BRADEŠKO AND RUTAR MARKETING D.O.O. v. SLOVENIA
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
1. The applicant, Mr Boštjan Bradeško, is a Slovenian national, who was born in 1965 and lives in Domžale. The applicant company, Rutar Marketing, is a limited liability company registered in Slovenia. They were represented before the Court by M. Grilc, R. Grilc and R. Vouk, lawyers practising in Klagenfurt. 2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the director of Rutar Center, which is a furniture store owned by the applicant company. 5. On 21 September 2005 and 8 March 2006 the Market Inspectorate of the Republic of Slovenia (hereinafter referred to as “the Inspectorate”) carried out inspections at Rutar Center. 6. On 28 April 2006 the Inspectorate issued a decision stating that the applicant company had failed to pay interest to customers who had put down an advance deposit to reserve their orders with the store. The decision illustrated the applicant company’s practice by listing three examples which concerned in total approximately 30 euros (EUR). It was found guilty of violating section 41 of the Consumer Protection Act. In addition, the applicant was found guilty of failing to fulfil his supervisory role so as to prevent the above violation from occurring. The applicant company was fined approximately EUR 12,500 and the applicant approximately EUR 1,250. 7. On 15 May 2006 the applicants made an application for judicial review in which they alleged that the Inspectorate had wrongly established the facts; in particular, they argued that by signing a contract which included the general terms and conditions of purchase, the customers had waived their statutory right to the payment of interest. The applicants contended that the Inspectorate should have checked with each individual customer whether they had waived the right to the payment of such interest before imposing the fines. Consequently, they alleged that the relevant law had been wrongly applied and requested that ordinary court proceedings be opened. 8. On 9 July 2008 the Ljubljana Local Court, in summary proceedings (see paragraph 13 below), delivered a judgment rejecting the application for judicial review as unfounded. Referring to the Inspectorate’s decision, reports of the Inspectorate concerning the aforementioned inspections, a written statement by the applicant company of 28 September 2005 relating to one of those reports (dated 21 September 2005), and a report the Inspectorate had drawn up after the application for judicial review had been made, the court found that the facts had been properly established by the Inspectorate and that the application was unfounded. In particular, the court observed that the rights enjoyed by the consumers by virtue of the Consumer Protection Act could not be excluded or limited by contract. Moreover, it found that the customers had not been given the option to pay for the goods in full on delivery. The applicant company was ordered to pay EUR 450 and the applicant EUR 200 in court fees. The judgment, which included an instruction that there would be no right of appeal, was served on them on 4 August 2008. 9. On 25 September 2008 the applicants requested to the Supreme Public Prosecutor to lodge a request for the protection of legality (extraordinary appeal) before the Supreme Court. They argued, in particular, that the sanction had been disproportionate and unlawful. As regards the latter, they argued that the minimum fines prescribed for the offence in question had been reduced to EUR 3,000 for a company and EUR 1,200 for an individual by the Amendment to the Consumer Protection Act, which had entered into force on 15 January 2008. The court, in their submission, had failed to take that into account and to impose a lower fine in accordance with the legislation or, alternatively, give the applicants a right of appeal against the judgment which, under the Minor Offences Act, was permitted in cases where the fine imposed was higher than the minimum fine prescribed. The applicants made no complaints with regard to the lack of an oral hearing before the local court. 10. On 27 October 2008 the Supreme Public Prosecutor replied to the applicants, informing them that he had no intention of lodging a request for the protection of legality in their case. He explained that although they were correct in arguing that a lower fine should have been imposed on them in line with the amended Consumer Protection Act, their case was not important enough for the development of jurisprudence, nor had they argued that it had had any serious consequences for them. 11. Section 41 of the Consumer Protection Act reads, in its relevant part, as follows: “(1) If the company expressly or implicitly provides for the purchase of goods or services subject to a full or partial deposit and delivers the goods or service after the receipt of that deposit, it is obliged to pay ... interest to the customer ...” Section 77 provides, in so far as relevant: “(1) ... a company shall be issued with a fine of between 3,000,000 [approximately EUR 12,500] and 10,000,000 Slovenian tolars if: ... 