SECOND SECTION

DECISION

Applications nos. 35199/18 and 43635/18 Boris POPOVIĆ against Slovenia

The European Court of Human Rights (Second Section), sitting on 18 May 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on 17 July 2018 and 3 September 2018 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Boris Popović, is a Slovenian national, who was born in 1962 and lives in Koper. He was represented before the Court by Odvetniška družba Matoz, a law firm practising in Koper (application no. 35199/18), and Mr Branko Gvozdič , a lawyer practising in Sežana (application no. 43635/18).

2 . The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney.

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

4 . On 16 July 2008 the private prosecutor L.V. lodged a private indictment against the applicant for the criminal offence of an insulting accusation for the following statement the applicant – then a mayor of Koper – had made in a public TV interview on 15 May 2008:

“...[the president of the anti-corruption agency] has a part-time employee who is a former chief of the criminal police in Koper, ... [L.V. ], who is responsible for all the crime that has taken place in Koper all these years, for trafficking drugs and for everything else, for pornographic material and [for making it available] to the minors”.

5 . During the trial, the applicant argued that several individuals had informed him of L.V. ’ s questionable activities, which led him to make the impugned statement. In particular, at a hearing of 21 October 2011, after the applicant gave his defence, following his counsel ’ s explicit question regarding the source of the information, the applicant stated that he had been told about L.V. ’ s activities by M.K. and I.H., who in turn had received that information from criminal investigators F.S. and V.O. It follows from the records of the main hearing of 28 October 2011 that the applicant proposed that the court hear witnesses M.K. and I.H. At the hearing the applicant ’ s counsel also requested that, inter alia , S.V., P.O., F.S., V.O., I.D. and M.P. be called as witnesses in relation to L.V. ’ s alleged criminal activities. He repeated this request in writing on 20 December 2012. In his request the applicant set out the information S.V., P.O., F.S., V.O., I.D. and M.P. could provide in relation to L.V. ’ s alleged criminal activities and at the same time also indicated that this information was conveyed to him by I.H.

6 . During the trial, the Koper District Court heard evidence from I.H., M.K. and N.V. After hearing the aforementioned defence witnesses, the court dismissed the applicant ’ s request to call also witnesses S.V., P.O., F.S., V.O., I.D. and M.P. It stems from the records of the hearing of 13 January 2012, that the court at that hearing decided to dismiss the applicant ’ s request of 20 December 2012 to call the remaining six defence witnesses (see paragraph 5 above) as unnecessary, noting that it had already heard those who, according to the applicant, had told him of the irregularities in the respective police unit. The court emphasised in this connection that they had testified about what they had told the applicant.

7 . On 13 January 2012 the applicant was convicted of insult under section 169(1) and (2) of the Criminal Code (see paragraph 14 below) and was sentenced to two months ’ suspended prison sentence on a two-year probation period. The applicant was also ordered to announce the operative part of the judgment on the respective TV channel at his own expense.

8 . In the judgment, the court reiterated that the applicant himself had argued that everything he had said about L.V. ’ s irregular activities had been true and that he had been told about them by I.H. and M.K. As regards their testimony, the court noted that M.K. had described L.V. as someone who had followed the established police doctrine, had been hard ‑ working and appreciated at work. M.K. had explicitly denied ever saying to the applicant that L.V. had been responsible for all the crime in Koper. The court therefore considered that M.K. had not confirmed the applicant ’ s allegations. As regards I.H. ’ s testimony, the court noted that when describing L.V. ’ s activities he used broad terms and much less detail than the applicant. Moreover, the court noted that I.H. gave an impression that it was the applicant who had provided this information to him rather than the other way around. Lastly, the court considered that the testimony of witness N.V. was not credible because he, inter alia , had blamed L.V. for criminal proceedings against him, had gotten into verbal dispute with L.V. during the hearing and had refused to provide some other relevant information.

