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FIFTH SECTION

Application no. 51485/07
by Alojz LOZINŠEK
against Slovenia
lodged on 22 October 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Alojz Lozinšek, is a Slovenian national who was born in 1952 and lives in Ptuj.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 3 June 2001 the applicant was charged with the criminal offence of “violent behaviour” (nasilništvo) against K.V., his girlfriend, under Article 299 § 1 of the Criminal Code. The indictment alleged that on 29, 30 and 31 May 2001 he had put K.V. in danger by putting a knife to her neck and threatening to stab her, which led K.V., who had been attacked by the applicant previously, to fear for her safety and to attempt to commit suicide by throwing herself into the river Drava. It also alleged that his behaviour had disturbed K.V.’s neighbours.

The Ptuj Local Court held hearings on 27 June and 5 July 2001. It heard the applicant and examined the alleged victim as well as six witnesses.

At the last hearing, on 5 July 2001, the Ptuj District Prosecutor modified the indictment so that the applicant was charged under Article 145 § 1 of the Criminal Code with “endangering a person’s safety” (ogrožanje varnosti) on 29 May 2001 by allegedly saying that he would take a knife and stab K.V.

The applicant confirmed that he understood the modification of the indictment and his representative requested that the hearing be adjourned in order for him to prepare a defence to the new charges. The court rejected his request, however, finding that the facts had been sufficiently established and that the charges had been modified to the applicant’s advantage. On the same day the applicant was convicted of endangering safety by “threatening K.V. with a knife, which she had perceived as a serious threat because of the applicant’s previous attacks and the bodily harm he had caused her”. The applicant was sentenced to three months in prison.

On 20 September 2001 the applicant lodged an appeal alleging that the court had not allowed him time to prepare a defence in respect of the modified charges. He further disputed the local court’s assessment of the evidence and application of the law, as well as alleging that the judgment lacked adequate reasoning.

On 22 February 2003 the Maribor Higher Court rejected the applicant’s appeal but suspended the prison sentence. As regards the modification of the charge, the court found that the change had led to the applicant being convicted of a criminal offence which was less serious than the one with which he had initially been charged and that the prosecution had dropped practically all the allegations against the applicant and maintained only the one concerning his threatening K.V. with a knife. Since the change was to the applicant’s advantage and as it concerned facts already contained in the initial indictment, in refusing to adjourn the hearing the local court did not violate the applicant’s defence rights. In the Higher Court’s view, the local court’s refusal to allow additional time could not have had any effect on the legality and accuracy of the judgment.

On 9 July 2003 the applicant lodged an “application for the protection of legality” with the Supreme Court. He complained about not being given time to prepare his defence against the modified indictment. He argued in this connection that the criminal offences in question were different and required different defence strategies, as corroborated by the legal literature and the domestic courts’ case-law. He again disputed the assessment of the evidence by the lower courts.

The Supreme Public Prosecutor submitted in reply to the application that the applicant had not needed time to prepare a defence as the new charges were milder.

On 25 November 2004 the Supreme Court rejected the application, finding that paragraph 2 of section 344 of the Criminal Procedure Act did not oblige the court to discontinue the proceedings following the prosecution’s changes to the indictment. It further noted that the applicant had been accused from the outset of endangering K.V. by threatening her with a knife and that the narrowing of the indictment could not have come as a surprise. Consequently, the applicant’s defence rights were not violated in the proceedings. As regards the remainder of the application, the Supreme Court found that it concerned the facts of the case, which it had no competence to reassess.

Subsequently, the applicant lodged a constitutional appeal, in which he complained that his defence rights had been violated on account of the modification of the indictment, which he had been unable to defend himself against. In addition, he complained that the lower courts had been biased, that they had wrongly assessed the evidence, that his statements given at the pre-trial stage had been excluded only before the pronouncement of the judgement and that the remedies he had used against the first-instance judgment were ineffective.

On 19 April 2007 the Constitutional Court rejected his appeal. As regards the alleged bias of the courts and the exclusion of his pre-trial statements, the Constitutional Court found that the applicant had not pursued these complaints in his previous appeals. It further found that the Supreme Court had properly assessed whether the changes to the indictment should have been allowed and, in particular, whether the hearing should have been discontinued in order to respect the applicant’s rights of defence. The Constitutional Court noted that the modification of the indictment had merely narrowed down the charges and found that the applicant’s defence rights had therefore not been violated. The Constitutional Court rejected the remainder of the constitutional appeal as manifestly-ill-founded. The decision was served on the applicant on 23 April 2007.

B.  Relevant domestic law

The relevant provisions of the Criminal Code (Official Gazette no. 63/94) read as follows:

Article 145 (endangering a person’s safety)

“(1)  Whoever endangers a person’s safety with a serious threat to his or her life or body, shall be punished with a fine or imprisonment of no more than a year.

(2)  Prosecution may be pursued at the victim’s request.”

Article 299 (violent behaviour)

“(1)  Whoever seriously insults, badly treats, acts violently against or endangers the safety of a person and by doing so upsets or frightens the public, shall be punished with imprisonment of no more than two years.

...”

Section 344 of the Criminal Procedure Act (Official Gazette no. 63/94) provides, as far as relevant:

Section 344

“(1)  If the prosecutor finds in the course of the main hearing that the evidence indicates that the factual situation as described in the indictment has changed, he may modify [the indictment] orally during the trial and may also make a motion for adjournment of the main hearing in order to prepare a new indictment.

(2)  In such circumstances, the court may adjourn the trial to allow for the preparation of a defence.

...”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the court did not allow him time to prepare his defence in response to the changes to the indictment which the prosecution made at the final hearing. He also disagrees with the outcome of the proceedings and complains that his conviction was based on unreliable and untrue statements by the alleged victim. The applicant further complains that the court had access to the records concerning his statements given at the pre-trial stage and excluded them only before the pronouncement of the judgement. Finally, he complains that the remedies he used against the first-instance judgment were ineffective (in substance, Article 13).

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him in accordance with Article 6 § 1 of the Convention? In particular, having regard to the changes to the indictment made at the final hearing before the local court, was there a violation of the applicant’s rights enshrined in Article 6 §§ 1 and 3 (a) and (b) of the Convention?

The Government are requested to submit copies of all documents in the case file concerning the criminal proceedings against the applicant.