Infringement of the right of access to justice due to excessive formalism of national authorities
JUDGMENT
Bošnjački v. Serbia 30.04.2024 (app. no. 37630/19)
SUMMARY
Infringement of the applicant’s right of access to a court in the context of proceedings relating to an infringement of the Code.
The national courts rejected the applicant’s application for judicial review because he had not signed the fine notice issued by the police.
The applicant complained under Article 6 § 1 that he had been deprived of his right to apply to the courts, since his application for judicial review of his case had been rejected by the national courts simply because he had not signed the fine notice itself.
The Court pointed out that, by jointly submitting two documents to the competent domestic court, namely the unsigned fine notice and the signed separate application for judicial review, the applicant had expressly expressed his intention to challenge the sentence imposed on him by the police and to seek a judicial review.
Strasbourg held that the way in which the national courts had applied the relevant procedural rules in the case was formalistic and could not be regarded as proportionate to the aim that the legislation applied was intended to achieve. Indeed, the Constitutional Court itself has recently changed its jurisprudence in similar cases, recognising that the previous practice amounted to excessive formalism in restricting the applicant’s access to a court within the meaning of the right to a fair trial.
The ECtHR found a violation of Article 6 § 1 and awarded the applicant EUR 2,000 for non-material damage and EUR 1,800 for costs.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The application concerns the applicant’s right of access to a court in the context of misdemeanour proceedings related to a traffic offence. In particular, the domestic courts dismissed the applicant’s request for judicial review because he had not signed the penalty notice (prekršajni nalog) issued by the police.
On 25 June 2018 police officers from the Ruma Police Department served the applicant with a penalty notice containing a fine in the amount of 5,000 Serbian dinars – approximately 42 euros (EUR) at that time – for the illegal parking of his motor vehicle. The applicant, however, did not sign the penalty notice in the space designated for this purpose. On the back of the penalty notice, it was furthermore specified that if a person did not accept responsibility for the misdemeanour at issue he or she had the right to request a judicial review of the case by submitting the penalty notice to the Misdemeanours Court within a period of eight days, in accordance with the Article 174 of the Misdemeanours Act. It was lastly stated that an unpaid fine could, inter alia, also be replaced by an effective prison term.
Article 174 of the Misdemeanours Act, which was in force at the material time, provided, inter alia, that a person who did not accept responsibility for the misdemeanour in question had the right to submit a request for judicial review, by forwarding the signed penalty notice to the relevant court.
On 28 June 2018 the applicant submitted a separate and signed request for judicial review with the Ruma Misdemeanours Court. In this submission, he contested the allegations from the penalty notice and requested a hearing. The applicant also attached the unsigned penalty notice.
On 6 July 2018 the Ruma Misdemeanours Court dismissed the request for judicial review on the grounds that the applicant had failed to sign the penalty notice, as required by Article 174 of Misdemeanours Act.
On 16 July 2018 the applicant lodged an appeal against that decision. Therein he referenced, inter alia, the earlier case-law of the Misdemeanours Court of Appeals which had allegedly stated that the signature of a penalty notice was not mandatory if it was submitted together with another signed document.
On 28 August 2018 the Misdemeanours Court of Appeal rejected the applicant’s appeal and upheld the decision rendered at first instance.
On 18 April 2019 the Constitutional Court also ruled against the applicant (Už. no. 11919/2018) and in so doing found that he had suffered no significant disadvantage because of the amount of the fine imposed.
On 6 April 2023, following the communication of the application giving rise to the proceedings in the present case to the respondent Government, the Constitutional Court addressed a case similar to the one brought by the applicant. In its decision (Už. no. 7921/2019), the Constitutional Court opined as follows:
“Bearing in mind that the … case [of] Bošnjački v. Serbia was … [communicated] … to the Republic of Serbia with a reference to the appropriate practice of the ECtHR regarding the violation of [one’s] access to a court, and that that case [in hand] concerns a substantially similar factual and legal situation …, the Constitutional Court has decided to reconsider its previous practice … with regard to the disputed legal issue – the unsigned misdemeanour notice and the right of access to a court…”
The Constitutional Court then went on to rule in favour of the appellant and find a violation of his right to a fair trial based on excessive formalism.
The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right of access to a court given that his request for the judicial review of his case was rejected by the national courts merely on the grounds that he had not signed the penalty notice itself.
THE DECISION OF THE COURT…
Whether there has been an abuse of the right of individual petition
The Government submitted, without raising a formal objection to this effect, that in his appeal which he had lodged with the Misdemeanours Court of Appeals the applicant had “completely misrepresented” the case-law of that court. In the same vein, the Government argued that the applicant had also “falsely claimed” in his application before the Court itself that the Misdemeanours Court of Appeals had previously ruled that the signing of a penalty notice had not been deemed obligatory if submitted together with another signed document. According to the Government, the applicant thus attempted to “mislead the Court” by providing it “with false evidence.”
The applicant offered no comments in this respect.
The Court recalls that an application may be rejected as abusive under Article 35 § 3 (a) of the Convention if, inter alia, it was knowingly based on untrue facts and false declarations. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see, Paun Jovanović v. Serbia, no. 41394/15, §§ 41 and 42, 7 February 2023). Moreover, the absence of a Government’s formal abuse objection in this connection does not preclude the Court from the examination of the matter proprio motu (see, for example, Zarubica v. Serbia (dec.), no. 35044/07 and two other applications, 26 May 2015, with further references).
Turning to the present case, the Court observes that regardless of the nature of the applicant’s submissions to the national courts, this occurred within the context of domestic proceedings rather than in his communication with or with reference to this Court. It follows that the Government’s suggestions in this regard are of no relevance in the context of the applicant’s alleged abuse of the right of individual application.
It is furthermore understood that, despite the Government’s submissions the contrary, the applicant did not rely on or even mention the said domestic case-law in his application form lodged with the Court. At the same time, its mere inclusion among other documents which were attached to the application cannot in itself be considered as an attempt to mislead the Court.
In view of the foregoing, the Court is of the opinion that the applicant’s conduct did not constitute an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.
- Compatibility ratione materiae
The Court considers that the traffic-related offence in question concerned “a criminal charge” against the applicant within the meaning of Article 6 § 1 of the Convention and that as such it clearly attracted the guarantees of that provision (see, mutatis mutandis, Mesesnel v. Slovenia, no. 22163/08, §§ 28, 6 and 7, in that order, 28 February 2013, with further references; see also paragraph 2 above as regards the fine and its possible conversion into an effective prison term).
- Whether the applicant suffered a significant disadvantage
The Government submitted that the applicant’s complaint should be declared inadmissible since he had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention.
The applicant contested this objection and referred to the Court’s relevant case-law.
Irrespective of the financial impact of the fine imposed on the applicant, the Government’s objection cannot be accepted since the issue of access to a court in criminal matters is, by its very nature, of particular significance regarding the proper functioning and fairness of a given State’s criminal justice system. There is hence an issue of general interest which cannot be considered trivial, or, consequently, something that does not deserve an examination on the merits.
In view of the foregoing, the Government’s objection must be dismissed.
- Conclusion
The Court notes that the applicant’s complaint is also not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
