2.4 JUSTICE Somewhat fewer cases (61) were discussed in this sub-section than in 2014 (92), whereby the content of issues did not change significantly. We assume that the decline in the number of complaints may also be attributed to the Constitutional Court Decision RS U-I-12/12-22 of 11 December 2014 on the elimination of imprisonment for the non-payment of fines. The share of founded complaints in this sub-section (5.6 per cent) is closely linked to the Ombudsman’s powers, since the Human Rights Ombudsman Act stipulates explicitly that the Ombudsman may not discuss cases which are subject to judicial or other legal proceedings unless undue delay in the proceedings or evident abuse of authority are established (Article 24 of the ZVarCP). Therefore, the Ombudsman’s interventions may not refer to decisions on minor offences, but to other circumstances in minor offence proceedings. Two recommendations in the 2014 report also referred to this sub-section of the Ombudsman’s work. Relating to the recommendation that all stakeholders in the procedure of supplementing a fine with community work must take into account its purpose and statutory regulation (recommendation no. 47), the fact that the proposed amendment to the ZP-1J anticipates a comprehensive renewal of the rule of supplementing a fine with community work is quite positive, and we expect it to contribute to realising this recommendation. Regarding the recommendation that the Ministry of Justice study the highlighted decisions of the ECHR from the aspect of the need to improve the Minor Offences Act (ZP-1), and that the courts respect the right to fair trial when making decisions regarding requests for judicial protection (recommendation no. 48), the Ministry explained that these issues were rather a question of case law than a question of the suitability of the provisions of the ZP-1. However, we can point out that certain complaints we considered still reveal that decision making on requests for judicial protection is still not done with sufficient due diligence. This is of some concern, since we must not overlook that an individual in minor offence proceedings has limited legal remedies, and perpetrators are actually ensured the right to judicial protection or judicial review of an alleged minor offence by means of requests for judicial protection. The Constitutional Court of the Republic of Slovenia highlighted this again in its decisions (e.g. Up-718/13-17 of 7 October 2015 and Up 187/13-8 of 7 October 2015) and also emphasised that the individual’s right to defence was one of the guarantees of fair proceedings. An individual also exercises the relevant aspects of the right to defence as per indents two and three of Article 29 of the Constitution in procedures involving a request for judicial protection. This follows from the established constitutional position that a request for judicial protection affords the individual the right to present evidence in their favour with all means of proof; the right to question prosecution witnesses; the right to review all the documentation in a case and to state their position on the case, and the right to be present during the submission of evidence when supplementing the evidence-taking procedure. These rights are in accordance with the court’s duty to acknowledge all allegations of a client, weigh in on their relevance and permissibility and state its position on the allegations, which are permissible and important for a decision. In decision ref. no. IV Ips 38/2015, the Constitutional Court of the Republic of Slovenia also stressed that the existing legal arrangements for requests for judicial protection do not mean that the defendant’s right to personal participation in proceedings is excluded or depends merely on the judge’s subjective assessment. The judge’s area of assessment, on whether the minor offence authority determined the actual situation correctly and in full or must the evidence-taking procedure be amended or repeated as per the rules of ordinary judicial proceedings, is namely limited by the defendant’s right to a fair trial. Most of the complaints in this sub-section concerned dissatisfaction with fines or decisions taken in minor offence proceedings. Complainants wrote about the possibility of deferring the payment of fines, issues of time limits and individual actions in minor offence proceedings (e.g. breath test). Complaints concerning participation in road traffic and about the police as a minor offence authority were still predominant. Some of the relevant findings in this field are also included in the chapter on police proceedings. Example: Irregularities in a minor offence procedure The complainant stated that as a responsible person of a legal entity (owner of a car with which a minor offence had been committed) he was served a payment order by Medvode Police Station (PS) due to a minor offence as per paragraph four of Article 46 of the Act of rules on road transport (ZPrCP). He believed that he 72 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 could not be held responsible for the minor offence, since he was not the responsible person of the legal entity at the time the offence was committed, which was also evident from the data of the Agency of the Republic of Slovenia for Public Legal Records and Related Services. The complainant tried to inform the minor offence