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SUBINSKI v. SLOVENIA - 19611/04 [2007] ECHR 72 (18 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/72.html
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[2007] ECHR 72
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THIRD
SECTION
CASE OF ŠUBINSKI v. SLOVENIA
(Application
no. 19611/04)
JUDGMENT
STRASBOURG
18 January
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Šubinski v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr J. Hedigan, President,
Mr B.M.
Zupančič,
Mr C. Bîrsan,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 19611/04) 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 Goran Šubinski (“the
applicant”), on 7 May 2004.
The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney General.
The
applicant alleged that he had been denied medical aid in respect of
an injury to his finger (Article 3). He further complained that
had been deprived of a fair trial, that his defence rights had been
breached and that the length of the criminal proceedings instituted
against him was excessive (Article 6 §§ 1 and 3 (b) and
(d)). In addition, he alleged that the secrecy of the proceedings had
been breached (Article 8) and that he had been discriminated against
in the proceedings (Articles 14 and 6). In substance, he also
complained about the lack of an effective domestic remedy in respect
of the excessive length of the proceedings (Article 13).
On
15 February 2006 the
Court decided to communicate to the Government the complaints
concerning the length of both sets of proceedings and the lack of
remedies in that connection. Applying Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. The circumstances of
the case
The
applicant was born in 1971 and lives in Mirna.
The
application concerns two sets of criminal proceedings. In both sets
of proceedings, the hearings were closed to the public for the
purpose, among others, of protecting the rights of the alleged
victims and – as regards some of the hearings – the
private life of the applicant.
A. The first set of proceedings (K 107/2000)
On
13 March 1998 an official police report (uradni zaznamek) was
prepared concerning the applicant's attitude towards children he had
taught in a primary school. It contained a statement given by one of
the school teachers which had been obtained in accordance with
section 148/2 of the Criminal Procedure Act (Zakon o kazenskem
postopku – see paragraph 44 below). The teacher stated that
she had not noticed anything strange in the applicant's attitude
towards children. She also described an incident where the parents of
a boy who the applicant had allegedly abused had come to the school
to complain about the applicant's conduct and stated that the
applicant had resigned following this incident.
On
31 August 1998 the Murska Sobota District Public Prosecutor (OkroZno
drZavno toZilstvo v Murski Soboti) lodged a request for a
criminal investigation on the basis of reasonable suspicion that the
applicant had committed two criminal offences of sexual assault on a
minor under the age of 15 (spolni napad na osebo, mlajšo od
petnajst let). The request was based on findings from the
preliminary proceedings.
On
4 May 1999, after questioning the applicant, the investigating judge
of the Murska Sobota District Court (OkroZno sodišče
v Murski Soboti) decided to open a criminal investigation,
and that decision became final on 12 May 1999.
An
examination of witnesses scheduled for 25 May 1999 was adjourned at
the applicant's request.
On 3
June 1999, 9 December 1999 and 21 December 1999 the investigating
judge examined several witnesses, mostly for the prosecution.
On 4
and 18 April 2000 the court examined several defence witnesses.
On 21
April 2000 the applicant proposed a re-examination of certain
witnesses. The investigating judge, disagreeing with the proposal,
requested the interlocutory-proceedings chamber of three judges
(zunaj obravnavni senat) at the
Murska Sobota District Court to decide on the issue. On 9 June 2000
the chamber dismissed the proposal.
On
29 June 2000 the applicant was indicted for the criminal offence of
sexual abuse of a minor. The indictment became final on
17 August 2000.
On
30 January 2003 the Murska Sobota District Court held a hearing. The
applicant's lawyer requested that the alleged victim, who was a
minor, be examined as a witness. The minor was consequently examined
by the investigating judge on 13 March 2003.
The
next hearing was held on 8 April 2003. After the hearing, the
Murska Sobota District Court convicted the applicant and sentenced
him to two years' imprisonment. The written judgment was issued on
11 April 2003.
The
applicant appealed on 22 May 2003.
