European Court of Human Rights

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF POROPAT v. SLOVENIA

 

(Application no. 21668/12)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

9 May 2017

 

 

 

 

 

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 Poropat v. Slovenia,

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

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 28 March 2017,

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

PROCEDURE

1.  The case originated in an application (no. 21668/12) 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 Marino Poropat (“the applicant”), on 5 April 2012.

2.  The applicant was represented before the Court by Mr B. Gvozdić, a lawyer practising in Sežana. The Slovenian Government (“the Government”) were represented by their Agent, Ms T. Mihelič Žitko, State Attorney.

3.  The applicant alleged that his defence rights had not been respected, in violation of Article 6 of the Convention.

4.  On 9 February 2015 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1951 and lives in Portorož.

6.  The applicant and R.H. are neighbours; they live in a two apartment house with a shared courtyard. They have been in conflict for several years and have both instituted several sets of legal proceedings against each other.

A.  Criminal proceedings against the applicant

7.  On 13 February 2004 R.H. lodged a criminal complaint against the applicant. He alleged that earlier on that same day the applicant had threatened him by yelling “I have bought a gun, so it will all be over soon”. R.H. alleged that this incident happened in front of their house. He stated that first his cleaning lady had been obstructed by the applicant when entering the courtyard through a small door, and half an hour later he had been able to open neither the small door, nor the large electric sliding doors, which he had assumed had been the applicant’s fault. At that point he allegedly engaged in arguing with the applicant who allegedly replied with the aforementioned threats. R.H. also stated that the applicant had had a gun licence.

8.  On 1 March 2004 the Koper police held an interview with the applicant.

9.  On 2 April 2004 the police sent a report to the Koper district prosecutor, stating that they had not found any reasonable suspicion that the alleged criminal offence had been committed by the applicant.

10.  On 29 October 2004 the Koper district prosecutor lodged charges against the applicant for the offence of threatening the security of another person.

11.  On 2 April 2007 the Piran Local Court held a hearing. The applicant denied the charges, claimed that R.H. had lied and that multiple sets of proceedings had been brought against him following an attempt on his life in 1999. He requested that the video surveillance footage of the day of the incident be inspected. He handed in to the court the minutes from a hearing of 9 February 2004 in some other proceedings which noted that the applicant had changed the lock of the small door leading to the courtyard and that he had handed the new keys to R.H. at that hearing. In reply to the questions put by the applicant’s counsel, R.H. submitted that there had been between twelve and sixteen cameras surveying inside and the outside area of the house and that the recordings had been stored for about fifteen days. He said that the applicant had been standing somewhere between his entrance and the courtyard of the house during the incident but had refused to sketch where the incident had taken place. R.H. further replied that he had not checked the video footage following the incident, but that in any event the cameras would have not covered the whole incident and that the server of the video surveillance system had broken down on many occasions; he later added that in any case the server had been changed by the maintenance company. The applicant insisted that an inspection of the site be carried out and that evidence concerning video surveillance, including information such as the change of server, could and should be verified. The judge found it unnecessary to obtain the evidence in question and the following day acquitted the applicant finding that it had not been proved that the applicant had directed the threats against R.H.

12.  On 21 November 2007 the Koper Higher Court upheld the appeal lodged by the district attorney’s office and remitted the case to the first-instance court. It found that the charges contained all the elements of the offence and that it was not necessary to include the circumstances showing that the injured party had actually felt endangered.

13.  At the Piran Local Court’s hearing of 10 April 2009 the applicant gave testimony. He denied that the alleged incident had taken place, submitting, inter alia, that he and R.H. were in dispute over the division of the house in which they lived, and that the prosecution authorities were not functioning as they should. He also said that neither the inspection of the site of the alleged offence nor an examination of video surveillance footage had been done although they would have proved that he had not committed the alleged offence. Furthermore, the applicant denied that he had prevented the cleaning lady from entering the courtyard and that she must have had the wrong key. The applicant requested that the prosecution obtain a statement from D.Č. who could testify to the fact that R.H. had regularly influenced witnesses so that they had given false testimonies. The applicant requested that D.Č. be examined at the hearing as well, and explained that this evidence would have undermined the credibility of R.H., whose testimony was the only prosecution evidence in the case.

