CASE OF KARIŽ v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing)
Aleš Pejchal;Helena Jäderblom
4. The applicant was born in 1966 and lives in Portorož. 5. On 13 March 2010 the police issued a payment order fining the applicant 540 euros (EUR) for two traffic offences under Section 27(1) and (3) and Section 135(3) and (5) of the Road Traffic Safety Act. From the police’s description of the facts and evidence it appears that on 13 March 2010 at 9:45 am while trying to overtake X’s car, which had been improperly parked, the applicant failed to make sure that he could do so without endangering X’s car and with the rear right end of his car he hit the rear left end of X’s car. Allegedly, after the collision the applicant left the scene of the accident without submitting his personal data to X who was not present during the accident or notifying the police that he had been involved in an accident. X stated to the police that an unknown witness told him that the person responsible for the accident was driving a dark car with the number plate LJ 37-33. On the basis of this information the police checked two vehicles with number plates LJ 37-33V and LJ 37-33L. These vehicles did not show any sign of damage. On 14 March 2010 X informed the police that he had found a dark car with the number plate KP L3-733. The police established that the owner of the car was the applicant. On the same day the police interviewed the applicant and checked his car. They found that the damage on the applicant’s car corresponded to that of X’s car. They further found that Y was present in the applicant’s car during the accident. 6. On 31 March 2010 the applicant lodged an objection. He argued that he did not detect any collision between the two cars and that, accordingly, he had not informed X or the police of the accident; that there had been many passers-by on the road who had witnessed how he had been manoeuvring the car but nobody had warned him of any kind of abrasion or dent caused to X’s car; that he lived at the address of the scene of the accident and would have never left the scene even if he had caused the damage; that he had been informed of the accident only the following day when called by the police, and that together with the police he had checked his car visually and discovered a scratch of 10 to 15 cm in length for which he did not know when it appeared. According to the applicant, due to X’s improper parking any vehicle could have hit his car; from the damage on X’s car it was clear that the applicant could not have caused the damage with his car. The applicant reiterated that if he had detected the accident he would have reported it and this fact could have been proved by witness Y which was present in his car. He described in detail the events of 13 March 2010, namely approximately at 9.30 am he drove out of the parking spaces, he wanted to turn to the right but two cars prevented him from doing so because they were actually parked on the road; the cars parked posed a threat to road traffic safety because the space between them would have not allowed an ambulance or any other emergency vehicle to pass; in such a situation the applicant was forced to position his car at an appropriate angle to enable him to pass safely between the cars; he had to fold both side mirrors; otherwise he would not have been able to pass the two parked vehicles without collision; he manoeuvred his car at almost zero speed and was not aware that he had caused an abrasion or damage to any other vehicle. 7. On 14 April 2010 the police issued a reasoned decision finding the applicant guilty of the abovementioned minor offences. 8. On 29 April 2010 the applicant lodged a request for judicial review. He complained that the police had not sufficiently established the facts; he had not left or escaped the scene of the accident; he had not been aware of any collision and, consequently, he did not inform X and the police thereof in accordance with Section 135(3) of the Road Traffic Safety Act. He further stated that he wanted to turn right onto the carriageway but he was prevented from doing so by two cars parked on the carriageway – on the left and on the right sides of the road. One of the cars was X’s car. When he wanted to drive out of the garage he could not do so and was forced to manoeuvre for quite some time to position the car at an appropriate angle and had to straighten the car almost completely to be able to pass freely between the two cars. In order to do it safely he had to fold in both side mirrors because otherwise he would have not been able to pass the parked cars without colliding with them. During the manoeuvring he was not aware that he had caused an abrasion or damage to the cars. The manoeuvring speed was minimal. There were many passers-by who witnessed the manoeuvring but did not warn him of any accident. In order to prove these allegations the applicant proposed that he and Y be heard. He further stated that police had not considered the fact that he lived at the address of the scene of the accident and therefore he had no interest in leaving the scene. He drove to a filling station, went shopping and visited his parents. As evidence he submitted a fuel purchase receipt and a shop receipt and proposed the hearing of his parents. He further argued that if he had left the scene of the accident intentionally he would have concealed the scratches on his car. Even if he had collided with X’s car he would not have been aware of it since his car was a diesel-fuelled car which tended to vibrate heavily. Moreover, his radio was always turned on which reduced the likelihood of noticing the collision. In order to prove this he proposed that he and Y be heard. He argued that he was not aware of the date when the scratch appeared on his car since the car was seven years old and had many other scratches. Since X’s car had been improperly parked any vehicle could have collided with it. The police did not clarify on the basis of which fact they had concluded that the scratch on his car corresponded to the damage on X’s car. In the applicant’s view X had been frenetically searching for the culprit and as soon as he found a black car 9. On 12 September 2011 the Ljubljana Local Court rejected the request for judicial review without holding a hearing. The Local Court held that it had no reason to doubt the findings of the police who conducted an interview with the applicant and a visual inspection of his car during which they noticed damage which corresponded to the damage on X’s car. According to the court, it was clear from the documents of the case-file, in particular the photographs of X’s car, that the damage had been caused by the applicant’s car and the applicant’s complaints in this respect remained general and subjective. In particular, the allegations that the accident would have been reported by passers-by or that the applicant would not have left the scene of the accident if he had noticed it were subjective and could not be verified. The applicant could not be released from his responsibility for the minor offence by stating that he had not been aware of the collision because this was, again, a subjective allegation. Every participant in road traffic, in the circumstances described by the applicant, was expected to be particularly alert and to detect the collision. Regarding the allegation that X’s car was parked on the road and that it had endangered the traffic safety the court stressed that only the applicant’s behaviour was at issue. It held that according to Section 135(5) of the Road Traffic Safety Act a traffic offender who had left the scene of the accident should have immediately notified the injured party or the police the information referred to in that Section. The court therefore did not have to reply to the applicant’s allegations that he had not left the scene to an unknown place as they were legally irrelevant. Finally, the evidence submitted by the applicant could not change the conclusions of the police and it was only an attempt to delay the proceedings since the motions for evidence did not comply with the required legal standards regarding the subject-matter about which the witnesses proposed might have testified. 10. On 9 November 2011 the applicant lodged a constitutional appeal. 11. On 26 March 2012 the Constitutional Court rejected the appeal as inadmissible.