On 24
March 2004 the Maribor Higher Court (Višje
sodišče v Mariboru)
dismissed the appeal.
Consequently,
the first-instance court's judgment became final on 24 March
2004.
On
13 July 2004 the applicant lodged a request for the protection of
legality (zahteva za varstvo zakonitosti).
On
11 November 2004 the Supreme Court (Vrhovno sodišče)
rejected the request.
On
31 January 2005 the applicant lodged a constitutional appeal.
The
proceedings are pending before the Constitutional Court.
B. The second set of proceedings (K 127/2003)
17. On
14 April 2003 the applicant was arrested by the police.
On 16
April 2003 he was brought before the investigating judge at the
Murska Sobota District Court on suspicion of having committed another
criminal offence. On the same day the investigating judge remanded
him in custody.
On
17 April 2003 the public prosecutor applied for a criminal
investigation.
On
18 April 2003 the applicant appealed against his detention. On the
same day the interlocutory-proceedings chamber dismissed the appeal
as unfounded.
On
24 April 2003 the investigating judge examined the applicant and
opened a criminal investigation against him.
On
12 May 2003 the detention was prolonged for two months by the
interlocutory-proceedings chamber. An appeal by the applicant against
the prolongation was dismissed by the Maribor Higher Court on 19 May
2003.
On
15 May and 6 June 2003 the investigating judge examined witnesses.
On 19
May 2003 the investigating judge appointed two medical experts. The
experts submitted their opinions on 26 May and 23 June 2003
respectively.
On
9 July 2003 the public prosecutor indicted the applicant for the
criminal offences of sexual assault on a minor and of presenting and
manufacturing pornographic material concerning minors (prikazovanje
in izdelava pornografskega gradiva z zlorabo mladoletne osebe).
On
10 July 2003 the applicant's detention was prolonged by a decision of
the interlocutory-proceedings chamber. An appeal of 14 July 2003
was dismissed on 16 July 2003 and a request for the
protection of legality, lodged on 25 July 2003, was rejected by the
Supreme Court on 21 August 2003. It appears that the applicant's
detention was subsequently prolonged every two months, the last time
on 11 November 2004 (see paragraph 38 below). The applicant's appeals
against the prolongation of his detention were dismissed by the
second-instance court.
On
21 July 2003 the applicant appealed against the indictment. The
interlocutory-proceedings chamber dismissed the appeal on 23 July
2003.
On
23 September 2003 the court held a hearing.
The
hearing scheduled for 21 October 2003 was cancelled because the
applicant requested the withdrawal of the public prosecutor, all
members of the chamber (senat) and the president of the Murska
Sobota District Court. The requests were dismissed by the president
of the Murska Sobota District Public Prosecutor's Office and the
president of the Maribor Higher Court on 23 October 2003 and
5 November 2003 respectively.
The
hearing scheduled for 4 December 2003 was also cancelled since the
applicant requested the withdrawal of the president of the chamber
and the president of the court. On 12 December 2003 the requests were
dismissed by the president of the Maribor Higher Court.
The
hearing scheduled for 20 January 2004 was cancelled at the request of
the applicant's lawyer owing to her commitments in another –
unrelated – case.
The
hearing scheduled for 5 February 2004 was cancelled owing to a new
request for withdrawal based essentially on the same reasons as the
previous one. The request was rejected on 17 February 2004.
The
next hearing was scheduled for 16 March 2004. Before the hearing, the
court dismissed a new request for the withdrawal of judges, finding
that it was a delaying tactic. As more than three months had elapsed
since the last hearing, the court had to conduct the trial ab
initio with, in particular, a fresh examination of the applicant
and the reading of testimony. The applicant requested that the
witnesses and experts be examined again.
Before
the hearing on 1 April 2004, the applicant again filed a request for
the withdrawal of judges, but it was rejected. The applicant
requested that the alleged victim be examined again.
On 12
April 2004 the alleged victim was examined by the investigating
judge.