authority of this, but unsuccessfully, and in a (late) request for judicial protection and a request for revocation of the decision. We requested the Ministry of the Interior to state its position on the complainant’s claims and the justification of the finding that the complainant was the responsible person of the company at the time of the offence. We also determined that the request of Medvode PS for the submission of data on the driver included only the submission of data on the user or driver (name and surname, birth data and permanent address) who had used the car on the relevant day. Although the company provided all the required information (and even attached a copy of the driving license of the driver using the car), this did not suffice. Because the driver was a citizen of Serbia, his statement should also have been provided, although the first request of Medvode PS did not contain such a request. It was stated in one of the later replies of Medvode PS that the legal entity had failed to attach more credible pieces of evidence to its reply (e.g. a certified photocopy of the driving license, a copy of a travel order, a copy of the lease agreement, a statement by the actual offender etc.). We thus also requested a clarification of the claims made by Medvode PS, or clarification of the basis for the conclusion that a statement by a driver must be submitted in the case of a foreign driver and other “more credible pieces of evidence”. We inquired about the legal basis for such requirements, and in what way, and when, the company as the owner of the vehicle involved in the offence was informed of these requirements. We added that it would have been suitable if the request for submission of data on the driver who had committed the offence consisted of clear requirements about which data were to be submitted, and particularly, that it was necessary to provide all facts and evidence to one’s own benefit in a (timely) reply, since they may not be used later. The Ministry of the Interior determined that, following the receipt of the (first) request to revoke the decision submitted by the complainant’s attorney, the minor offence authority’s authorised officer at Medvode PS failed to verify the statement that the complainant was not the responsible person of the legal entity at the time of the offence. Had this been verified, it could have been established that the reasons for revoking the decision at the proposal of the minor offence authority were given as per Article 171a of the Minor Offences Act (ZP-1), since the complainant was actually not the responsible person of the company which owned or had the right to use the vehicle involved in the offence at the time of the offence, which was evident from the official records of the Agency of the Republic of Slovenia for Public Legal Records and Related Services. The Ministry thus determined that the authorised officer had made the decision too quickly and issued the payment order to the responsible person of the legal entity. It also added that, according to the fact that the deadline determined by the authorised officer in the request for data on the driver was an indicative period (i.e. a deadline specified by the minor offence authority which is not a statutorily determined deadline) on the basis of paragraph one of Article 51 of the ZP-1, the officer could have requested the legal entity to supplement its reply with additional evidence (e.g. copy of a lease agreement, copy of a travel order, copy of the company car log book) and then decide on the basis of additional evidence if it was possible to ascertain who was driving the car at the relevant time. According to the Ministry, the minor offence authority’s authorised officer failed to discuss the relevant request for judicial protection comprehensively, since they overlooked the key fact included in the request, i.e. that the complainant was not the responsible person of the legal entity at the time of the offence and could thus not be held liable for the offence as per paragraph two of Article 8 of the ZPrCP. The Ministry further determined that the complainant’s attorney had informed the minor offence authority in her first letter (request for judicial protection) that the complainant was not the responsible person at the time of the offence. So, the conditions under indents three and four of paragraph one of Article 171a of the ZP-1 for filing the request for revocation or amending the decision as per paragraph one of Article 171a of the ZP-1 had been met already at that time. The Ministry concluded that the authorised officer should have filed such request with the court already upon the receipt of the request for judicial protection. Apparently, the minor offence authority had done so only after the complainant’s attorney submitted another request for revocation, which the complainant submitted with the help of another counsel, having also contacted the Ombudsman. The Ministry informed us that Medvode PS submitted a request for the revocation of the recovery of court fee determined in the decision rejecting the request for judicial protection. The Ministry also stated that the police would highlight this example in its training of authorised officers who conduct and decide in minor offence ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 73 2.4 JUSTICE 2.4.4 Minor offence proceedings