16. it does not specify in the final invoice, and pay the customer, the interest due on the deposit paid at the interest rate ... (section 41); (2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between 300,000 [approximately EUR 1,250] and 1,000,000 Slovenian tolars.” 12. Section 22 of the Amendment to the Customer Protection Act, which entered into force on 15 January 2008, amended section 77 as follows: “(1) ... a company shall be issued with a fine of between EUR 3,000 and EUR 40,000 if: ... (2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between EUR 1,200 and EUR 4,000.” 13. For details of the relevant provisions of the Minor Offences Act, in particular those concerning “summary proceedings”, see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). As regards the right of appeal in such proceedings ‒ an issue of particular relevance to the present case ‒ section 66(2) reads, in so far as relevant, as follows: “An appeal may be lodged against ... decisions of the court of first instance ... in cases where the fine imposed was higher than the minimum fine prescribed for that offence ...” Such an appeal may be lodged on any grounds, except points of fact. 14. A request for the protection of legality is an extraordinary appeal that may be lodged by the Supreme Public Prosecutor, either proprio motu or on the initiative of a party to the proceedings or another person entitled to do so under the Minor Offences Act, against any final judicial decision issued in the minor offences proceedings. It can be used to complain about a violation of the rules of substantive or procedural law. These requests are dealt with by a three-member panel of the Supreme Court. 15. The 2007 Amendment to the Constitutional Court Act, which entered into force on 15 July 2007, limits the availability of constitutional appeals by, inter alia, excluding in principle the possibility to challenge decisions issued in proceedings concerning minor offences. However, in exceptional circumstances such cases can be examined if they raise an important constitutional question extending beyond that particular case. The relevant provisions of the Act read as follows: “(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions: - issued in small-claims disputes ...; - concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal; - issued in trespass to property disputes; - issued in minor offence cases. (3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.” “(1) A constitutional appeal shall be rejected: - if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant; - if the complainant does not have a legal interest in a decision on the constitutional appeal; - if it is not admissible, except in the instance referred to in the third paragraph of the preceding section; - if it was not lodged in due time; ... (2) A constitutional appeal shall be accepted for consideration: - if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or - if it concerns an important constitutional question which goes beyond the importance of the actual case. ...” 16. The Constitutional Court held in its decision no. 120/97 of 21 May 1997 that the guarantees of a fair trial applicable to criminal proceedings should, in principle, also apply to minor offences proceedings, in particular as regards the right of the accused to participate in the proceedings and express their views on all relevant factual and legal issues. The court’s views were confirmed on a number of occasions in its subsequent case-law, notably in decision no. Up-3663/07 of 10 September 2009, in which it found that the applicant should have been given the opportunity to exonerate himself from the charges by producing a witness who could confirm that he had not been present at the scene of the minor offence at the time it had been committed. 17. In that decision the Constitutional Court explicitly stated: “Regardless of the fact that the court is not obliged to accept all the evidence submitted by the defence, it must accept the evidence which is relevant from the perspective of substantive law and for which the defence has shown with a sufficient degree of probability that it exists and is legally relevant. The court may dismiss evidence submitted if taking further evidence is redundant because the case is clear, if the fact to be proved by the evidence submitted has already been proved or has no influence on the case, or if the means of evidence are unsuitable or unattainable.” 18. Moreover, in decision no. Up-1293/10 of 21 June 2012 the court found a violation of the Constitution on the grounds that the local court had refused to hold an oral hearing, which had deprived the applicant of an opportunity to have examined the incriminating witnesses on whose statements the decision had been based. Similar issues were also examined in another recent decision, no. Up-1544/10 of 21 June 2012. Finally, decision no. Up-953/07 of 9 April 2009, also adopted under the new admissibility criteria, included, inter alia, an examination of the penalty imposed for the minor offence in question.