14.  The Court also examined R.H. who stated that the cleaning lady had on the day of the incident told him that the applicant had not allowed her to enter the courtyard. According to R.H., he had then taken the rubbish out himself at which point he had met the applicant. R.H. had suspected that the applicant had disconnected the outdoor sliding door and for that reason argued with him at which point the applicant had threatened him. R.H. was asked by the prosecutor whether he had told anyone about the offence to which R.H. replied that he had told K.C., but maybe also the cleaning lady and the gardener (P.P.). As regards K.C. he could not remember where he had told him and how. R.H. also stated that he did not know if anyone had witnessed the incident and that he had not stored the video surveillance footage but that this would have in any event not have shown the incident as it had happened out of the cameras’ field of vision. R.H. also stated that D.Č. was not to be believed as he was a drug addict and a criminal.

15.  The Court allowed the evidence by witness K.C. and P.P. and D.Č.’s written statement of 30 November 2008. The latter, which was read out at the hearing of 3 July 2009 (see paragraph 16 below), read, as far as relevant, as follows:

“The undersigned, ... declare that ...[R.H]. ... had been using his influence to obtain false testimony against Marino Poropat in many cases.

 

... [R. H.] offered me 10,000 euros [EUR] to find a person in Croatia who would be prepared to kill Marino Poropat.

...”

16.  At the hearing of 3 July 2009, P.P. did not attend. However, K.C. attended and was examined as a witness. He said that he did not know why he had been summoned to testify but, further to the question by the applicant’s counsel, confirmed that he had spent ten minutes with R.H. in a bar before attending that hearing. He denied that he had been instructed to testify against the applicant. In his testimony he also said that R.H. had called him after the incident of 13 February 2004 and told him that the applicant had said that he had bought a gun and would end this. The applicant stated that K.C. was not to be believed as he had been previously reported to police because of alleged false testimony. He requested that D.Č. be examined as a witness with regard to K.C.’s and R.H.’s credibility as he could testify to the fact that there had been “more such false statements”. D.Č.’s statement had been read out at the hearing, however the court refused to hear evidence from him, finding that the facts had been sufficiently established. It also found it unnecessary to hear evidence from P.P. At the hearing, the applicant’s representative pointed out that the applicant and R.H. had been opposing parties in a number of civil and criminal proceedings. He also drew attention to the fact that the police had not found any evidence to prosecute the applicant and submitted that that the charges had been based on two statements of unreliable witnesses, namely the injured party and K.C.

17.  On 3 July 2009 the Piran Local Court found the applicant guilty and sentenced him to three months’ imprisonment, suspended. It noted that the applicant had contested the credibility of R.H. and K.C., to whom the court referred as R.H.’s work colleague (sodelavec), because the former had been in several legal disputes with him and because the latter had been reported to the police for false testimony on several occasions. However, the court concluded that this had not undermined their credibility and that it was proved on the basis of the evidence given by R.H. and K.C. that the applicant had threatened the former by referring to the fact that he had bought a gun and that the threat had caused fear in R.H. The court also found the applicant’s argument that the whole incident had been made up unpersuasive. It explained that it had not questioned P.P. and D.Č. as the facts had been sufficiently established and further stated the following reasons for the dismissal of the applicant’s application to have the evidence examined:

“...the court did not hear evidence from D.Č. because nothing can be deduced from his written statement that would refer to the incident which is the subject of [the present] proceedings. Also the inspection of the site and a reconstruction of the events were not performed, since the manner how the incident occurred and moreover the content of the words said can already be established from the other evidence produced.”

