis of the mere fact that the
accused refused to sign the report. The officer therefore knew her duty and
ordered the medical examination, as can be seen from her testimony and the
report ...”
The Higher Court further noted that the police officer had been examined by the judge before the
applicant had made her request for cross-examination and that it had been
obvious from S.’s first examination that she had ordered the medical
examination. In the Higher Court’s view, the second examination of the officer
was of no significance and the applicant’s defence rights had therefore not
been violated.
On 8 November 2006 the applicant lodged a
constitutional appeal in which she complained, inter alia, that her
request to cross-examine the witness, the police officer, had been ignored and
that a hearing at which the witness had been heard had been held in her absence
and that of her lawyer, who had never been informed of it. The credibility of a
witness could be tested only through cross-examination. The applicant also
requested that the impugned decisions be suspended pending the ruling of the Constitutional Court. The request was rejected on 20 November 2006.
On 12 November 2006 the applicant also requested
that the Supreme Public Prosecutor’s Office lodge a request for protection of
legality. The request was refused on 3 January 2007.
On 20 December 2007 the Constitutional Court
dismissed the applicant’s constitutional appeal. The decision was served on the
applicant on 11 January 2008.
II. RELEVANT DOMESTIC LAW
Section 120 of the Road Traffic Safety Act (Zakon
o varnosti cestnega prometa, Official Gazette no. 30/1998 - in force until
1 January 2005) read, in so far as relevant, as follows:
“(3) A driver who has been ordered by police to
undergo a test by use of special devices or medical examination shall comply
with the order. If he or she refuses to undergo the test or fails to comply
with instructions concerning the use of the method in question, the officer
shall note this in a report, prohibit further driving and withdraw the
[offender’s] driving licence. The driver can refuse to undergo the test [by use
of special devices] on medical grounds only, in which case the officer shall
order a medical examination.
...
(7) A driver who acts in breach of the third or
fifth paragraph of this section shall be punished with a fine of no less than SIT
90,000 or imprisonment. In addition to the fine or imprisonment, the [offender’s]
driving licence ... shall also be withdrawn regardless of the number of penalty
points collected so far.”
Under the Minor Offences Act
1983 (hereinafter referred to as “the 1983 MOA”) the proceedings were conducted
by a Minor Offence Judge on the basis of a bill of indictment lodged by the
police. The Act stipulated that the accused must be heard before a decision was
given. The hearing of the accused should in principle be oral, but the accused
should first be informed that he was not obliged to defend himself or answer
any questions (sections 59 and 113). Section 116 provided that the accused
could be confronted with a witness if their statements did not match. Section
122 provided that witnesses could be examined by the judge if this was considered
necessary for the establishment of the facts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3
(d) OF THE CONVENTION
The applicant complained of a violation of her
right to a fair and adversarial trial on account of her inability to
participate in the examination of the only witness in her case. She invoked Article
6 § 1 and § 3 (c) of the Convention. However, the Court finds it
appropriate to examine the case under Article 6 § 1 and § 3 (d) (see Guerra
and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and
Decisions 1998-I). The relevant part of the aforementioned Article reads
as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
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;
....”
A. Admissibility
The Court notes that it is not in dispute between
the parties that the criminal limb of Article 6 was applicable to the
proceedings complained of by the applicant, and sees no reason to disagree (see
Öztürk v. Germany, 21 February 1984, §§ 46-56, Series A no. 73; Falk
v. the Netherlands (dec.), no. 66273/01, ECHR 2004-XI Ziliberberg v. Moldova, no. 61821/00, §§ 30-36, 1 February 2005). It further notes that the
application is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention, and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant alleged that there had been an obvious
dispute over facts between her and Police Officer S. However, neither she nor
her lawyer had been informed of the fact that S., who was a decisive witness, would
be examined in the proceedings. They had had no opportunity to comment on S.’s second
oral submission, nor to cross-examine her. As regards the latter complaint, the
judge had arbitrarily rejected the applicant’s proposal for cross-examination
by reference to the likelihood that she would not appear, ignoring the fact that
she was the one who had made the request and that she was represented by a
lawyer.
The applicant maintained that the evidence
should have been produced and examined at an adversarial hearing, where she could
have questioned the witness. The applicant also emphasized that the penalty
imposed, namely the confiscation of her driving licence, had seriously affected
her life.
The Government argued that the applicant had not
in fact been interested in actively participating in the proceedings but sought
to delay them until they became statute barred, two years after the commission
of the offence. She had avoided being heard by the judge, despite this being
her right. The Government further argued that, in her oral and written
submissions of 1 June 2006, the applicant had had an opportunity to reply to
the charges as well as to S.’s statements of 9 February 2006. They submitted
that the 1983 MOA had not provided for an absolute right of the accused to be
confronted with the witness, but this possibility had been at the discretion of
the judge. In the instant case the judge found that there was no need for
cross-examination, since this would have provided no new information.
The Government maintained that the Higher Court had relied on the fact that the applicant had refused to sign the report, which
she had confirmed in her statements of 1 June 2006. Furthermore, in view of the
Higher Court’s findings the first oral testimony of S. was the only relevant
evidence. The second testimony of S. had concerned predominantly objective
facts, which were irrelevant to the final ruling in the case.
Lastly, the Government argued that the
proceedings had not concerned a real criminal offence but a traffic offence,
which should affect the nature of the guarantees.
