RASTODER v. SLOVENIA - 50142/13 (Judgment : No violation of Right to a fair trial (Criminal proceedings - Fair hearing) [2017] ECHR 1067 (28 November 2017)

In the case of Rastoder v. Slovenia,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          Egidijus Kūris,
          Iulia Motoc,
          Carlo Ranzoni,
          Péter Paczolay, judges,
          Aleš Galič, ad hoc judge,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 50142/13) 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”) by a Slovenian national, Mr Smako Rastoder (“the applicant”).

2. The applicant was represented before the Court by Odvetniška družba Čeferin, a law firm practising in Grosuplje. The Slovenian Government (“the Government”) were represented by their Agent, Mrs N. Pintar Gosenca, State Attorney.

3. The applicant alleged that his right to a fair trial had been violated because he had not been able to cross-examine two witnesses who had given evidence for the prosecution.

4. On 8 April 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. Mr Marko Bošnjak, the judge elected in respect of Slovenia, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fourth Section decided to appoint Mr Aleš Galič to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1950 and is detained in Dob pri Mirni.

7. On 18 March 2006 a person called A.Č. called the police and informed them that three people had been stabbed in the town of Izola. Only the injured people, namely Š.A., S.M, and F.M, were found at the place of the incident. A few hours later the applicant and his two sons, A.R. and E.R., were arrested on suspicion of attempted murder.

A. Investigation

1. The statements from the accused

8. On 20 March 2006 the applicant, A.R. and E.R. were brought before the investigating judge. The applicant, who was assisted by counsel, gave the following statement in his defence. He alleged that he had intended to meet Š.A. in order to demand that he pay rent for workers who had previously been accommodated in his flat and to cancel their residence registration at that address. Before he set off to a bar where Š.A.’s workers met after work (hereinafter “the bar”), he telephoned his sons and asked them to come and assist him in case he met any trouble from Š.A. After Š.A. refused to resolve the matter, the applicant left the bar and was followed by between ten and twelve of Š.A.’s workers. Š.A. and F.M., one of the workers, started hitting the applicant all over his body. His sons, standing nearby, came to his aid. After Š.A. hit A.R., the applicant, an electrical fitter by profession, took out the knife he used for work, which had a seven- to eight-centimetre blade, and began brandishing it. Among others, he stabbed Š.A. several times in the back. Š.A. then backed off and the applicant and his sons fled the scene. Once at home the applicant gave the knife to his wife, who disposed of it. The applicant also stated that the only injuries he had sustained had been some bruises on his head.

9. The applicant’s sons stated that their father had met with Š.A. and another person and that a fight had started. When they had gone to help him, a number of other men had approached and had started beating them. The applicant’s sons also stated that they had not been carrying any knives themselves. According to them, E.R. had defended himself with a wooden clothes hanger.

2. Questioning of the injured parties during the investigation

10. The injured parties, S.M., F.M., and Š.A., were also questioned in the investigation and they stated, inter alia, as follows.

11. F.M. stated that after leaving the bar he had been attacked by the applicant, who had hit him on the nose with the handle of the knife. S.M. and Š.A. had arrived after that and the applicant had again attacked F.M. E.R. had attacked S.M. while A.R. had attacked Š.A. In the course of the fight the applicant had stabbed F.M. and had also attacked S.M. and Š.A., before fleeing the scene. The applicant and his sons had had knives. The applicant’s knife had had a ten-centimetre blade.

12. S.M. stated that he had heard people saying there was a crowd outside the bar, he had gone out and found F.M. being hit in the face and running. He had then seen the applicant attacking F.M. He had attempted to separate them, but E.R. had stabbed him. E.R. had then fled and the applicant had stabbed him several times, which had caused him to faint.

13. Š.A. testified that after being told that something was going on outside the bar he had gone out and found S.M. and F.M. being attacked. He had attempted to help S.M., who had been stabbed in the neck by the applicant, and F.M. He had been stabbed in the back several times by the applicant.

3. Questioning of the witnesses during the investigation

14. In addition to the accused and the injured parties the investigating judge questioned five witnesses - A.Č., M.H., Đ.Š., Še.A. and I.B.

15. A.Č. testified that he had noticed the applicant and his sons, together with F.M. and another person, standing a few metres from the bar. Š.A. had approached them and a few seconds later they had started to fight. According to A.Č., only those six people had been involved in the fight. He had not seen any weapons, but had seen blood on Š.A.’s shirt. In addition, the third victim (S.M.) had been holding his neck. A.Č. also stated that he had called to his acquaintance M.H. to telephone the police.