18.  On 9 September 2009 the applicant lodged an appeal relying on, inter alia, Article 6 § 3 (d) of the Convention. He complained about the court’s refusal to hear D.Č., stressing that the court should have taken into account the numerous proceedings to which the applicant and R.H. had been party and that it should therefore have shown more prudence when giving credence to the statements of K.C., who had been testifying for the benefit of R.H. in almost all of these proceedings. He further alleged that the court should have doubted the credibility of K.C. on account of the fact that R.H. had mentioned his conversation with K.C. only six years after the incident, that is to say after the applicant had initially been acquitted in the first set of proceedings. He also noted that, despite the fact that the whole grounds of the house had been under video surveillance, R.H. had not provided video footage to prove that he and the applicant had actually met on the relevant day, which the applicant had denied.

19.  On 6 January 2010 the applicant became aware of the opening of a criminal judicial investigation against K.C. in respect of the offence of aiding the attack on him in 1999. It would appear that no charges were eventually brought in this connection and the applicant instituted civil proceeding against the State, claiming compensation for non-pecuniary damage due to the infringement of his personal rights caused by the ineffective criminal investigation. On 29 May 2014 the Constitutional Court decided that the attack had not been duly investigated and that this had amounted to an infringement of the procedural aspects of the applicant’s rights to personal dignity and safety (Article 34 of the Constitution) and the inviolability of his physical and mental integrity (Article 35 of the Constitution).

20.  In the meantime, on 3 February 2010, the Koper Higher Court dismissed the applicant’s appeal. It observed that the rights of the defence had not been violated by the refusal to hear evidence from D.Č. or to obtain other evidence and that the first-instance court had given sufficient reasons in this respect.

21.  On 15 February 2010 the applicant lodged an application for the protection of legality with the Supreme Court. He repeated the arguments advanced before the lower courts, in particular that D.Č. could have testified to the hostile relationship between the applicant and R.H. and about the latter’s influence on witnesses and should have therefore been given an opportunity to testify. He further referred to the fact that in the meantime criminal proceedings had been opened against K.C. in respect of the 1999 attack against him (see paragraph 19 above). He argued that this confirmed his allegations that K.C. could not be considered a reliable witness.

22.  On 12 April 2010 in a separate set of civil proceedings to which R.H. and the applicant were party, D.Č. testified that he had been a long term friend of R.H. He further stated that he had witnessed R.H. influencing witnesses in order to obtain statements against the applicant. He also stated that R.H. had threatened and insulted the applicant almost every time he had met him and the latter had always avoided a confrontation with R.H.

23.  On 17 June 2010 the Supreme Court dismissed the applicant’s claim for the protection of legality. As regards D.Č., it noted that this witness could presumably testify to the hostile relationship between the applicant and R.H. and about the latter’s influencing of witness but not about the actual incident which was the subject of the present proceedings. As to the applicant’s reference to an investigation against K.C. (see paragraph 21 above), the Supreme Court found that this argument was of a factual nature and could not therefore be successfully pursued in an appeal on points of law.

24.  On 30 August 2010 the applicant lodged a constitutional complaint. He reiterated his arguments concerning non-admission of evidence and in addition referred to the testimony given by D.Č. on 12 April 2010 (see paragraph 22 above).

25.  On 25 October 2011 the Constitutional Court dismissed the applicant’s constitutional complaint, referring to section 55.b of the Constitutional Court Act (see paragraph 33 below).

B.  The applicant’s attempt to reopen the criminal proceedings

26.  On 30 August 2010 the applicant applied to have the above criminal proceedings against him reopened on the basis of the evidence adduced at the hearing of 12 February 2010 (see paragraph 22 above) and requested that D.Č. be examined as a witness. In particular D.Č. had stated that he had been R.H.’s friend and the applicant therefore argued that it would have been unusual for R.H. not to tell D.Č. about the incident with the applicant. He moreover referred to D.Č.’s statement that the applicant had always avoided R.H. and argued that his testimony would have confirmed his defence.