On
22 April 2004, before the scheduled hearing, at around 8 a.m., the
applicant injured his finger while opening the window of his cell. At
8.30 a.m. the officers took him to the court intending to ask the
judge whether he should be taken to see a doctor immediately or at
the end of the hearing. At the court, the applicant requested that
jurisdiction in the case be transferred to another court and the
hearing was consequently adjourned.
Subsequently,
on the same day at about 9.30 a.m., the officers offered to take the
applicant to see a doctor but he refused to go. At the applicant's
subsequent request, made at 1.30 p.m., he was taken to see the doctor
at 2 p.m. According to the letter sent by the prison authorities
to the Murska Sobota Police, the doctor did not consider the injury
to be serious.
On
19 May 2004 the Maribor Higher Court dismissed the request for
transfer of jurisdiction. On 3 June 2004 the applicant lodged a
request for the protection of legality against that decision. The
case file was thus sent to the Supreme Court and the first-instance
court cancelled the scheduled hearings. On 24 June 2004 the
Supreme Court rejected the request.
On
23 August 2004 the president of the chamber himself requested to
stand down from the proceedings. He expressed doubts as to his
ability to conduct the proceedings properly owing to the conduct of
the applicant and his lawyer.
On 26
August 2004 the case was referred to a new judge.
On
14 September 2004 a hearing was held. Before the hearing, the court
dismissed the request for the withdrawal of judges and the transfer
of jurisdiction, noting that the applicant had abused his procedural
rights.
On 13
October 2004 a hearing was held at which several witnesses and
experts were heard.
On 27
October 2004 another hearing was held and the following hearing was
scheduled for 11 November 2004.
On
10 November 2004 the applicant was taken to the hospital where it was
discovered that he had swallowed ten coins. However, the court
refused to cancel the scheduled hearing.
After
the hearing held on 11 November 2004 the court delivered a judgment
finding the applicant guilty and sentenced him to twelve years'
imprisonment, inclusive of the sentence imposed in the previous set
of proceedings (see paragraphs 7-16 above). The written judgment was
issued on 29 November 2004.
On
14 December 2004 the public prosecutor lodged an appeal.
On
16 December 2004 the applicant appealed and on 17 December 2004
the applicant's lawyer appealed.
On 17
March 2005 the Maribor Higher Court increased the sentence to
fourteen years' imprisonment. The judgment became final on that day.
On
8 July 2005 the applicant lodged a request for the protection of
legality with the Supreme Court.
On 20
April 2006 the court rejected the request.
On
16 June 2006 the applicant lodged a constitutional appeal.
The
proceedings are pending before the Constitutional Court.
II. RELEVANT domestic
law
42. In
Slovenia, criminal proceedings before district courts (okroZna
sodišča) are divided into three stages –
preliminary proceedings (predkazenski or predhodni
postopek), conducted by the police and the public
prosecutor; a criminal investigation (preiskava), conducted by
the investigating judge of a District Court; and the trial (glavna
obravnava), held before a mixed chamber (senat) of
professional and lay judges.
A
trial is preceded by a formal indictment, which normally follows a
criminal investigation (preiskava). Prior to that, however,
are the preliminary proceedings in which the police prepare a
criminal complaint (ovadba) and the public prosecutor then
lodges a request for a criminal investigation (zahteva za
preiskavo).
Section
148 of the Criminal Procedure Act (Zakon o kazenskem postopku,
Official Gazette no. 63/94, “the CPA”) reads, as far as
relevant:
“(1) If there are reasons to suspect that a
criminal offence liable to mandatory prosecution has been committed,
the police shall take the necessary steps to pursue the perpetrator,
ensuring that the perpetrator or his accomplice do not go into hiding
or abscond, discovering and securing traces of the offence or objects
of value as evidence, and collecting all information that may be
useful for the successful conduct of criminal proceedings.
