BERDAJS v. SLOVENIA
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
The applicant, Mr Božo Berdajs, is a Slovenian national who was born in 1978 and lives in Šmartno Pri Litiji. He is represented before the Court by Mr L. Poljanec, from Slovenska Bistrica. The Slovenian Government (“the Government”) are represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1978 and lives in Šmartno pri Litiji. On 14 April 2007 the applicant was driving a truck near Ivančna Gorica. He was stopped by the police on suspicion of having loaded the cargo in breach of applicable road traffic rules. The police asked the applicant to weigh the truck but he then started to unload it, explaining that he had been so instructed by his superior. The police found that the applicant had committed a minor offence under section 242 §§ 1 and 3 of the Road Traffic Safety Act on account of his non-compliance with police instructions to weigh the truck, and they imposed a fine of 2,503 euros (EUR). On 9 August 2007 written notice of the payment order issued by the police was sent to the applicant, who received it on 16 August 2007. On 23 August 2007 the applicant lodged a request for judicial review which read as follows: “Grounds for request My request is based on the principle of the presumption of innocence as provided in Section 7 of the Minor Offences Act and Articles 3, 26, 26, 27 and 29 of the Constitution. Explanation Section 7 of the Minor Offences Act states the following: a person who is accused of a minor offence shall be presumed innocent until their guilt is established by a final decision. The Constitution in its Article 27 states the same. In my case there was no final judgment and therefore the second payment order issued has no legal value. I will soon have a whole collection of payment orders and decisions by which mistakes were corrected. The police cannot and should not be a body deciding on minor offences (see Article 3 of the Constitution). The charges of a criminal offence can, in accordance with Article 23 of the Constitution, be decided only by a judge. A time-limit for appeal or a request for judicial review is not compatible with Article 29 of the Constitution. It should also be indicated whether the time-limit concerns working or calendar days. An appropriate time would be thirty calendar days, since the State also needs up to thirty days to send you documents if you request them. You are charging me with an offence which you have not specified or explained clearly and about whose consequences you have submitted no evidence. As a citizen, I am not required to know the paragraphs and articles of the Road Traffic Safety Act. In any event, I do not know what I am charged with. You should present evidence concerning the consequences. I claim that I was driving in accordance with the regulation. The accuser must submit clear material or written evidence, therefore I request you to do the following: - submit documents concerning the measuring device and the evidential method required by the law on standardisation (a-tests, measuring sheets, a judicial decision proving that the results obtained by this device can be used as evidence); - submit a judicial decision proving that the results obtained with this device or with this measuring or evidential method can be used as evidence in court; - submit documents proving that the person that handled the measuring device is authorised and publicly certified to do the measuring or use the evidential method; - provide evidence proving material or any other damage resulting from the incriminated offence; - findings of the police are not evidence. The payment order has been issued and signed by an authorised person – a police officer. The Constitution states in Article 23 that only the judge can adjudicate. I am interested in the following: - is the person employed at the Ministry for Justice - has he completed a legal education - does he have a bar exam - is he a judge. If he does not fulfil the above conditions, his activities are not in compliance with Article 23 of the Constitution. Since the police belong to the executive branch of power (Article 3 of the Constitution) they cannot and should not punish and cannot act as an authority in respect of a minor offence, since this is not recognised by the Constitution. The Constitution in its Article 29 clearly regulates the proceedings concerning these charges. Since the proceedings so far have not complied with the Constitution, I have to inform you about Article 26 of the Constitution. Under section 30 of the Police Act the police shall operate in accordance with the Constitution. Since the present case also concerns a violation of fundamental human rights and freedoms, I request you to properly examine this request. Request I propose that the payment order be annulled and that the proceedings be conducted in accordance with the Constitution.” On 20 August 2008 the Ljubljana Local Court rejected the applicant’s request. The court found at the outset that the applicant had lodged “a standardised request for judicial review” in which he had made only general accusations and alleged that provisions of the Constitution had been breached. In particular, the court found that the applicant had not clearly stated why the police’s findings were false and had not indicated that he had not committed the alleged offence. His generalised statements did not raise any doubts as to the facts as established by the police. The court then summarised the findings by the police, which it found had been correctly established. As regards the alleged procedural violations, the court, referring to the relevant provisions of the Minor Offences Act (“MOA”), noted, inter alia, that the police were authorised to decide on the minor offence in question by applying summary proceedings and the police officers had authority to conduct the proceedings. It also noted that the time-limit for lodging a request for judicial review was provided for in the legislation. The court also noted that the applicant, who possessed a driving licence, should have been aware of the regulations contained in the Road Traffic Safety Act. Lastly, the court found that the police had correctly applied the law to the facts of the case and imposed a fine prescribed by law. The applicant was ordered to pay EUR 100 for the costs of the proceedings. On 16 September 2008 the applicant lodged a constitutional appeal, alleging a violation of fair trial guarantees – in particular, that any fine should be imposed by a judicial and not by a police procedure; that he had been charged and convicted by the police; and that the guarantees enshrined in Articles 23 (right to judicial protection), 24 (right to public trial) and 29 (defence rights) of the Constitution had not been provided to him. In addition, he complained that no ordinary appeal lay against the Local Court’s judgement. On 24 September 2008 the Constitutional Court dismissed the constitutional appeal. It relied on point three of the first paragraph of section 55b read together with point four of the second paragraph of section 55a of the Constitutional Court Act. The decision was served on the applicant on 1 October 2008. For the relevant domestic law and practice see Suhadolc v. Slovenia (dec.), no. 57655/08, 17 May 2011. In addition, section 242 of the Road Traffic Safety Act (Official Gazette no. 3/2004, implemented on 1 January 2005) reads as follows: “(1) A police officer can order that a vehicle be weighed if he suspects that the load which it carries has been loaded in breach of the regulation concerning road traffic. The driver must allow the vehicle to be weighed ... (2) A fine of no less than 100,000 Slovenian tolars (SIT) shall be imposed on a driver who acts in breach of the police order mentioned above. (3) A fine of no less than 600,000 SIT [EUR 2,503] shall be imposed on a company or an individual entrepreneur, if the driver acts in breach of the police order mentioned in the first paragraph of this section, the person in charge should be punished by a fine of no less than 60.000 SIT.”