16. M.H. gave a fairly detailed account. He explained that he had seen the applicant in the bar arguing with Š.A. and then leaving around thirty minutes before the fight. Twenty minutes later F.M. and S.M. had left the bar as well. Š.A. had received a call and had gone out. After being alerted by A.Č. and seeing the fight through the window, he had gone out of the bar and had seen the applicant and his sons, as well as S.M., F.M., and Š.A., fighting. He testified that the applicant and his sons had been the weaker parties in the fight until the applicant had pulled out a knife, saying, “Now let us see”, and using it to attack Š.A., F.M. and S.M. He added that he had not seen the applicant’s sons handling any knives and also described the applicant’s knife as having a blade of about eight to ten centimetres.

17. Đ.Š., the third witness, stated that between 6 p.m. and 7 p.m. on the day in question he had first seen the applicant and later his sons park their cars in front of the bar where the events at issue took place. Đ.Š. and his friend had then approached the bar and had seen S.M. lying unconscious on the ground.

18. On 10 April 2006 the investigating judge questioned I.B. and Še.A. in the presence of the district public prosecutor and counsel for A.R., who were also allowed to put questions. I.B. told the investigating judge that he had been walking home with Še.A. when he had seen the applicant, his sons, and F.M. coming out of the bar. The applicant had had his hand in his pocket and appeared to be holding something. He had seen him pointing at F.M. and heard him telling his sons, “This is [F.M.]”. He had later seen his brother-in-law (S.M.) lying on the ground with blood on his head. The police and an ambulance had arrived.

19. Še.A. stated that he and I.B. had been on their way home when F.M. had come out of the bar and told them to wait. Še.A. had then noticed the applicant and his sons. He had seen the applicant pointing at F.M. and saying something, whereupon the applicant had gone towards F.M. and hit him in the face with the handle of his knife. As F.M. had moved away, towards the bar, one of the applicant’s sons had approached. Both S.M. and Š.A. had come out of the bar at that moment and a fight had broken out between E.R., S.M., and the applicant and F.M., A.R. and Š.A. Še.A. had approached the fighting men and tried to separate E.R. and S.M. E.R. had then struck S.M. with a knife, but when Še.A. had approached, he had turned to him. Še.A. had got scared and had run away. Še.A. described the knife as being old, with a blade of between ten to fifteen centimetres, but could not remember further details. Še.A. stated during the questioning that his work visa was valid until January 2007.

B. Summoning of I.B. and Še.A.

20. In May 2008 the court summoned the witnesses, including I.B. and Še.A., to a hearing that had been scheduled for 11 September 2008. The summons for I.B. was served on his neighbour while Še.A.’s was served on his wife. The court subsequently cancelled the hearing and ordered that the witnesses, including I.B. and Še.A., be summoned to a hearing on 25 September 2008. However, since I.B. and Še.A. no longer had a place of residence that was registered in Slovenia, the court on 21 November 2008 asked the Police Department for International Cooperation to investigate where the two witnesses were living. Further to another request from the court, the Izola Administrative Unit informed it that Še.A. had cancelled his residence status in Izola on 17 January 2008 and that I.B. had cancelled his on 20 December 2006. It appears that the police registered their enquiries about the whereabouts of I.B. and Še.A. in the Schengen system.

21. After receiving information from the authorities of the former Yugoslav Republic of Macedonia, the Slovenian police informed the court on 23 January 2009 of I.B.’s address, whence the court subsequently sent the summons. On 20 March 2009 the Court received a statement from I.B., given to a notary, in which he excused himself from attending the hearing, saying that he needed a visa to enter Slovenia. However, in order to comply with the summons, he included his testimony, which he had given to the notary. He stated that he did not remember exactly when the incident in question had happened but thought it was around two years earlier, when he had had a temporary job as a construction worker in Slovenia. He had at that time been in the process of moving from the applicant’s apartment to Š.A.’s apartment. As to the incident, he said that he remembered seeing S.M. lying on the ground and the police and ambulance arriving at the scene.

22. In April 2009, further to indications from the authorities of the former Yugoslav Republic of Macedonia and the injured parties’ counsel that Še.A. was in Italy, the Italian authorities checked their data, but stated that Še.A. had never had any registered address in that country. On 18 May 2009 the Office of the General Police Administration informed the court that the border police had talked to Še.A. when he had crossed the Slovenian border. He had given an address in the former Yugoslav Republic of Macedonia and Italy and his mobile telephone number.

23. After his wife received the summons at his address in the former Yugoslav Republic of Macedonia, Še.A. wrote to the court to say that his father was very ill and that therefore he could not travel for the following two to three weeks. In addition, he said that he had been working in Italy since September 2008 and could not travel to Slovenia as he would risk losing his job. He added that he had already given a statement regarding the charges against the applicant and the other defendants and had nothing to add. The court received the letter on 25 May 2009.

C. Trial

24. On 16 May 2006 the district state prosecutor lodged an indictment against the applicant, E.R. and A.R. for the attempted murder of Š.A., S.M. and F.M.