(2) In order to fulfil the above duty the police may
seek information from citizens, inspect vehicles, passengers and
luggage, restrict movement within a specific area for a limited
period of time, carry out what is necessary to identify persons and
objects; send out a wanted notice concerning persons and objects;
inspect in the presence of the responsible person any facilities,
premises and documentation of enterprises or other legal entities,
and take other necessary measures. The findings of facts and
circumstances relevant to the criminal proceedings, as well as the
objects found or seized, shall be recorded in writing or an official
report shall be prepared in that connection.
(3) Police may summon individuals but must inform them
of the reasons. They may forcibly bring an individual who has failed
to appear after being summoned, if he has been alerted to that
possibility in the summons. In taking measures under this section,
police may not examine citizens as defendants, witnesses or experts.
...
(6) On the basis of the information collected the police
shall draw up a criminal complaint in which it shall set out the
evidence discovered in the process of gathering information... .”
In
principle, the request for an investigation is based on the
information gathered by the police in the preliminary proceedings
(see paragraph 44 above). However,
prior to the opening of an investigation, the investigating judge
can, if necessary, take individual investigative measures (section
166 of the CPA).
The
request for an investigation must include, inter alia, a
description of the alleged acts and their legal characterization, the
identification of the suspect and the evidence substantiating a
reasonable suspicion (utemeljeni sum) that the suspect has
committed the alleged acts. The public prosecutor can also propose
that a suspect be detained on remand. The relevant provisions of
section 168 of the CPA provide:
“(3) The request for investigation shall specify:
the person against whom an investigation is requested, the
description of the acts constituting a criminal offence, the
statutory designation of the criminal offence, the circumstances
establishing the reasonable suspicion, and evidence already
collected. The public prosecutor shall indicate in the request which
particular circumstances should be explored in the investigation and
which particular measures should be taken, and may propose that the
person against whom investigation is requested be detained.
(4) The public prosecutor shall send to the
investigating judge the report and all documents and records of the
measures taken. At the same time, he shall send to the investigating
judge any items to be adduced as evidence or shall notify him of
their whereabouts.
(5) If the public prosecutor withdraws a request for an
investigation before the decision on investigation is rendered, the
investigating judge shall decide that the request is dismissed and
inform the aggrieved party that he or she may take over the
prosecution (sections 60 and 62).”
There
is no provision in the CPA requiring the applicant to be notified at
this stage. A copy of the request for an investigation is normally
sent to the applicant later, together with a summons to appear before
the investigating judge (section 169/4 of the CPA).
The
public prosecutor's request for an investigation requires a decision
by the investigating judge. The investigating judge may comply with
the request and open a criminal investigation or, if he does not
agree with it, refer it to the interlocutory-proceedings chamber of
three judges (zunaj obravnavni senat)
for them to decide. Appeals may be lodged against the decision
dismissing or upholding the request (section 169 of the CPA).
After
the closure of the criminal investigation the public prosecutor
prefers a formal indictment or otherwise drops the charges (sections
184 and 268 of the CPA).
As
regards the guarantee of the right to a trial within a reasonable
time, the CPA, as far as relevant, provides (sections 15, 185 and 286
respectively):
“The court shall use its best endeavours to ensure
that the proceedings are conducted without unnecessary delay and that
any abuse of the rights of participants in the proceedings is
prevented.
(1) If the criminal investigation is not completed
within six months, the investigating judge shall inform the president
of the court of the reasons.
(2) The president of the court shall take the necessary
measures to complete the investigation.
(3) The presiding judge shall schedule the main hearing
within a maximum period of two months after an indictment has been
referred... Should he fail to schedule the main hearing within the
said period, he shall inform the president of the court of the
reasons for not doing so. The president of the court shall take the
necessary measures to schedule the main hearing.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been denied medical aid when he had
injured his finger on 22 April 2004.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Court notes that the documents in the case file show that the
applicant was injured while opening the window of his cell at 8 a.m.
and that officers offered to take him to see a doctor immediately
after the hearing had been cancelled, that is to say, two and a half
hours after the incident. He however refused to go until 1.30 p.m. It
appears that the doctor examining the applicant did not consider the
injury to be severe (see paragraph 33 above).