27.  Further to the instruction by the judge who had been allocated the reopening application, another judge examined D.Č. on 28 June 2011 in the presence of the applicant. D.Č. testified that he had been a friend of R.H. in 2004 and had been in daily contact with him but did not remember if R.H. had told him if he had been threatened by the applicant. He further stated, among other things, that he did not remember the events of 13 February 2004 but that there had been many incidents in which the applicant and R.H. had met in front of the house and R.H. had threatened and insulted the applicant. He had witnessed many of their quarrels there but had never seen the applicant threatening or insulting R.H. When confronted with R.H. the applicant had always withdrawn. D.Č. further stated that he had seen R.H. influencing witnesses but would not be able to tell in which cases as there had been more than twenty sets of proceedings involving R.H. and most of them had been directed against the applicant. He further affirmed that he had himself been asked to falsely testify and said that that matter was pending before the courts. Lastly, D.Č. testified that R.H. had had two guns when he had moved into the house.

28.  On 16 August 2011 the Piran Local Court rejected the applicant’s application for reopening finding that D.Č. had not directly observed the incident leading to the applicant’s conviction but could only testify to R.H.’s influencing of witnesses and the nature of the relationship between the applicant and R.H. The court found that these facts had already been known to the trial court, which had refused to hear D.Č. as a witness. The court also had regard to the fact that the Koper Higher Court as well as the Supreme Court had examined the applicant’s request to hear D.Č.

29.  The applicant’s appeal against the above decision was dismissed on 14 December 2011 by the Higher Court. The latter noted, first, that D.Č.’s testimony had not brought to light any new facts directly relating to the criminal offence for which the applicant had been convicted and, second, that the applicant had already attempted to prove R.H.’s had influenced witnesses and that his request to that effect had been rejected by the courts during the criminal proceedings, including by the Supreme Court, which meant that this could not be considered as new evidence.

30.  The applicant lodged an application for the protection of legality. On 26 April 2012 the Supreme Court dismissed the application, endorsing the conclusion of the lower courts that D.Č.’s testimony was “an irrelevant piece of evidence as [D.Č.] could not tell [the court] anything concrete about the criminal offence of threatening security considered [by the court] because he had not directly witnessed it.” The Supreme Court further found that the Higher Court had rightly pointed out that D.Č.’s testimony could also not have been considered as new evidence.

II.  RELEVANT DOMESTIC LAW

31.  Article 145 § 1 of the Criminal Code (Official Gazette no. 63/94 with amendments) stipulated at the relevant time that a person who endangered another person’s security by means of a serious threat of attacking his or her life and limb should be punished by a fine or a term of up to one year in prison.

32.  The Criminal Procedure Act (Official Gazette no. 63/94 with amendments) stipulated at the relevant time that criminal proceedings could be reopened if new facts or evidence, alone or in relation to the evidence adduced in the trial, came to light and were capable of leading to the acquittal of the accused.

33.  Section 55b, paragraph 2, of the Constitutional Court Act 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;

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

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND § 3 (d) OF THE CONVENTION

34.  The applicant complained that his right to a fair trial had been infringed on account of the court’s refusal to admit evidence he had wished to adduce.

35.  Although the applicant relied only on Article 6 § 1, the Court finds it appropriate to examine the case under both paragraph 1 as well as paragraph 3 (d) of Article 6 of the Convention, which, in so far as relevant, read 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

36.  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

37.  The applicant argued that his conviction had been based on the unreliable testimony of R. H., with whom he had been in an ongoing dispute over the division of the house. The only other evidence supporting the applicant’s conviction had been the testimony of K.C. who had not directly witnessed the incident. Moreover, K.C. had been put forward as a witness only six years after the incident and had testified in R.H.’s favour in virtually all proceedings between the latter and the applicant. Yet the court had ignored this fact as well as the fact that R.H. had had a motive to engineer a false indictment against the applicant.

38.  The applicant also submitted that despite his main argument that the whole incident had been made up by R.H. and despite his repeated requests, he had not been able to obtain the attendance of a witness who he alleged would have undermined the credibility of R.H. and K.C., namely D.Č. His proposal to review evidence such as the video surveillance recordings, which would have confirmed that he had not been at the courtyard of the house at the relevant time, had likewise been rejected.