25. Seven hearings were held, taking place on 25 September 2008, 27 November 2008, 29 January 2009, 19 February 2009, 10 April 2009, 29 May 2009 and 17 June 2009.

26. At the hearing of 29 May 2009, at which the applicant and his counsel were present, the court noted that Še.A. had sent a letter in reply to the summons (see paragraph 23 above). After the letter had been read out, the panel of judges took a decision that his and I.B.’s statements to the investigating judge should be read out at the hearing, finding that the conditions set out in point 1 of the first paragraph of section 340 of the Criminal Procedure Act had been met (see paragraph 39 below). The record of the hearing shows that no comments on the reading out of the statements were made by those present.

27. The accused, the injured parties and the witnesses A.Č., M.H. and Đ.Š. were examined at the hearings.

- The applicant kept to the statement he had given to the investigating judge and repeated that he had acted in self-defence. He now alleged that the blade of the knife had been only three centimetres long.

- A.R. maintained that he had gone to help his father but the workers had started to beat him as well. Š.A. had been on top of him, hitting him until he had managed to escape. A.R. also stated that he had had no plans to meet his brother in Izola that day.

- E.R. stated that he had only wanted to have a coffee with a friend but had ended up in a fight, and having to defend himself until he had passed out. He denied that he had had a knife that day and said that he had not seen his brother or father carrying one either.

- S.M. repeated what he had said during the investigation (see paragraph 12 above), adding some details about which of the three accused had stabbed him and where, attributing most of the injuries to the applicant. He explained that he had assumed that F.M. had been hit in the face as he had seen him holding his hand there and added that the applicant’s knife blade had been ten to fifteen centimetres long.

- F.M. added further details to his statement from the investigation (see paragraph 11 above), testifying how he had been stabbed by the applicant and that he had seen the applicant stabbing S.M. and Š.A. before fleeing the scene.

- Š.A. described how he had been stabbed by the applicant and his sons. He also testified that before arriving on the scene he had received a brief telephone call from Še.A., who had told him that the men had been attacked outside. When he had gone outside he had seen S.M. on his knees and the applicant stabbing him. Š.A. denied that the applicant or his sons had called him that day. He was asked to explain the difference between his testimony during the investigation, when he said he had fought with one of the applicant’s sons, and at the hearing, when he had said that he had not fought back. He stated that he had remembered the events better during the investigation.

- A.Č. repeated what he had said during the investigation (see paragraph 15 above).

- At his first examination M.H. repeated what he had said during the investigation (see paragraph 16 above). Six months later, he changed his statement and alleged, among other things, that the fight had started after Š.A. had first hit A.R.

- Đ.Š. stated that he had seen E.R. parking his car and going directly into the bar. He had arrived at the scene with his friends and had found S.M. lying unconscious on the floor.

28. The panel also questioned Dr G.R., the surgeon who had treated all three victims at the local hospital and who explained the severity of the individual wounds sustained by the victims. The court also obtained the testimony of two medical experts. Dr A.Š. made an assessment of the victims’ individual injuries, the most likely manner in which they had been sustained, the angles of the stab wounds, and so forth. The doctor stated that Š.A. had sustained four wounds to his back and a number of wounds to his chest. S.M. had been stabbed seven times from behind, five times in the neck and on the back of the head, once to the left shoulder and once in the left side of his chest. F.M. had been stabbed in the stomach. Dr D.M.S. performed a clinical examination of Š.A. in order to assess his wounds in more detail.

29. The panel also examined several documents that had been called in evidence. Medical reports relating to the applicant and his sons showed that they had sustained minor injuries, the applicant notably sustaining only a few contusions (on the right forearm, above the left scapula and on his left eye, which remained undamaged). Other evidence showed that the applicant had been in a dispute over workers hired by Š.A. who had vacated the applicant’s flat. Š.A. had not made a declaration of a change of residence to the competent administrative authority, although as an employer and new landlord he should have done so. Furthermore, telephone records showed that the applicant and Š.A. had had three conversations on the day of the incident. Moreover, A.R., the applicant’s son, had called his father a number of times that day just before the fight broke out.

D. Koper District Court’s judgment

30. On 19 June 2009 the Koper District Court panel found the applicant guilty of attempting to murder S.M., F.M. and Š.A. by stabbing the first in the neck, on the back of the head and the left side of his chest, the second in the left side of the stomach and the third in the back. Two of the offences had been aided and abetted by the applicant’s sons, who were each convicted of one count of attempted murder. The court sentenced the applicant to five years and ten months in prison, while his sons were both sentenced to one year and two months in prison.