The
Court considers that the documents in the case file do not
demonstrate that the treatment complained of reached the threshold of
severity required to bring it within the scope of Article 3 of the
Convention.
The
Court does not find it necessary to determine whether the applicant
has fulfilled the condition of exhaustion of domestic remedies in
respect of this complaint because it is in any event manifestly
ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS
The
applicant complained under Article 6 § 1 that both sets of
criminal proceedings had been excessively long.
Articles
6, as far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
He
also complained that the remedies available for excessive legal
proceedings in Slovenia were ineffective.
Article
13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The first set of proceedings
1. Admissibility
In
respect of the complaint concerning the length of the first set of
proceedings, the Court notes that it is similar to that in the cases
of Belinger and Lukenda (see Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001, and Lukenda v.
Slovenia, no. 23032/02, 6 October 2005). In those cases the Court
dismissed the Government's objection of non-exhaustion of domestic
remedies because it found that the legal remedies at the applicant's
disposal were ineffective. The Court reiterates
its findings in the Lukenda judgment that the violation of the
right to a trial within a reasonable time is a systemic problem
resulting from inadequate legislation and inefficiency in the
administration of justice.
As
regards the instant complaint, the Court finds that the Government
have not submitted any convincing arguments which would require the
Court to distinguish it from its established case-law.
59.
The Court further notes that this complaint is also not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) Article 6 § 1
(i) Arguments of the parties
The
Government argued that the period to be taken into consideration had
run from 4 May 1999, the day the investigating judge issued the
decision opening the criminal investigation against the applicant,
until the Supreme Court's judgment of 11 November 2004.
The
Government further maintained that the proceedings had been very
complex, which was also related to the fact that the alleged victims
were minors. In addition, the applicant's conduct had caused a number
of delays.
61. The
applicant disagreed. He argued that the first set of proceedings had
started on the day the public prosecutor lodged his request for a
criminal investigation, namely on 31 August 1998, and had not yet
ended since the Constitutional Court was still to rule on his appeal.
The
applicant submitted that the length of the proceedings was excessive
because of the conduct of the domestic courts.
(ii) The Court's assessment
(α) Commencement of the period to be
taken into account
62. The
prominent place held in a democratic society by the right to a fair
trial (see Airey v. Ireland, judgment of 9 October 1979,
Series A no. 32, pp. 12-13, § 24) prompts the Court to
prefer a “substantive”, rather than a “formal”,
conception of the “charge” contemplated by Article 6 §
1. The “charge”, for the purposes of Article 6 §
1, may in general be defined as “the official notification
given to an individual by the competent authority of an allegation
that he has committed a criminal offence”. This may occur on a
date prior to the case coming before the trial court, such as the
date of arrest, the date when the person concerned was officially
notified that he was to be prosecuted or the date when the
preliminary investigations were opened (Neumeister v. Austria,
judgment of 27 June 1968, Series A no. 8, p. 41, § 18; Foti
and Others v. Italy, judgment of 10 December 1982, Series A no.
56, §§ 52-53; and G.K. v. Poland, no. 38816/97,
§ 98, 20 January 2004). However, in some
instances the “charge” may take the form of other
measures which carry the implication of such an allegation and which,
likewise, substantially affect the situation of the suspect (see,
among other authorities, Eckle, cited above, §
73).
Therefore,
the Court is compelled to look behind the appearances and investigate
the realities of the procedure in question (Deweer v. Belgium,
judgment of 27 February 1980, Series A no. 35, § 44).
In
the instant case, the Court finds that neither the Government nor the
applicant provided an explanation in support of their position
regarding the beginning of the period to be taken into consideration
(see paragraphs 60 and 61 above). The Court will thus base its
examination on the information in the case file and the provisions of
Slovenian law as they were applied in the proceedings against the
applicant (see paragraphs 42-50 above).
