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Up-3663/07-15
10. 9. 2009
DECISION
At a session held on 10 September 2009 in proceedings to decide upon the constitutional complaint of Saša Zagorc, Gornja Radgona, the Constitutional Court
decided as follows:
The Judgment of the Local Court in Ljubljana No. PR 17344/2006, dated 17 September 2007, is annulled and the case is remanded to the Local Court in Ljubljana for new adjudication.
Reasoning
A.
1. A penalty notice for a minor offence under the sixth paragraph of Article 52 of the Road Traffic Safety Act (Official Gazette RS, No. 83/04 et sub., hereinafter referred to as RTSA-1) was issued to the complainant. The complainant lodged a request for judicial protection against the penalty notice and the court dismissed this request as not substantiated. The court has justified its decision by the provision of the first paragraph of Article 233 RTSA-1, which provides for the presumption that the owner of a vehicle is responsible [for a minor offence committed with the vehicle], and stated that the complainant had not presented any documents testifying to his whereabouts and had not substantiated his claim with any evidence and thus had not proved therewith that he had not committed the minor offence himself.
2. The complainant alleges the violation of Articles 2, 21, and 22, first paragraph of Article 32, and Article 35 of the Constitution. He alleges that the court did not consider all the submitted evidence. In his opinion, the court wrongly stated that the complainant had not supported his allegations with any evidence. Allegedly, the court has established a standard of evidence by which an individual may transfer the burden of proof to the opposing party without any legal basis. It allegedly follows from the judgment that the alleged perpetrator is obliged to precisely document his or her whereabouts. The court allegedly arbitrarily and without providing reasons departed from the established case-law, which allows the establishment of facts by questioning the supposed perpetrator and witnesses in a procedure relating to a minor offence. It allegedly decided in advance that the written evidence has a higher evidentiary value than the evidence obtained by questioning the alleged perpetrator and the witnesses. The court allegedly had no legal basis for acting in this way. Such conduct allegedly does not follow from the established case-law. The owner of a vehicle would allegedly be formally informed that another person had committed a minor offence [with the vehicle] only after receiving the penalty notice, but would allegedly have difficulty securing written evidence about his or her own whereabouts because of the rather long time lapse between the day the minor offence was committed and the day the fine would be received. Accepting the position of the court would allegedly mean that the owners of vehicles would have to document their own whereabouts at all times in order to have effective means for their defence. Such a position is allegedly contrary to the general freedom of conduct determined in Article 35 of the Constitution and excessively interferes with the presumption of innocence in the procedure relating to a minor offence (Article 2 of the Constitution). The position of the court allegedly limits the right of the complainant to use all facts and evidence to his benefit. The finding that an alleged perpetrator was not present at the scene where the minor offence was committed at the critical moment should allegedly suffice for exonerating the alleged perpetrator. Forcing someone to explain his or her precise whereabouts lest the legal presumption prevail is allegedly an interference with the freedom of movement (the first paragraph of Article 32 of the Constitution). The court allegedly put the complainant in an unconstitutional position by forcing him to testify against those nearest to him if he wanted to exonerate himself. The complainant explains that he exercised the "legal beneficium" not to denounce, testify against, or expose in some other way those nearest to him to persecution in relation to the minor offence. This is allegedly a special reflection of the general principle prohibiting "compulsory self-incrimination" (Articles 21 and 2 of the Constitution), which also has an explicit legal basis.
3. The complainant justifies that the importance of the constitutional question exceeds the importance of the concrete case by alleging that the constitutional-judicial confirmation of the case-law presented in this matter would cause judicial arbitrariness, which is unacceptable. The court allegedly determined disproportional standards of evidence for transferring the burden of proof in this case and limited the possibility of submitting facts and evidence to the benefit of the complainant without a legal basis and without providing reasons. The submission of evidence was allegedly unjustifiably limited in such a way that only written evidence or evidence proving only certain facts was permitted. The complainant states that in the situations where a reversed burden of proof applies, the court should carefully evaluate all the submitted evidence by which the alleged perpetrator attempts "to exonerate him- or herself from the legally presumed responsibility for the minor offence". On the basis of the case-law established by the court in this particular case, the individual's possibilities to convince the judge that he or she has not committed the offence are allegedly limited in such a way that it is no longer possible to speak of a fair trial.
