CASE OF PETEK v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Ann Power-Forde;Helena Jäderblom
4. The applicant was born in 1963 and lives in Žalec. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 4 May 2008, the applicant lost control over his motorcycle on a bend by, allegedly, failing to adjust his speed to the road conditions. Consequently, he was severely injured. 7. On 29 July 2008 the police sent the applicant a penalty notice fining him 460 euros (EUR) and six penalty points for failing to adjust his speed according to the road conditions under Section 30 (5) of the Road Traffic Safety Act. 8. On 1 August 2008 the applicant lodged a request for judicial review. He argued that he had not exceeded the speed limit since he had been driving together with his friends during a Sunday trip and the bends on the relevant part of the road prevented a speed which exceeded the speed limit. In this regard, B. and G., who were driving behind him with their motorcycles, could confirm that he had not exceeded the speed limit. Firstly, in his view, the road could have been covered with sand, as it was the end of the winter time. Secondly, he argued that the road could have been slippery. Whatever the nature of the obstacle on the road, it was that obstacle that caused the traffic accident. In his further submissions he stressed again that he had been driving within the speed limit. He further drew attention to the fact that a sign should have been installed earlier, considering that many accidents involving motorcycles had happened in the past on that road. According to the applicant, one or two days after the accident a slippery road sign had been installed. Therefore, he requested the hearing of the responsible person of the Slovenian Roads Agency. Finally, he pointed out that he was a careful and experienced driver who had followed several trainings on road security. 9. On 20 May 2009 the Slovenske Konjice Local Court rejected the applicant’s request without holding a hearing. On the basis of the police record of the scene visit, the sketch of the road accident, the notice of the applicant’s physical injury, the penalty notice and the request for judicial review it held that the applicant had been driving carelessly. According to the police findings of fact, the accident happened on a sharp bend with poor visibility due to a forest embankment. Moreover, the road was divided by a solid line. The Local Court held that the applicant should have expected a slippery road and the presence of sand but he failed to adjust his speed accordingly. It further considered that the applicant’s complaints related only to exceeding the speed limit, an offence with which he was not charged. The Local Court did not comment on the applicant’s request for a hearing. 10. On 24 August 2009 the applicant proposed to the Supreme State Prosecutor’s Office to file a request for the protection of legality. 11. On 21 September 2009 the Supreme State Prosecutor’s Office notified the applicant that it would not use this legal remedy, having found no violation of a legislative provision. 12. The applicant lodged a constitutional appeal and a petition for a review of the constitutionality and legality of the Minor Offences Act (hereinafter referred to as “the MOA”). 13. On 22 June 2011 the Constitutional Court rejected the constitutional appeal and the petition as inadmissible. On 18 July 2011 this decision was served on the applicant.