9 . As regards the witnesses S.V., P.O., F.S. and V.O., the court held in the judgment that they were to testify about the information that had been told to the applicant by I.H., who had been examined in the proceedings. Moreover, M.P. were to corroborate N.V. ’ s testimony about his (N.V.) meeting with L.V. However, N.V. and L.V. had both testified that they had been at that meeting alone, so the court found it unnecessary to hear M.P. on this point. The court also found it unnecessary to hear I.D. who would allegedly testify about L.V. ’ s activities aimed at preventing the uncovering of crime. When finding the examination of these witnesses unnecessary, the court noted also that the impugned statement was a value judgment which had not been made in relation to a historic event and whose truthfulness could not be proved.

10 . The court further found that the applicant had expressed negative value judgments about L.V. and the Koper Police Department already in the past. In particular, the statements he had made in 2006 and 2007 about L.V. had already been the subject of a criminal investigation and a separate investigation by the National Assembly ’ s Commission of Inquiry which had carried out internal and external supervision of the Criminal Department of the Koper Police Directorate and L.V. himself. They had not found any irregularities in their work. However, the applicant had never challenged their findings and had, in his incriminating statement of 2008, reiterated the same allegations that had already been investigated. The applicant ’ s continuous claims that L.V. had been responsible for all the crime in Koper could only be understood as the applicant ’ s personal attack on L.V. The court considered that the applicant had not had any reason to believe the trustworthiness of what he had been publicly claiming. Moreover, the impugned statement had not contributed to a public debate on questions of public interest. The applicant had made the accusation outside the context and the questions of the interview.

11 . The applicant appealed arguing that he had reasonable grounds to believe what he had learnt about L.V. from I.H. On 24 January 2013 the Koper Higher Court upheld the first-instance court ’ s judgment.

12 . On 6 March 2014 the Supreme Court dismissed the applicant ’ s request for protection of legality lodged against the Higher Court ’ s decision. It held that, although the incriminating statement was a negative value judgment whose truthfulness could not be proven, the first-instance court, in the interest of a fair trial, had given the applicant an opportunity to explain it and to prove that he had reasonable grounds to believe in its truthfulness. However, the applicant had failed to prove that. In particular, in his defence he had referred to the examples on the basis of which he had created the negative judgment of L.V., most of which had been linked to other criminal proceedings against the applicant. The Koper District Court had heard the witnesses and, having regard to his previous publicly made negative value statements about L.V. which had not been confirmed in the ensuing investigations, assessed that the applicant had not had any basis to continue spreading rumours about L.V. which he had known were untrue.

13 . On 15 February 2018 the Constitutional Court, by six votes to two, dismissed the constitutional complaint lodged by the applicant. The majority held that the applicant – trying to prove that he had had a sufficient factual basis to support his statement – had been in a position to effectively mount a defence. It also found that the lower courts had erred in justifying their refusal to examine the proposed defence witnesses by referring to the nature of the applicant ’ s statement as that of a value judgment. It nevertheless concluded that the applicant ’ s right to present evidence in his favour had not been violated noting that the first ‑ instance court had heard I.H. and M.K. who, as alleged by the applicant, had told him everything he had relied on in his defence. It also noted that the first ‑ instance court had explained in detail why it had not considered the testimonies of N.V. and I.H. credible. As regards witnesses S.V., P.O., I.D., F.S. and V.O., the Constitutional Court observed that in his constitutional complaint the applicant adduced reasons for their requested examination that were different from those he – as apparent from the first-instance court ’ s judgment – put forward before the first-instance court. It also observed that the applicant failed to explain the significance of M.P. ’ s testimony.

14 . The relevant provision of the Criminal Code (Official Gazette no. 63/94 with further relevant amendments) reads as follows:

Section 169

“(1) Whoever insults another person shall be punished by a fine or sentenced to imprisonment for not more than three months.

(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than six months.

(3) Whoever expresses words offensive to another person in a scientific, literary or artistic work, in a serious piece of criticism or in the exercise of official duty, in a piece of journalism, in the course of political or other social activity, or in the defence of a right or protection of justified benefits shall not be punished, provided that the manner of expressing such words or that the other circumstances of the case indicate that his expression was not meant to be derogatory.