4. The panel of the Constitutional Court accepted the constitutional complaint for consideration by Order No. Up-3663/07, dated 19 June 2009. Pursuant to the first paragraph of Article 56 of the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as the CCA), the Constitutional Court notified the Local Court in Ljubljana of the acceptance of the constitutional complaint for consideration.
5. The Constitutional Court inspected court file No. PR-17344/2006 of the Local Court in Ljubljana.
B.
6. The complainant claims that the court unjustifiably restricted the possibility to submit evidence by taking into consideration only the written evidence or only the evidence proving certain facts. The Constitutional Court reviewed this allegation within the framework of the right to present evidence to the benefit of the defendant, contained in the third indent of Article 29 of the Constitution.
7. The provision of Article 29 of the Constitution is a specialised provision in relation to the rights stemming from Article 22 (Equal Protection of Rights) and Article 23 of the Constitution (Right to Judicial Protection). The provision of Article 29 of the Constitution regulates the legal guarantees granted to the defendant in a criminal procedure, the purpose of which is to ensure the defendant a fair trial before an independent and impartial court. The Constitutional Court has already confirmed the view, in Decision No. Up-120/97, dated 18 March 1999 (Official Gazette RS, No. 31/99 and OdlUS VIII, 126), that the fundamental guarantees of a fair trial must also be ensured to the defendant in procedures concerning a minor offence. It is essential for a fair trial that the person whose rights, obligations, or legal interests are the subject of a judicial procedure, has adequate and sufficient possibilities to take a position regarding the factual and legal aspects of the case and that he or she is on an equal footing with the opposing party. The right of the defendant to submit evidence to his or her benefit, determined in the third indent of Article 29 of the Constitution, serves this purpose.
8. As follows from the well-established constitutional case-law, in accordance with the principle of the free evaluation of evidence, the court alone decides which evidence it will take and in what way the credibility of the evidence will be judged. Regardless of the fact that the court is not obliged to take all the evidence submitted by the defence, it must take the evidence which is relevant from the perspective of substantive law and for which the defence has justified 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 submitted evidence has already been proven or has no influence on the case, or if the means of evidence are unsuitable or unattainable.1 In any case, it is evident that the evidence submitted concerning the alibi is crucial. Therefore, the court is obligated to thoroughly check the alibi, if the defence, when submitting the evidence, shows that the alibi is at least probable.2
9. Taking evidence to the benefit of the defendant can be effective only if in the criminal or minor offence procedure the question of the defendant’s responsibility is decided with the help of all available means of evidence appropriate for establishing the facts.3 The defendant is thusly given an opportunity to influence the findings of the court concerning the legally relevant facts and ensured an equal footing in comparison with the opposing party.4 If the possibility to take evidence is limited in such a way that only certain means of evidence are allowed, this constitutes an interference with the right contained in the third indent of Article 29 of the Constitution.
10. In the case at issue the complainant submitted exonerating evidence. He was trying to prove his alibi in the request for judicial protection by providing information concerning a person who could confirm that he was not present at the scene of the minor offence at the time the minor offence was committed.5 The court indirectly took a position concerning this proposed evidence by stating that the complainant had not produced any document as to his whereabouts and had not produced any evidence supporting his claims. The court obviously held that the complainant could exonerate himself of the presumed responsibility in the circumstances under the first paragraph of Article 233 of RTSA-1 if he could submit documents demonstrating his whereabouts at the time the minor offence was committed. By this position, which represents a limitation on the means of evidence, the court interfered with the complainant's right contained in the third indent of Article 29 of the Constitution. Therefore, the question whether the court had a constitutionally admissible reason for interfering with the mentioned right must be answered.