39.  The Government argued that the applicant had had a fair trial. In particular, they argued that the court had not been under an obligation to examine every piece of evidence proposed by the accused. The court had given reasons for rejecting the application to examine D.Č. and these had been upheld by the higher courts. Moreover, unlike K.C., D.Č. could not have told the court anything about the incident in question. Lastly, during the proceedings concerning the applicant’s application for reopening, the court had assessed D.Č.’s statement, had heard evidence from D.Č. and had explained its decision not to allow the reopening of the proceedings. None of the courts had therefore acted arbitrarily.

2.  The Court’s assessment

(a)  General principles

40.  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 provision; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).

41.  It further notes that the essential aim of paragraph 3 (d), as is indicated by the words “under the same conditions”, is full “equality of arms” in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of the proposed evidence, in so far as this is compatible with the concept of a fair trial, which dominates the whole of Article 6 (see, among more recent authorities, Topić v. Croatia, no. 51355/10, § 40, 10 October 2013).

42.  The Court also reiterates that its task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. In particular, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. Article 6 § 3 (d) leaves it to them to assess whether it is appropriate to call witnesses (see, among many other authorities, Topić, cited above, § 41, and Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V). It is accordingly not sufficient for a defendant to complain that he or she has not been allowed to question certain witnesses; the defendant must, in addition, support his or her request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth. Thus, when the applicant has made a request to call witnesses which is not vexatious, and which is sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to the applicant’s acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Topić, cited above, § 42).

(b)  Application of the above principles to the present case

43.  The Court notes at the outset that the criminal offence of threating R.H., of which the applicant was convicted, was not witnessed by any independent witnesses. It further notes that the applicant denied that this incident had ever taken place and argued that it had been made up by R.H. with whom he had been in several legal disputes, a fact which was not disputed in the proceedings (see paragraphs 11, 13 and 16 above). After being initially acquitted, the applicant was convicted solely on the basis of the testimony of R.H. and K.C., to whom the court referred as R.H.’s work colleague and who had testified that R.H. had told him about the incident (see paragraph 17 above). Apart from the fact that K.C. had not witnessed the incident himself, it cannot be overlooked that a number of facts raised in the proceedings called into question his credibility but were not addressed by the court in any detail, for example the fact that K.C. had met with R.H. in a bar just ahead of the hearing at which he testified, but denied knowing why he had been summoned to the court; that it was alleged that K.C. had been previously reported to police for false testimony (see paragraph 16 above) and that K.C. had been mentioned as a witness for the first time only six years after the criminal complaint had been lodged by R.H. (see paragraphs 7 and 14 above).

44.  In his defence, the applicant relied on two main arguments, specifically that R.H. and K.C. could not be believed, and that, despite having been available, the video footage concerning the relevant day had not been secured, let alone examined.

45.  As to the latter point, the applicant requested that the footage from R.H.’s video surveillance be obtained, and criticised throughout the proceedings the failure to obtain this evidence as it would have supported his defence (see paragraphs 11, 13 and 18 above). In this connection the Court observes that R.H. admitted that there had been between twelve and sixteen cameras installed in and around the house (see paragraph 14 above). The Court therefore considers that reasonable efforts should have been made after R.H. lodged his criminal complaint with the police to secure the footage with a view to verifying whether it had captured the incident. The Court can accept that this initial failure, which can only be attributed to the authorities and R.H., could perhaps not have been redressed later, however no conclusions were drawn from it in the judgment convicting the applicant (see, mutatis mutandis, Melich and Beck v. the Czech Republic, no. 35450/04, § 51, 24 July 2008). Moreover, none of the arguments put forward by R.H. in this connection (see paragraph 14 above) seemed to have been verified by the court that convicted the applicant.

46.  The Court furthermore notes that the applicant requested that D.Č. be examined because he could testify to the fact that R.H. had been influencing witnesses and could thereby undermine the testimony of K.C. as well as the credibility of R.H. (see paragraphs 13 and 16 above). This request was refused on the grounds that the facts had been sufficiently established (see paragraphs 16 and 17 above) and that, in any event, having regard to his written statement, D.Č., could not testify directly about the incident leading to the charges (see paragraph 17 above). The latter argument was endorsed by the courts at all levels of jurisdiction, including the courts dealing with the application for reopening (see paragraphs 20, 23, 28, 29 and 30 above).