31. In a judgment of fifty-four pages, the court established on the basis of the testimony, telephone and GPS data that the applicant had called Š.A. on the day of the attack in order to discuss the workers’ change of residence, but they had been unable to resolve the matter. Consequently, the applicant had gone to the bar with a view to get the workers to sign written statements concerning their change of residence. He had asked F.M., who had been in the bar with S.M., to sign the statement, but he had refused. After that the applicant had again called Š.A., but to no avail. Being informed of the situation by the applicant, A.R. and E.R. had joined him and they had together gone in search of F.M. and Š.A. They had stopped F.M. near the bar and the applicant had hit him in the face with the handle of the knife. F.M. had withdrawn in the direction of the bar, and had been joined by S.M. and Š.A., who had been informed about the attack by the telephone call from Še.A. A fight involving the six men had then started, with the accused being prepared for it as they had been equipped with knives. It had finished when the applicant and his sons had left the scene and Š.A. had called the police.

32. The court found that only five minutes had passed between F.M. being stopped by the applicant and his sons and the call to the police, while the fight and stabbing could not have lasted more than two minutes. In particular, the court established that Š.A. had received the call from Še.A. at two minutes and forty eight second past eight in the evening and that less than three minutes later Š.A. had called 113. In the meantime, he had been stabbed several times. As regards the other circumstances of the fight, such as who had hit whom, the court relied on the testimony of S.M., F.M., and the witnesses A.Č. and M.H. The court, taking into account the fact that the injured parties could not have been expected to pay particular attention to what was happening to others while they themselves were engaged in the fight, found their testimony mostly consistent, except for the question of when Š.A. had joined the fight. The court took the view on that point that the fight had only broken out after Š.A.’s arrival, contrary to what he himself had alleged. The court further found M.H.’s initial testimony (see paragraph 16 above) to be the more persuasive of the two, and that it was in line with the findings of the medical experts. It found that E.R. had initially fought with S.M., the applicant with F.M., and A.R. with Š.A. - a fact which the court found confirmed by the testimony of “S.M., F.M., and also the witnesses A.Č. and M.H., and Še.A.” Referring to M.H.’s initial testimony and the applicant’s statement during the investigation, which it found was also supported by Še.A.’s testimony, the court rejected the applicant’s statement at the hearing that his knife had only had a three-centimetre blade.

33. Regarding the applicant’s argument that he had acted in self-defence, the court found that “the statements given by the accused were contradictory and refuted self-defence ... [and] the evidence produced at the hearing completely excluded that possibility [of self-defence]”. The Court found that only the defendants and the three injured parties had engaged in the fight and that if Š.A. had wanted to attack the applicant he could easily have outnumbered the defendants. The applicant and his sons had been motivated by anger towards Š.A. and F.M., while S.M. had become involved because he had tried to protect F.M. As the applicant had failed to convince F.M. to cancel his residence status, he had resorted to violence. If the applicant had felt that he was in danger, he could simply have walked away. Instead, he had provoked a fight, together with his sons. The court also found that while the applicant had admitted to stabbing Š.A. several times in the back, he and the other two defendants had not addressed the fact that the injured parties had sustained other stab wounds too. Moreover, the court noted that none of the witnesses had testified that the applicant had lain on the floor and been kicked by the other men. The court found that since the defendants had been prepared for a fight in advance the injured parties should be believed when they stated that they had in fact been attacked and that they had responded by fighting back. It considered the injured parties’ description of how they had obtained the wounds to be persuasive. Having regard to the fact that the fight was of short duration, the court found that the defendants had pulled their knives out quickly and had quickly “finished with” the injured parties. The court further found that as the victims had sustained fourteen stab wounds altogether, it was plausible that the applicant had not been the only assailant, but that all three defendants had inflicted them. Finally, the court dismissed the applicant’s argument that he had pulled the knife out after being attacked by ten people as “unrealistic”.

34. In the judgment the court also explained the reasons for reading out I.B. and Še.A.’s statements. It noted that the two witnesses had not attended the hearing, despite being properly summoned, and that counsel for the defendants had been offered the possibility to attend their questioning during the investigation.

E. Appeals

35. The applicant appealed to the Koper Higher Court, complaining, inter alia, that the first-instance court had violated his defence rights by relying on the record of the testimony that I.B. and Še.A. had given during the investigation.

36. On 7 July 2011 the higher court dismissed the applicant’s appeal. As regards the applicant’s alleged inability to cross-examine I.B. and Še.A. at the trial, the higher court considered that the applicant had had an opportunity to question the witnesses during the investigation. It noted that counsel for the applicant had been informed about the hearing with the investigating judge, as confirmed by an acknowledgment of receipt, but had failed to attend it. According to the higher court, the defence had been aware of the notice of the possibility to participate in the questioning of witnesses during the investigation but had consciously disregarded it. Hence, it had accepted the risk that the witnesses would not be available for questioning at the trial. Moreover, the higher court considered that the applicant had failed to comply with paragraph 2 of section 371 of the Criminal Procedure Act (see paragraph 39 below) as he had not substantiated in what way his inability to question the two witnesses at the trial had undermined the legality of the judgment.