11. There is no constitutionally admissible reason for preventing the defendant from proving a circumstance essential for deciding his or her responsibility for a minor offence if his or her responsibility is presumed (the first paragraph of Article 233 of RTSA-1). In Decision No. U-I-295/05, dated 19 June 2008 (Official Gazette RS, No. 73/08), in which the Constitutional Court found that the provision of the first paragraph of Article 233 of RTSA-1, which defines the presumption of the responsibility of the owner of a vehicle, is consistent with the Constitution, the Court stated, inter alia, that this provision does not stipulate that the defendant must convince the court that he or she has not committed a minor offence, but rather it imposes upon the owner of the vehicle or the holder of the right to use the vehicle the obligation to submit exonerating evidence. When such evidence is submitted the court must assess, in accordance with the principle of the free weighing of evidence, whether such evidence establishes a reasonable doubt concerning the presumed fact. The provision of the first paragraph of Article 233 of RTSA-1 cannot be interpreted in such a way that a defendant may exonerate him- or herself only by convincing the court that he or she has not committed the minor offence. The position of the court that it would not allow the exonerating evidence because a defendant is able to prove a certain decisive fact only by "documenting" his or her whereabouts, entails a non-admissible limitation as regards the choice of the means of evidence. With regard to the above-mentioned, the challenged judgment is based on an interpretation inconsistent with the right contained in the third indent of Article 29 of the Constitution. Therefore, the Constitutional Court decided that the challenged judgment is annulled and the case is hereby remanded to the Local Court in Ljubljana for new adjudication.
12. In the light of the fact that the Constitutional Court has annulled the challenged judgment due to the established violation of the right determined in the third indent of Article 29 of the Constitution, the Constitutional Court did not need to review the other alleged violations of human rights.
C.
13. The Constitutional Court reached this decision on the basis of the first paragraph of Article 59 of the CCA, composed of: Jože Tratnik, President, and Judges Dr. Mitja Deisinger, Mag. Marta Klampfer, Mag. Marija Krisper Kramberger, Mag. Miroslav Mozetič, Dr Ernest Petrič, Jasna Pogačar, and Jan Zobec. Judge Dr. Ciril Ribičič was disqualified from deciding in the case. The decision was reached by seven votes against one. Judge Klampfer voted against.
Jože Tratnik
President
[1] Constitutional Court Decision No. Up-203/97, dated 16 March 2000, OdlUS IX, 133.
[2] Constitutional Court Decision No. Up-34/93, dated 8 June 1995, OdlUS IV, 129.
[3] A means of evidence is completely inappropriate for establishing a given fact when it is certain that this fact cannot be ascertained by such means. The court may not decide upon the inappropriateness of a means of evidence on the basis of the result of the evidence taken up to this point in the procedure or substantiate the inappropriateness of the means only on the basis of the probable deficient value of the evidence. Taking evidence may be inappropriate when a certain fact is to be proven that is not accessible to the witness or if the inaccessibility is caused by concrete, objective circumstances (e.g. a blind, mute, mentally ill witness). See, Eisenberg, Ulrich: Beweisrecht der StPO, Spezialkommentar, 6th Edition, Verlag C. H. Beck, München 2008, pp. 69.
[4] Concerning the right of a party to make statements in civil and administrative procedures, of which the right to submit evidence is a constituent part, the Constitutional Court has already stated that limiting acceptable evidence in such a way that only certain types of means of evidence are allowed, constitutes an interference with the right to the equal protection of rights stemming from Article 22 of the Constitution (see, for example, Decisions No. U-I-397/98, dated 21 March 2002, Official Gazette RS, No. 35/02 and OdlUS XI, 49 and No. Up-642/05, dated 7 February 2007, Official Gazette RS, No. 16/07 and OdlUS XVI, 38).
[5] He has stated that the fact he was someplace else at the time the minor offence was committed (on the way to his place of residence) may be confirmed by his family members and an acquaintance, also stating the address of the latter.
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