47.  It is not for the Court to act as a court of fourth instance (see Schatschaschwili, cited above, § 124) and it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158, and, among the most recent authorities, Hanu v. Romania, no. 10890/04, § 33, 4 June 2013). However, this does not prevent the Court from reviewing their decisions with a view to ascertaining whether the applicant had guarantees of a fair trial. To this end, the Court notes that although at the hearing the applicant stated - in support of his request to question D.Č. - only that the latter would testify to the fact that R.H. had regularly influenced witnesses (see paragraph 13 above), his request could not be said to have been vexatious and it was indeed relevant to his main line of defence - challenging the reliability of R.H. and K.C.

48.  Nevertheless, the court refused the applicant’s request to question D.Č. (see paragraph 46 above). As regards the first grounds for the refusal, namely that the facts had been sufficiently established, the Court finds that it does not constitute a sufficient reason in itself (see Topić, cited above, § 47).

49.  As regards the second grounds, namely that D.Č. could not testify directly about the incident underpinning the charges, the Court notes that these grounds do not refer to the applicant’s failure to substantiate his request for evidence. They rather express what would appear to be the courts’ position that such evidence could not be, as a matter of principle, considered relevant. In particular, in the criminal proceedings against the applicant the Supreme Court addressed the argument that D.Č. could presumably testify to the hostile relationship between the applicant and R.H. and about the latter’s influence on witnesses, but, like the lower courts, concluded that this evidence would not have been relevant as it did not relate to the actual incident which was the subject of the charges (see paragraph 23 above). What is more, even in the proceedings concerning the reopening application, in which D.Č. gave his testimony (see paragraph 27 above), the courts took the view that D.Č. did not need to be questioned in the trial as his testimony did not relate to the actual incident underpinning the charges (see paragraphs 28, 29 and 30 above).

50.  This position of the courts made it impossible for the applicant to challenge the witnesses’ credibility by having the evidence relating to their prior conduct examined. Having regard to the foregoing, to the evidence on which the court relied in reaching its finding that the applicant was guilty (see paragraphs 17 and 43 above), and to the failure of the authorities to secure the video surveillance footage (see paragraph 45 above), the Court finds that an unfair advantage in favour of the prosecution was created and that consequently the applicant was deprived of any practical opportunity to effectively challenge the charges against him (see, mutatis mutandis, Topić, cited above, § 48, and Polyakov v. Russia, no. 77018/01, § 36, 29 January 2009). The Court also observes that the subsequent examination of D.Č. in the proceedings concerning the application for reopening did not cure that defect. In particular, the courts deciding on his application for reopening relied predominantly on the same arguments as the trial court (see paragraphs 28, 29 and 30 above).

51.  The Court considers that the above deficiencies rendered the trial as a whole unfair and that there has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

 II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

52.  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

53.  The applicant claimed EUR 5,000 in respect of non-pecuniary damage.

54.  The Government argued that the claim was unsubstantiated and excessive.

55.  The Court considers that the applicant must have suffered distress and anxiety on account of the violation which has been found. Ruling on an equitable basis, it awards the applicant the claimed amount in respect of non-pecuniary damage in full.

56.  The Court further reiterates that when, as in the instant case, an individual has been convicted in proceedings which did not meet the requirements of Article 6 of the Convention, the most appropriate form of redress would, in principle, be a retrial or the reopening of the case, if requested (see, among many other authorities, Flisar v. Slovenia, no. 3127/09, § 47, 29 September 2011; Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010; and Şaman v. Turkey, no. 35292/05, § 44, 5 April 2011).

B.  Costs and expenses

57.  The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. He based his claim on the official lawyers’ tariff applicable at the time he had lodged the application with the Court.

58.  The Government argued that the claim was unsubstantiated and excessive.

59.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claimed amount in full.

C.  Default interest

60.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

 

3.  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, the following amounts:

(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 9 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                                 Ganna Yudkivska
 Deputy Registrar                                                                       President