The
Court notes that in the preliminary proceedings the police must
collect enough evidence to enable the public prosecutor to
substantiate all the elements of the request for an investigation
(see paragraphs 44-46 above). In the instant case, the Court observes
that one of the steps taken for that purpose was the questioning of
one of the school teachers (see paragraph 7 above). Given the content
of her statement and in view of the fact that a request for an
investigation concerning the criminal offence of sexual abuse of a
minor was ultimately lodged against the applicant, the Court
presupposes that the police must also have taken other measures in
order to gather evidence in support of the reasonable suspicion
against him. Clearly, any such measures resulted in interference with
the applicant's right to respect for his private life, it being
precisely this aspect of his life that the police and the prosecution
authorities had to scrutinise. The Court thus concludes that the
activities of the police in the preliminary proceedings must have
substantially affected the applicant's situation at the material time
(see, mutatis mutandis, Casse v. Luxembourg, no.
40327/02, §§ 31-33, 27 April 2006; Diamantides
v. Greece, no. 60821/00, § 21, 23 October 2003;
and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67,
ECHR 2000 I).
However,
the Court points out that, in the applicant's submission, the
relevant period had started to run with the request for an
investigation (see paragraph 61 above). In this connection, the Court
notes that, in cases such as the present, the request for an
investigation is a formal act of prosecution performed by the public
prosecutor, that is to say, the State's authority responsible for the
prosecution of criminal offences, on the reasonable suspicion that an
individual has committed a criminal offence. This standard of proof
appears to correspond, in theory, to that required by Article 5 § 1
of the Convention (see paragraph 46 above).
The
Court is not convinced by the Government's view that such a request
does not represent a “charge” but that the investigating
judge's decision upholding the request does.
It
finds that, at the moment the request for an investigation was made,
the applicant was clearly suspected of committing a crime (see,
mutatis mutandis, Casse, cited above, § 33).
Moreover, the request for an investigation did not just reflect the
public prosecutor's position as to the existence of reasonable
suspicion that the applicant had committed a crime, but also set in
motion the proceedings before the investigating judge and as such
represented a procedural step against the applicant which was
directly relevant to the criminal investigation and to the
determination of a “charge”.
The
Court observes that there is no indication in the case file that
notice of the request for an investigation was officially served on
the applicant, nor is there any provision in the relevant domestic
law requiring the suspect to be notified at that stage of the
proceedings (see paragraph 47 above). The Court reiterates that it is
not its function to assess the national law, unless and in so far as
it may have infringed rights and freedoms protected by the Convention
(see, mutatis mutandis, Garcia Ruiz v. Spain, [GC],
no. 30544/96, § 28, ECHR 1999-I). However, a mere
possibility that such notification was not required, or was not
provided to the applicant, should not lead the Court to reach a
different conclusion as to the beginning of the period to be taken
into consideration. Otherwise it would be possible for the State, in
relation to the fulfilment of its undertaking to comply with Article
6, to seek refuge behind the possible failure of its own domestic law
or administration of justice.
Therefore, having regard to the circumstances of the
present case, in particular to the measures undertaken by the police
in the preliminary proceedings and the social stigma attached to the
alleged criminal offence, the Court considers that the applicant's
situation must already have been substantially affected in the
preliminary proceedings. However, given the applicant's argument (see
paragraph 61 above) and having been unable to ascertain the exact
point at which he began to be affected by the proceedings, the Court
concludes that he was “charged” for the purposes of
Article 6 at the latest on 31 August 1998, when the request for an
investigation was lodged against him by the public prosecutor.
(β) End of the period to be taken into
account
69. The
Court notes that the first set of proceedings is still pending before
the Constitutional Court. It points out that, according to its
established case-law, the proceedings before the Constitutional
Court, which could influence the outcome of the proceedings before
the lower courts, should be included in the relevant period (see
Metzger v. Germany, no. 37591/97, § 34,
31 May 2001). The Government did not submit anything that
would lead the Court to reach a different conclusion in the present
case (see paragraph 60 above).