37. The applicant lodged an appeal on points of law, which was dismissed by the Supreme Court on 24 August 2012. The court confirmed that the first-instance court had correctly applied section 340 of the Criminal Procedure Act by reading out the testimony given by I.B. and Še.A. during the investigation as the witnesses, who were foreigners, had been duly summoned to appear before the court but had refused to attend. The Supreme Court further found that section 178(4) of the Criminal Procedure Act provided that the investigating judge should have sent the request to attend the questioning directly to the defendants as well as to counsel. However, according to the Supreme Court, the applicant had failed to explain how that error on the part of the investigating judge had affected the legality of the impugned judgment. In the Supreme Court’s opinion, the error could only have affected the legality of the judgment if the first-instance court had relied on the testimony of I.B. and Še.A. to a decisive extent, which, however, had not been alleged in the case.

38. The applicant lodged a constitutional complaint. The Constitutional Court dismissed the complaint on 24 December 2012, pursuant to section 55b of the Constitutional Court Act (see paragraph 40 below).

II. RELEVANT DOMESTIC, INTERNATIONAL AND EUROPEAN UNION LAW

A. Criminal Procedure Act

39. The relevant provisions of the Criminal Procedure Act (Official Gazette no. 63/94 with the relevant amendments) read as follows:

Section 75

“(1) Counsel is entitled to do everything in a defendant’s interests that the defendant himself can do.

...”

Section 178

“...

(4) The public prosecutor, defendant and counsel can be present during the questioning of a witness. ...

(5) The investigating judge should inform the public prosecutor and counsel in an appropriate manner of when and where a defendant will be questioned. Likewise, he must in an appropriate manner inform the public prosecutor, the defendant, counsel and the injured party of when and where other investigative measures at which they can be present will take place, unless it would be dangerous to wait. If the defendant has counsel, the investigating judge in principle informs only him. If the defendant has been detained and the investigative measures are to be carried out outside the area of the court’s jurisdiction, the investigating judge must decide whether the presence of the defendant is necessary.

...”

Section 244a

“(1) Under the provisions of this section, questioning the defendant or a witness can be carried out by means of modern technical equipment for voice and image transmission (video-conferencing).

(2) Questioning the defendant or a witness can be carried out by means of video-conferencing if:

...

(iii) the competent authority has made a proper request to another country in accordance with the law or international treaties or

(iv) for any other justified reason which makes it undesirable or impossible for the person to appear before the authority conducting the hearing.

...”

Section 340

“(1) In addition to the instances specified in the present Act, the record of witnesses’ statements ... can be read out, on the basis of a decision by a panel and only in the following circumstances:

(i) if the persons questioned have died, or have been affected by a mental illness, or cannot be found, or are unable to appear in court because of old age, illness or some other weighty reason, or their appearance would involve great difficulty, or if they live abroad and fail to appear at the main hearing despite being duly summoned;

(ii) if witnesses or experts refuse to testify at the main hearing without a legal justification.

...

(4) The reasons for reading out the record shall be indicated in the transcript of the main hearing ...”

Section 342

“After examining each witness or expert, and after reading each record or other written document, the presiding judge shall ask the parties and the injured person to make comments if they so wish.”

Section 371

“(1) A substantial violation of the provisions of criminal procedure shall be deemed to exist:

...

(viii) if the judgment relies on evidence which was obtained by a violation of human rights and fundamental freedoms guaranteed by the Constitution, or evidence it should not have relied on, in accordance with the provisions of the present Act, or evidence which was obtained on the basis of such impermissible evidence;

...

(2) A substantial violation of the provisions of criminal procedure shall also be deemed to exist if in preparation for a hearing or in the course of a hearing or in giving judgment the court omitted to apply a provision of this Act or applied it incorrectly, or if in the course of the hearing the court violated the rights of the defence, which influenced or might have influenced the legality and regularity of the judgment.”

B. Constitutional Court Act

40. Section 55b, paragraph 2, of the Constitutional Court Act (Official Gazette no. 15/94 with relevant amendments) provides as follows:

“(2) A constitutional complaint shall be accepted for consideration:

- if there has been a violation of human rights or fundamental freedoms which has had serious consequences for the complainant;

- if it concerns an important constitutional question which exceeds the importance of the particular case in question.”

C. International legal assistance

41. On 26 June 1997 the Slovenian Parliament ratified the “Treaty between Slovenia and the Republic of Macedonia concerning Legal Aid in Civil and Criminal Matters”, which entered into force on 5 September 1997. Article 3 of the Treaty states that legal assistance comprises, among other things, the service of legal documents and the questioning of witnesses. Article 32 provides that participants in criminal proceedings and counsel can be present when an act of legal assistance is carried out in the requested state.