....”

COMPLAINTS

15 . In both applications, the applicant complained under Article 6 of the Convention that his right to a fair trial had been violated because he could not obtain the attendance and examination of defence witnesses. He had therefore been deprived of the opportunity to prove the existence of the factual basis of the impugned statement. In application no. 35199/18, the applicant complained of a further violation of Article 10 of the Convention.

16 . The applicant complained under Article 13 of the Convention that the Constitutional Court, instead of remitting the case for re-examination by the first-instance court, had examined his request to call witnesses and that therefore had deprived him of an effective remedy. In this connection, in application no. 43635/18, the applicant complained under Article 6 that the Constitutional Court had erred in dismissing his complaint, arguing that he had substantiated the necessity of the witnesses ’ hearing in his constitutional complaint in the same way as in his request for evidence of 19 December 2011.

THE LAW

17 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

18 . The applicant complained that the domestic courts, by refusing to hear six defence witnesses, whose testimonies could have served to prove the existence of the factual basis of the incriminating statement, had violated Article 6 of the Convention, which, in so far as relevant, reads:

“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;

...”

19 . In the Government ’ s view, the applicant had not substantiated his motion for evidence as regards the hearing of six remaining witnesses. The courts having heard I.H. and M.K., who had been the source of information for the applicant, considered that the applicant had failed to demonstrate the relevance of hearing also the aforementioned witnesses for the outcome of the case. Although the Koper District Court had justified the dismissal of the applicant ’ s request to hear them on erroneous grounds, it had nevertheless given the applicant the opportunity to clarify his statement and to prove that he had had reasonable grounds to believe in the truthfulness of the incriminating statement. Relying on the first-instance court ’ s judgment, the Government maintained that the applicant had been aware of the results of the external and internal investigation concerning L.V. on the basis of the applicant ’ s previous statements; he had not contested the findings of that investigation; he had also not contested that the incriminating statement had in fact been a repetition of his previous statements or that it had been based on “new” rumours and that he would have wanted to prove their truthfulness (see paragraph 10 above).

20 . The applicant maintained that the first-instance court had refused to examine the evidence in question because of an erroneous conclusion that his statement could not be proven by calling the proposed witnesses. The refusal to take the evidence had not concerned the testimony of witnesses I.H. and M.K. The applicant further asserted that I.H. and M.K. had confirmed in their testimonies the claims he had made in his defence.

21 . The Court reiterates that as a general rule the admissibility of evidence is a matter for regulation by national law and appreciation by the domestic courts which assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003 ‑ V). As regards the right to obtain attendance and examination of “witnesses on behalf” of the defence, the Court clarified and restated the general principles in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 139, 144-49 and 158-67, 18 December 2018). In that case (§ 158), the Court formulated the following three ‑ pronged test for a situation where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law:

“1. Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation?

2. Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?

3. Whether the domestic courts ’ decision not to examine a witness undermined the overall fairness of the proceedings?”

22 . Turning to the present case, the Court observes that the applicant reasoned his request to examine S.V., P.O., F.S., V.O., I.D. and M.P. by referring to the information they allegedly had about certain incidents related to L.V. ’ s criminal activities and his responsibility for crime in Koper (see paragraph 5 above). The Court could thus accept that under the circumstances, the request to examine the aforementioned witnesses might be relevant to the subject matter of the accusation. However, as the applicant himself confirmed at the hearing before the first-instance court, he had based his impugned statement on the information that had been conveyed to him by M.K. and I.H. (see paragraph 5 above). The latter had both been examined at the hearing. In these circumstances and having regard to M.K. ’ s and I.H. ’ s testimonies and the result of the investigations which had been already carried out as regards the subject matter of the applicant ’ s impugned statement (see paragraphs 8 and 10 above), it would have been expected from the applicant to provide further reasons for the examination of the witnesses in question.