2. The Court’s assessment
The Court reiterates that the guarantees in
paragraphs 3 (c) and (d) of Article 6 are specific aspects of the right to a
fair hearing set forth in paragraph 1 of this provision, which must be taken
into account in any assessment
of the fairness of proceedings. In addition, the Court’s primary concern under
Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings
(see Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein).
In making this assessment the Court will look at the proceedings as a whole,
having regard to the rights of the defence but also to the interests of the
public and, where necessary, to the rights of witnesses (see, among many authorities, Al-Khawaja and Tahery v. the United Kingdom ([GC],
nos. 26766/05 and 22228/06, § 118, ECHR 2011).
The Court further reiterates that Article 6 § 3 (d)
enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a
view to adversarial argument. Exceptions to this principle are possible but
must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and
question a witness against him, either when that witness makes his statement or
at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39,
ECHR 2001-II, and Solakov v. “the former Yugoslav Republic of
Macedonia”, no. 47023/99, § 57, ECHR 2001-X). As regards the
exceptions, the Court, in Al-Khawaja and Tahery (cited above), referred
to two requirements. First, there must be a good reason why the witnesses could
not be examined by the accused and second, when a conviction is based solely or
to a decisive degree on depositions that have been made by a person whom the
accused has had no opportunity to examine or to have examined, sufficient
counterbalancing factors, including the existence of strong procedural
safeguards, must be provided (see Al-Khawaja and Tahery, cited above, §§
119-47).
As to the present case, the Court notes that the
statements of Police Officer S. were the only and therefore decisive evidence of
the acts alleged against the applicant. In particular, the conviction of the applicant
was first based on S.’s assertion that the applicant had refused to blow into
the breathalyser and later, after the appeal, on her assertion that she had
ordered the applicant to undergo a medical examination but the applicant had
refused to comply with that order (see paragraphs 18 and 20 above).
The Court further notes that S. was twice
examined as a witness by the first-instance judge. It has not been disputed
that neither the applicant nor her counsel was informed of and invited to
attend the witness examination.
It would seem that
the domestic courts’ opinion that the applicant’s presence at S.’s first
examination had not been necessary was based on the fact that she had made no
prior request to that effect (see paragraph 21 above). However, there appears
to be no indication in the 1983 MOA that such a request should have been made by
the accused, nor that he or she needed to be informed about the court’s
intention to call a certain witness. Moreover, as can be seen in the applicant’s
case with respect to the hearing scheduled for 3 October 2005 (see
paragraph 9 above), the examination of a witness could be scheduled prior to
the hearing of the accused. The Court therefore finds that the applicant could
not be blamed for failing to attend the first examination of the witness.
The Court notes moreover that, despite making an
explicit request at her oral hearing, the applicant was not informed of the
second examination of the witness. The domestic courts justified the holding of
the second examination in the absence of the applicant by referring to S.’s coherent
account of the incident, difficulties in summoning the applicant to her oral
hearing and lack of significance of the evidence given by S. during the second
examination (see paragraphs 18 and 21 above). While it is true that service of
the summons concerning the applicant’s hearing was repeatedly unsuccessful and
that the applicant, even after being properly summoned, at first failed to
appear before the court, this does not seem to be particularly relevant to the
question of her presence at the examination of S. In this connection, the Court
notes that the legal provisions of the 1983 MOA did not provide for an
adversarial hearing but only for an oral hearing or questioning of the accused.
As the Court has noted above, examination of witnesses appeared to be a
separate procedural act, to which the accused was not automatically invited
(see paragraphs 26 and 38 above). As regards the remaining grounds relied on by
the domestic courts, the Court finds them equally unpersuasive. It notes that the
local court must have been aware that the applicant, who challenged factual aspects
of her case, had been unable to test the only witness and to cast doubts on her
credibility during the first examination. Having regard to the nature of the
issues decided in the impugned proceedings, which does not disclose any exceptional
circumstances, the local court should have ensured that the applicant had an
opportunity to question S. at least at her second examination, even more so
since she had contested the account given by S. and had made an explicit
request to cross-examine her.
In view of the foregoing, the Court finds that no
good reason has been shown for the failure to allow the applicant an
opportunity to examine the only witness in her case (see Khawaja and Tahery,
cited above, §120 and reference therein). This is sufficient to conclude that
there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed EUR 20,000 in respect of
pecuniary and non-pecuniary damage.
The Government argued that there was no causal
link between the violation found and the pecuniary damage alleged and that the
claim in so far as it related to non-pecuniary damage was unsubstantiated.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. In respect of non-pecuniary damage, the Court considers that
the finding of a violation is, in itself,
sufficient just satisfaction for the purposes of Article 41 of the
Convention.
B. Costs and expenses
The applicant also claimed EUR 3,000 for the
costs and expenses incurred before the Court, which included EUR 2,000 for the
preparation of the application and EUR 1,000 for the preparation of the written
observations.
The Government argued that the claim was
unsubstantiated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court notes that in the present case the
applicant did not explain her claim and submit supporting documents or detailed
information showing that the costs claimed had been actually and necessarily
incurred (see S.I. v. Slovenia, no. 45082/05, § 87, 13 October 2011). The Court
therefore rejects this claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention;
3. Holds, as regards non-pecuniary damage,
that the finding of a violation of Article 6
§§ 1 and 3 (d) constitutes, in itself, sufficient just satisfaction for the
purposes of Article 41 of the Convention;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark
Villiger
Registrar President