42. The 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters entered into force with respect to the Former Yugoslav Republic of Macedonia on 26 October 1999 and with respect to Slovenia on 17 October 2001. It provides in Articles 8 and 10, respectively, as follows:

Article 8

“A witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the requesting Party and is there again duly summoned.”

Article 10

“1 If the requesting Party considers the personal appearance of a witness or expert before its judicial authorities especially necessary, it shall so mention in its request for service of the summons and the requested Party shall invite the witness or expert to appear.

The requested Party shall inform the requesting Party of the reply of the witness or expert.

...”

43. The Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters was adopted on 8 November 2001. It entered into force with respect to the Former Yugoslav Republic of Macedonia on 1 April 2009. However with respect to Slovenia it entered into force only on 1 July 2013, which is after the proceedings in the applicant’s case had been concluded. Article 9 regulates hearings by video-conference.

44. On 29 May 2000 the Council of the European Union adopted the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000/C 197/01), which aims at facilitating mutual judicial assistance between the authorities of the Member States. It supplements the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters. Article 10 regulates hearings by video-conference. It sets out that such hearing can be requested if a person is in one Member State’s territory and has to be heard as a witness or expert by the judicial authorities of another Member State and it is not desirable or possible for the person to be heard to appear on its territory in person.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

45. The applicant complained that he had been unable to question two prosecution witnesses on whose testimony the first-instance court had relied in its judgment, in breach of Article 6 of the Convention, which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

A. Admissibility

46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

47. The applicant argued that the trial court had not taken all reasonable measures to ensure the attendance of I.B. and Še.A. at the hearing. Firstly, the trial court could have used the international legal assistance available under the “Treaty between Slovenia and the Republic of Macedonia concerning Legal Aid in Civil and Criminal Matters” to request that I.B. and Še.A. be questioned by a court of the former Yugoslav Republic of Macedonia with the participation of the applicant and counsel (see paragraph 41 above). Secondly, the Slovenian judge, the defendants and counsel could have travelled to the relevant country to examine the two witnesses. Thirdly, under section 244a of the Criminal Procedure Act (see paragraph 39 above), the witnesses could have been questioned by video-conference. Moreover, the trial court could have requested assistance from the Former Yugoslav Republic of Macedonia under the European Convention on Mutual assistance in Criminal Matters and, in particular, Article 9 of the Second Additional Protocol to that Convention (see paragraphs 42 and 43 above). With respect to Italy, the Slovenian authorities could have relied on Article 10 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (see paragraph 44 above). The applicant further argued that if any of those measures had been used then the length of the proceedings would not have become unreasonable and the criminal offence would not have become time-barred.

48. The applicant acknowledged that there had been no obstacle to counsel informing him about the questioning of the witnesses during the investigation or requesting that I.B. and Še.A. be questioned again in the presence of the accused during the investigation. However, the fact that he had waived his right to examine the two witnesses in the pre-trial proceedings should not have precluded him from cross-examining them at the hearing. In the applicant’s view, the crucial question was whether the trial court had made all reasonable efforts to ensure that the two witnesses, whose whereabouts had been known, would attend the hearing and not whether the applicant could have cross-examined them earlier in the proceedings. In his opinion, the present case differed substantially from Gani v. Spain (no. 61800/08, 19 February 2013) and Kostecki v. Poland (no. 14932/09, 4 June 2013). Finally, the applicant argued that Še.A. and I.B.’s statements had been decisive for his conviction.

49. The Government pointed out that the applicant had had the opportunity to question I.B. and Še.A. during the investigation. Counsel for the applicant had been duly informed about the questioning and had never alleged during the proceedings that there had been any obstacles to his or the applicant’s attending that questioning. The applicant or counsel should have been aware of the fact that Še.A. and I.B., being foreign nationals and having only work visas, might not be available for questioning later. In particular, Še.A. had explicitly stated during his questioning, of which there were records in the file, that his work visa had only been valid until January 2007 (see paragraph 19 above). Nevertheless, the applicant had made no request during the investigation for a repeat questioning of Še.A. while he or counsel was present.

50. The Government, responding to the Supreme Court’s view (see paragraph 37 above), argued that the judge had acted in accordance with section 178 of the Criminal Procedure Act (see paragraph 39 above) when he had only informed the applicant’s lawyer about the upcoming witness questioning. The provision in question made a distinction between unrepresented defendants and represented defendants and only the former had to be personally informed about the questioning of witnesses. In any event, counsel had been empowered and obliged to inform his client and to advise him to participate at the questioning of I.B. and Še.A. They further noted that the applicant’s lawyer had not attended any witness questioning sessions during the investigation.