The
relevant period in respect of the first set of proceedings has
therefore lasted more than eight years and three months for four
levels of jurisdiction.
(γ) The reasonableness of the length of
the proceedings
The Court reiterates that the reasonableness of the length of the
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the Court's case-law, in particular the complexity of the case and
the conduct of the applicant and of the authorities dealing with the
case, as well as what was at stake for the applicant (see, among
other authorities, Klamecki v. Poland, no. 25415/94, § 87,
28 March 2002).
The
Court accepts that the authorities in the domestic proceedings were
faced with some difficulties in obtaining evidence owing to the
status of the alleged victims. It, however, cannot disregard the fact
that the first set of proceedings was pending for more than four
years and seven months at the first level of jurisdiction. The Court
attaches importance to two periods of inactivity for which the State
was essentially responsible, between the request for an investigation
and the investigating judge's decision (see paragraphs 8 and 9 above)
and, in particular, the delay of two years and seven months between
the bill of indictment and the first hearing (see paragraphs 11 and
12 above). The Court notes in this connection that the domestic
authorities did not comply with the time-limits set out in domestic
legislation (see paragraph 50 above) and that there is no information
in the case file explaining the measures taken in this connection.
As
to the applicant's conduct, it does not appear that the applicant
caused any significant delays in the first set of proceedings.
74.
The Court therefore considers that the above-mentioned delays and the
overall length of more than eight years for four levels of
jurisdiction were not justified or reasonable in the circumstances of
the case. Having regard to its case-law on the subject, the Court
finds that there has been a violation of Article 6 § 1
on account of the length of the first set of proceedings.
(b) Article 13
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
In
the present case, the Court has found a violation of Article 6 §
1 in respect of the first set of proceedings.
The
Court notes that the objections and arguments put forward by the
Slovenian Government as to the existence of an effective legal remedy
in respect of complaints concerning the right to a trial within a
reasonable time have been rejected in earlier cases (see Lukenda,
cited above) and sees no reason to reach a different conclusion in
the present case.
Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law by which the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as guaranteed by Article 6 § 1.
B. The second set of proceedings
As
regards the complaint concerning the length of the second set of
proceedings, the Court considers that it should be declared
inadmissible for the following reasons.
In
the Court's view, the relevant period started to run on
14 April 2003, the day the applicant was arrested and
subsequently brought to the investigating judge, who remanded him in
custody (see Wemhoff v. Germany, judgment of 27 June 1968,
Series A no. 7, § 19). The proceedings are currently
pending before the Constitutional Court (see, mutatis mutandis,
paragraph 69 above). They have therefore lasted about three years and
seven months for four levels of jurisdiction.
As
to the reasonableness of the length of the proceedings, the Court
points out that it must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the Court's case-law (see paragraph 71 above).
The
Court notes that the applicant was detained during the period in
question. It reiterates that persons kept in detention
pending trial are entitled to “special diligence” on the
part of the authorities. Consequently, in cases where a person is
detained pending the determination of a criminal charge against him,
the fact of his detention is itself a factor to be considered in
assessing whether the requirement of a decision on the merits within
a reasonable time has been met (see, for example, Abdoella v. the
Netherlands, judgment of 25 November 1992, Series A no.
248-A, p. 17, § 24).
The
Court cannot but note that the applicant took a series of steps which
complicated and prolonged the proceedings. Whilst it is true
that an accused cannot be required to co-operate actively with the
judicial authorities, nor can he be criticized for having made full
use of the remedies available under the domestic law (Eckle v.
Germany, judgment of 15 July 1982, Series A no. 51, §
82), it appears in the instant case that the applicant availed
himself excessively, if not abusively, of certain remedies during the
trial (see, mutatis mutandis, X v. Federal Republic of
Germany, no. 6541/74, Commission decision of 9 July 1975). He
lodged various requests for the withdrawal of judges and the transfer
of jurisdiction which were ultimately regarded by the domestic courts
as constituting an abuse of procedural rights and a delaying
tactic (see paragraphs 31 and 36 above).