23 . As regards the reasons given by the domestic courts for their decision not to examine the six witnesses in question, the Court observes that the Koper District Court decided not to examine them at the hearing of 13 January 2012 (see paragraph 6 above). The trial records state that the court considered it unnecessary to summon these witnesses because it had already heard the witnesses (I.H. and M.K.) who had been, according to the applicant, the source of information he had then repeated in his incriminating statement.

24 . The issue was also dealt with in the Koper District Court ’ s judgment of 13 January 2012 (see paragraph 8 above). As is apparent from the reasoning provided in the judgment, the court again considered the testimony of witnesses S.V., P.O., F.S., V.O., M.P. and I.D. to be unnecessary as they were to testify about what I.H., M.K. and N.V., who had been examined in the proceedings (see paragraph 9 above), had allegedly told the applicant. The court in addition considered that further hearing of those witnesses was unnecessary because the incriminating statement was a value judgment whose truthfulness could not be proved. This assertion, which seems to have been endorsed also by the Supreme Court (see paragraph 12 above), cannot be accepted because the value judgments of this kind can be potentially justified by sufficient factual basis. However, the Court observes that the Constitutional Court took account of the lower courts ’ erroneous position on this point and went on to review the fairness of the proceedings in detail (see paragraph 13 above). Consequently, and considering the reasons the courts nevertheless provided with respect to the refusal to examine the witnesses in question and the conduct of the proceedings as a whole (see paragraphs 6 , 8 - 10 , 12 and 13 above), the Court finds that ultimately this assertion by the lower courts had no impact on the applicant ’ s defence rights. It reiterates that it is not the function of the Court to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

25 . What is important for the assessment of the applicant ’ s complaint is that the domestic courts dismissed his request to hear the additional six defence witnesses by a reasoned decision referring to, inter alia , the testimonies given by other two defence witnesses I.H. and M.K., who were – as alleged by the applicant himself – his source of information. The Court considers that the reasons given by the courts were therefore adequate, that is commensurate with the reasons advanced by the defence (see paragraph 22 above, and Murtazaliyeva , cited above, §§ 164-66).

26 . The Court would stress that the applicant, assisted by a professional lawyer, was able to conduct his defence effectively, comment without hindrance on the incriminating evidence and adduce evidence he considered relevant for his defence (see also paragraph 12 above). He was able to challenge his conviction at three levels of jurisdictions: before the Koper Higher Court, the Supreme Court and the Constitutional Court. The latter examined on the merits the applicant ’ s complaint concerning his defence rights. It, however, noted that in his constitutional complaint the applicant, in justifying his request for examination of the witnesses in question, had not referred to the same reasons as before the lower courts (see paragraph 13 above).

27 . Having regard to these considerations, the Court concludes that there is no appearance that the domestic courts ’ decision not to examine S.V., P.O., F.S., V.O., M.P. and I.D. undermined the overall fairness of the proceedings.

28 . It follows that the above complaint must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

29 . The applicant invoked Article 10 with respect to the refusal of domestic courts to hear six defence witnesses and argued that he had not been able to prove that he had substantial grounds to believe in the truthfulness of the impugned statement (see paragraph 15 above). The Court has already examined this complaint under Article 6 of the Convention and found that the applicant in fact had the opportunity to adduce the evidence relevant to his defence (see paragraphs 25 - 28 above). It finds no reason to hold otherwise here.

30 . Moreover, the applicant complained under Article 6, alone and in conjunction with Article 13 of the Convention, that the Constitutional Court had dismissed his constitutional complaint without giving him an opportunity to explain the alleged discrepancy between the reasons for requesting the examination of the six witnesses he had provided before the Constitutional Court and the reasons he had put forward in this respect before the lower courts. He argued that the lower courts had erroneously summarised his arguments in this respect. The Court observes that the applicant did not contest in his appeals the way his arguments had been presented in the courts ’ decisions but raised this issue only before the Court. The Court thus considers that the Constitutional Court, which could not deviate from the unchallenged findings of lower courts, gave appropriate reasons for dismissing the applicant ’ s request to hear the witnesses in question.

31 . It follows that the applicant ’ s remaining complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 June 2021 .

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President