51. In addition, the Government argued that the Slovenian authorities had had no way of ensuring the presence of the two witnesses at the hearing. In particular, they had had no legal basis to request a visa in the absence of an application by I.B. and they had not been able to use any mechanism to forcibly take the witnesses to the hearing in Slovenia. Furthermore, such an option would have significantly delayed the proceedings.

52. In support of their argument, the Government relied on the Court’s findings in Gani and Kostecki (both cited above), and Unterpertinger v. Austria (24 November 1986, Series A no. 110). They argued further that the present case was different from Mild and Virtanen v. Finland (nos. 39481/98 and 40227/98, 26 July 2005) as the witnesses had been under foreign jurisdiction and had been served with the summons successfully, but had explicitly refused to attend the hearing.

53. The Government responded to the argument on the evidentiary value of the two witness statements by saying that the court had in no way relied on I.B.’s testimony. As regards Še.A., the testimony had only been incriminating to the extent that he had stated that he had seen the applicant hitting F.M. with the handle of the knife. However, the court had gathered a large body of evidence by questioning the injured parties and witnesses and engaging two medical experts. M.H., F.M., and even the applicant himself, had confirmed that he had had a knife. The fact of the applicant hitting F.M. had also been confirmed by F.M. and supported by S.M.’s testimony that he had seen F.M. holding his face where he had been hit. Medical records had also confirmed the blow to F.M.’s face, although that in any event had not been decisive for the legal classification of the offence. To sum up, none of the courts’ findings had relied extensively or decisively for support on the evidence given by I.B. and Še.A.

2. The Court’s assessment

(a) General principles

54. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015 and Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010-VI, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011-VI). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016, with further references therein).

55. In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119-147, the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:

(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;

(ii) typical reasons for non-attendance are, like in the case of Al-Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;

(iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;

(iv) the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;

(v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;

(vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;

(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;

(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.

56. Those principles have been further clarified in Schatschaschwili v. Germany, cited above, §§ 111-131, in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton, cited above, §§ 58 and 59).

(b) Application of these principles to the present case

(i) Whether there was a good reason for the non-attendance of the witnesses at trial

57. The Court has generally adopted a robust approach in determining whether a domestic court had good factual or legal grounds not to secure a witness’s attendance at trial. For example, it has held that the fact that a witness is absent from the country where the proceedings are conducted is in itself not sufficient to satisfy the requirements of Article 6 § 3 (d), which requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him. Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012).

58. The justification relied on by the trial court in the present case for the non-attendance of two witnesses who were abroad, I.B. and Še.A., was their refusal to travel to Slovenia due to practical difficulties. I.B. stated that he had no Slovenian visa while Še.A. submitted that he could not travel owing to his father’s illness and his job in Italy (see paragraphs 21 to 23 above). In admitting their statements from the pre-trial proceedings as evidence, the trial court relied on section 340(1) of the Criminal Procedure Act, in the part that provides that witness statements can be read out if they live abroad and have failed to appear at the main hearing despite being duly summoned (see paragraphs 26, 34, 37 and 39 above). Though that provision seems to constitute a proper legal basis for the admission of I.B. and Še.A.’s statements, the Court must observe that the witnesses, though reluctant, were not unable to attend the trial. On that point, the Court must agree with the applicant (see paragraphs 48 and 52 above) that the case does not give rise to exceptional circumstances comparable to those in Gani (cited above, § 45) and that, unlike in Kostecki (cited above, §§ 64-66), the authorities had managed to locate the witnesses. Indeed, they had gone to great lengths to establish the witnesses’ whereabouts and had been successful. However, once the witnesses declined to comply with the summons, the authorities launched no further initiatives to secure their participation at the hearing (see paragraphs 20 to 23 above). The Court notes that the practical difficulties raised by the two witnesses could possibly have been overcome, for instance, by the Slovenian authorities offering assistance to the two witnesses or calling on the international legal assistance provided for in the “Treaty between Slovenia and Republic of Macedonia concerning Legal Aid in Civil and Criminal Matters” (see paragraph 41 above). As regards Še.A. and Italy, it could have used the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (see paragraph 44 above). The Government did not provide a convincing explanation as to why the domestic authorities made no use of those possibilities. Furthermore, being aware of the difficulties in securing the right of the applicant to examine the witnesses in the present case, the Court considers that readily available modern technology, such as a video link, could have offered a solution for the questioning of witnesses abroad (see, mutatis mutandis, Zhukovskiy v. Ukraine, no. 31240/03, § 45, 3 March 2011).

59. The facts of the present case therefore seem to indicate the absence of a “good reason” in the sense of Al-Khawaja and Tahery (cited above) for the non-attendance of I.B. and Še.A. However, contrary to the applicant’s apparent suggestion (see paragraph 48 above), that is not the end of the matter. As pointed out in Schatschaswillli (see paragraph 56 above), that consideration is not of itself conclusive of a lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations.