In
any event, the applicant's conduct, notwithstanding his
intention, constitutes at least an objective fact not capable of
being attributed to the respondent State, and this is to be
taken into account when determining whether or not the proceedings
lasted longer than the reasonable time referred to in Article 6 §
1 (see Eckle, cited above, § 82).
That
being said, the Court notes that despite the applicant's conduct,
as referred to above, the first-instance proceedings were
concluded in only one year and seven months. In three years and seven
months the decisions were given at three instances and the case is
currently pending before the Constitutional Court.
The
Court therefore considers that the authorities displayed the required
diligence in dealing with the applicant's case.
Having
regard to the Court's case-law, taking into account that the
applicant was detained during the period in question and even
accepting that the case was one of some complexity, the Court
considers that the length of the second set of proceedings did not
exceed the “reasonable time” requirement. The complaint
must thus be declared inadmissible as manifestly ill-founded in
accordance with Article 35 §§ 3 and 4 of the Convention.
The
Court further reiterates that Article 13 requires the State to
provide an effective legal remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant
appropriate relief (see Sürmeli v. Germany
[GC], no. 75529/01, § 98, 8 June 2006).
Considering that the complaint about the excessive length of the
second set of proceedings is inadmissible as manifestly ill-founded,
the Court finds that the applicant did not have an arguable claim
that his right to an effective remedy within the meaning of Article
13 had been breached. Therefore, this complaint does not reveal any
appearance of a violation of the Convention provision.
Accordingly,
the complaint under Article 13 is also manifestly ill-founded and
must be declared inadmissible within the meaning of Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 14 OF THE
CONVENTION AS REGARDS THE FAIRNESS OF THE PROCEEDINGS
The
applicant complained under Article 6 §§ 1 and 3 (b) and (d)
of the Convention that the judge had refused to examine witnesses
proposed by him, that he had not had access to the copies of certain
documents from the case file and that two judges deciding on his case
had been biased.
Articles
6, as far as relevant, reads as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair hearing ... by an
independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...
(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;
....”
In
addition, under Article 14 of the Convention, read in conjunction
with Article 6, he complained that his defence rights had been
breached because he was of Croatian origin.
Article 14
provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
status.”
89. The
Court observes that the applicant was able to raise the allegations
concerning the alleged unfairness of both sets of proceedings and the
alleged discrimination against him in his appeals following the
first-instance court's judgments.
However, both sets of proceedings are still pending before the
Constitutional Court (see paragraphs 16 and 41 above). It follows
that these complaints are premature and must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
Without
relying on any provision of the Convention, the applicant also
alleged that owing to media reporting the secrecy of the proceedings
had been breached. In substance, this complaint could raise an issue
with respect to the protection of the applicant's private life under
Article 8 (see paragraph 6 above), which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Court notes that in his second constitutional appeal, lodged on
16 June 2006, the applicant complained about the breach of the
secrecy of the proceedings. The issue of the alleged disclosure of
information concerning the applicant's private life is thus yet to be
decided by the Constitutional Court.
It
follows that this complaint is premature and must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant did not specify the amount claimed in respect of
non-pecuniary damage. He left the matter to the discretion of the
Court.
The
Government left the issue to be decided by the Court on the basis of
its case-law.
The
Court considers that the applicant must have sustained non-pecuniary
damage in respect of the excessive length of the first set of
proceedings and of the lack of an effective remedy. Ruling on an
equitable basis, it awards him 1,200 euros (EUR) under that head.
B. Costs and expenses
As
the applicant did not submit any claim for costs and expenses
incurred in the proceedings before the domestic courts or before this
Court, the Court considers that no award should be made to him under
that head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the length of
the first set of criminal proceedings and the effectiveness of legal
remedies in this connection admissible;
Declares inadmissible the remainder of the
application;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the first set of criminal
proceedings;
Holds that there has been a violation of Article
13 of the Convention in respect of the first set of criminal
proceedings;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
