CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 juillet 2023

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SLOVENIA (Application no. 10397/20)         JUDGMENT   STRASBOURG 6 July 2023   This judgment is final but it may be subject to editorial revision. In the case of Letonje v. Slovenia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Péter Paczolay , President ,   Gilberto Felici,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   10397/20) 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”) on 10   February 2020 by a Slovenian national, Mr Jure Letonje, born in 1993 and living in Velenje (“the applicant”) who was represented by Mr R. Pograjc, a lawyer practising in Ljubljana; the decision to give notice of the complaint concerning Article 6 § 1 of the Convention to the Slovenian Government (“the Government”), represented by their Agent, Ms   A. Dežman Mušič, Senior State Attorney, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 13 June 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the lack of an oral hearing during minor offence proceedings against the applicant. 2.     The applicant was accused of indecent conduct against police officers ( nedostojno vedenje ) under the Protection of Public Order Act. The police imposed a fine of 417.29 euros (EUR) on the applicant, who lodged a request for judicial protection in which he disputed the police officers’ statements concerning his conduct. 3.     The Celje Local Court dismissed his request and upheld the payment order on the basis of the file forwarded by the police, which contained the payment order, the statement of facts prepared by the police and the applicant’s request for judicial protection. It rejected the applicant’s motion “to examine all witnesses” on the ground that it was unsubstantiated. No   hearing was held. 4.     The applicant lodged a constitutional complaint against the Local Court’s judgment. The Constitutional Court, relying on section 55.a(1), the fourth indent of section 55.a(2) and section 55.a(3) as well as the third indent of 55.b(1) in connection with the fourth indent of section 55.a(2) of the Constitutional Court Act, rejected it because the applicant had not made a reasoned proposal for exceptional consideration of a constitutional complaint. 5.     The applicant complained under Article 6 §   1 of the Convention that the Local Court did not hold a public hearing where he and the witnesses could have been examined. THE COURT’S ASSESSMENT ADMISSIBILITY 6.     The Government submitted that the applicant had failed to exhaust domestic remedies because he had not put forward reasons for exceptional consideration of his case in his constitutional complaint. 7.     For the relevant legal framework, the Constitutional Court’s case-law and the Court’s case-law see Rutar and Rutar Marketing d.o.o. v. Slovenia (no. 21164/20, §§ 16-23 and 39-44, 15 December 2022). In that case the Court held that none of the decisions relied on by the Government gave a sufficiently clear indication that, at the time the applicant had lodged his constitutional complaint, the failure of a complainant to explicitly set out a proposal in favour of there being an important constitutional question would have prevented the Constitutional Court from considering whether, in substance, the conditions for exceptional consideration of the case had been met (ibid., §§ 17-21, 48-50). The Court sees no reason to reach a different conclusion in the present case. The Government’s objection should thus be dismissed. 8.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MERITS 9.     The   applicant   complained under Article 6 § 1 of the Convention that the Local Court had not examined witnesses and had not given him an opportunity to be heard in an oral and public hearing. 10.     The general principles concerning the right to an oral and public hearing have been summarised in Jussila v. Finland ([GC], no.   73053/01,   §§   40-45, ECHR 2006 ‑ XIV), and Flisar v. Slovenia (no.   3127/09, §§ 33-35, 29 September 2011). 11.     As in Flisar , cited above, the present case concerns minor offence proceedings where the applicant was found guilty of the offence of indecent conduct against police officers on the sole basis of the police officers’ observations. Also like in Flisar , the Local Court upheld the police’s decision on the basis of the file forwarded by the police without conducting an oral and public hearing (see paragraph 3 above). It dismissed his motion “to   examine all witnesses” as unsubstantiated. 12.     In his request for judicial protection, the applicant contested the payment order and challenged the credibility of certain police statements concerning his conduct. While he admitted that he was drunk and leaning on the police vehicle, he objected to the police accusation that he had not moved away from the vehicle at the police officer’s order and had sung or otherwise behaved indecently towards the police. 13.     The Government submitted that the Local Court had fined the applicant for sitting on a police vehicle, and that other circumstance was irrelevant. While the Local Court indeed stated that sitting or leaning on the police vehicle was a prohibited and inappropriate act, the Court cannot agree with the Government’s assertion that the Local Court’s judgment had been based exclusively on the undisputed fact of leaning or sitting on the police vehicle. After having described the facts concerning the applicant’s behaviour in some detail, including those which had been disputed, such as ignoring several police officer’s instructions and singing, the Local Court concluded that it had no reasons to doubt their veracity and credibility. On such basis, it found that all statutory elements of the minor offence had been fulfilled. 14.     The Court notes that not only the undisputed facts but also the disputed facts, observed by the police officers, formed the basis for the applicant’s conviction. The Court reiterates that in such circumstances an oral hearing may be essential for the protection of the accused person’s interests in that it can put the credibility of the officers’ findings to the test. In this respect, it observes that while the applicant did not expressly request the Local Court to hold an oral hearing, he did ask that it “examine all witnesses”. A request which the Local Court rejected. However, the Court considers that the Local Court could not, as a matter of fair trial, have properly determined the facts or the applicant’s guilt without a direct assessment of the evidence at an oral hearing (see Flisar , cited above, §§ 37-39, and Berdajs v.   Slovenia   (dec.), no.   10390/09, 27   March 2012). 15.     In view of the above, the Court finds that the lack of an oral hearing in the present case was incompatible with the guarantees of Article 6 § 1 of   the Convention. There has accordingly been a violation of that provision. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.     The applicant claimed 6,048 euros (EUR) in respect of pecuniary and non-pecuniary damage and EUR 515 in respect of costs and expenses incurred before the domestic courts and before the Court. 17.     The Government contested these claims. 18.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged (including the sums paid for the fines) since it cannot speculate as to the outcome of the proceedings concerned had there been no violation of the Convention. It therefore rejects this claim. 19.     With regard to the applicant’s claim for non-pecuniary damage, the Court, having regard to its case-law (see Mavrič v. Slovenia , no. 63655/11, §   29, 15 May 2014), considers that the   finding of a violation is, in itself, sufficient just satisfaction for the purposes of Article 41 of the Convention. 20.     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. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 465 covering costs under all heads, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that the finding of violation constitutes in itself sufficient just satisfaction; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 465 (four hundred sixty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 July 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President