(ii) Whether the evidence of the absent witnesses was “sole or decisive”

60. Moving on to the second stage of the test in Al-Khawaja and Tahery, although I.B.’s statement (see paragraph 18 above) was read out at the hearing (see paragraph 26 above), there is nothing in the case file to support a finding that it carried any weight in the applicant’s conviction. Še.A.’s statement (see paragraph 19 above), on the other hand, was relied on by the court with respect to two factual issues: first, the allegation that the applicant had initially attacked F.M., which however, was also supported by, inter alia, the testimony of S.M. and F.M. (see paragraphs 11, 12, 27 and 32 above), and, second, the allegation concerning the length of the blade. That, however, was supported also by, inter alia, the applicant’s own initial statement, M.H.’s testimony (see paragraphs 8, 16 and 32 above) and F.M.’s statement (see paragraph 11 above).

61. The Court notes further that the domestic court, referring to medical documents and expert opinions, electronic data and the accounts of witnesses other than Še.A., established that the applicant had had a motive to attack the victims, had been prepared for the fight as he had been armed and accompanied by his sons, who had likewise been armed, and had inflicted a number of serious injuries on the victims (see paragraphs 31-33 above). The applicant’s argument that he had acted in self-defence was dismissed without any reference to Še.A.’s testimony (see 33 paragraph above). The Court therefore considers that Še.A.’s pre-trial statement could not be described as “sole or decisive” for the applicant’s conviction.

62. The Court further finds it unnecessary to determine whether the evidence nevertheless carried significant weight because, even if it did, there existed sufficient factors counterbalancing any handicaps that its admission might have entailed for the defence, as explained below.

(iii) Whether there were sufficient “counterbalancing factors”

63. The Court observes that there were a number of counterbalancing factors capable of compensating for the fact that the applicant did not have the opportunity to cross-examine Še.A. directly at the trial. In particular, Še.A., and for that matter I.B., were examined at a prior stage of the proceedings by the investigating judge (see paragraphs 18 and 19 above). Even if the applicant was not personally asked to attend the questioning of the two witnesses (see paragraphs 37 and 50 above), his lawyer was. As the applicant has acknowledged, there was nothing preventing counsel from informing the applicant of that possibility (see paragraphs 34, 36 and 48 above). The applicant, who seems to be suggesting that he waived his right to question the two witnesses during the investigation (see paragraph 48 above), therefore unjustifiably missed an opportunity to test their truthfulness and reliability at the pre-trial stage (see Štefančič v. Slovenia, no. 18027/05, § 44, 25 October 2012, and Gani, cited above, § 48).

64. Furthermore, the applicant, who was aware that the court had had difficulties in securing the attendance of Še.A. and I.B., as that had been mentioned at the hearing of 29 May 2009 (see paragraph 26 above), could have requested that the trial court make use of measures such as video-conferencing or international legal assistance, but does not seem to have done so.

65. The applicant also had the opportunity at the hearing to comment on the reading out of Še.A. and I.B.’s statements or argue that little weight should be given to them owing to their non-attendance, on the basis of section 342 of the Criminal Procedure Act (see paragraphs 26 and 39 above). He could also have challenged the absent witnesses’ credibility at the hearing on any other grounds he might have considered relevant. He did neither of those things (see, mutatis mutandis, Šmajgl v. Slovenia, no. 29187/10, § 72, 4 October 2016, and Štefančič, cited above, § 46). For its part, the first-instance court thoroughly examined the defendants’ arguments, carefully compared the testimony of all the witnesses, injured parties and defendants, and analysed in detail the extensive body of evidence produced at trial. It referred to Še.A.’s untested statement in terms of the support it lent to other statements it had relied on but, as already pointed out, it did not rely on that statement alone to support any point of fact underpinning the applicant’s conviction (see paragraphs 32, 60 and 61 above).

(iv) Conclusion

66. Having regard to the fact that the domestic courts did not rely on I.B.’s pre-trial statement in their judgments and the existence of other, substantial, even decisive, incriminating evidence and of procedural safeguards capable of counterbalancing Še.A.’s absence at trial, it cannot be said that the criminal proceedings, looked at as a whole, were rendered unfair by the admission in evidence of I.B. and Še.A.’s pretrial statements.

67. Accordingly, the Court is satisfied that the admission in evidence of those statements did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ganna Yudkivska
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> RASTODER v. SLOVENIA - 50142/13 (Judgment : No violation of Right to a fair trial (Criminal proceedings - Fair hearing) [2017] ECHR 1067 (28 November 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1067.html Cite as: CE:ECHR:2017:1128JUD005014213, [2017] ECHR 1067, ECLI:CE:ECHR:2017:1128JUD005014213