FOURTH SECTION

DECISION

Application no. 7189/14 Velibor POPOVIĆ against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 10 April 2018 as a Committee composed of:

Vincent A. De Gaetano, President, Georges Ravarani, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 16 January 2014,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Velibor Popović, is a Montenegrin national who was born in 1977 and lives in Paris. He was represented before the Court by Janez Stušek, a lawyer practising in Celje.

2 . The Slovenian Government (“the Government”) were represented by their Agent, Ms B. Jovin Hrastnik, State Attorney.

A. The circumstances of the case

1. Arrest and criminal proceedings

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

4 . On an unspecified date the applicant came to Slovenia, but was arrested by the police and placed in pre-trial detention on 15 May 2012. According to the applicant he had no criminal record at the time, nor any history of violent behaviour.

5 . On 19 October 2012 the Kranj District State Prosecutor ’ s Office issued an indictment against the applicant and three other persons for the aggravated offence of illegal trade in weapons, which is punishable by one to ten years ’ imprisonment. The applicant was accused of having ordered a large quantity of firearms (seventeen automatic rifles and nineteen handguns, together with a substantial amount of ammunition), while his three co-defendants were accused of having organised the transportation of the weapons.

6 . On 30 January 2013 the applicant was transferred from Maribor prison to Ljubljana prison. The next day the security assessment that was conducted concluded that a high risk of absconding existed for several reasons.

7 . On 11 January 2013 a pre-trial hearing was held before the Kranj District Court. The first hearing on the substance of the case was held on 8 March 2013. According to the applicant, he and two of his co-defendants ‒ who remained in pre-trial detention throughout the proceedings ‒ were brought to the hearings accompanied by six judicial police officers in protective jackets armed with semi-automatic rifles. He alleges that he was brought before the district court in both handcuffs and ankle-cuffs. Although his handcuffs were removed during the court sessions, the ankle ‑ cuffs were kept on him.

8 . According to the minutes of the hearing, the applicant ’ s counsel pointed out on 15 March 2013 that the principle of the presumption of innocence had been violated by the use of ankle-cuffs on the applicant. In support of his submission, the counsel cited a number of cases from the case-law of the European Court of Human Rights. He also pointed out that the applicant was not violent and that there was no risk that he would attempt to escape from the courtroom. Finally, he argued that grounds for detention should not be equated with reasons for using the measure of hand ‑ and ankle-cuffing. The applicant ’ s counsel requested that the applicant not be restrained in the courtroom at subsequent hearings. The trial judge recorded the above argumentation in the minutes and noted that all three defendants ’ feet were indeed cuffed. The applicant ’ s counsel then went on to adduce evidence.

9 . At the end of the hearing of 22 March 2013 the applicant ’ s counsel asked that it be noted that the defendants were again cuffed; the observation was recorded in the minutes.

10 . Four more hearings were held on 26 April, 24 May, 9 July and 17 July 2013. According to the applicant, his ankles were cuffed during all of the hearings. He maintained that he had complained of it at every hearing. He did not submit the minutes of those hearings, however, because − according to him − the court had not recorded his complaints in the minutes of those hearings.

11 . In their observations the Government conceded that the applicant had complained about being restrained at the hearings of 15 March, 22 March and 26 April 2013. However, they contested the allegation that he had objected to being restrained at every other hearing. They argued that his complaint would have been recorded in the minutes of the hearings had this been the case. They also pointed out that the Criminal Procedure Act allowed the defendant and his lawyer not only to demand to read the minutes but also to demand that the content of those minutes be amended or rectified.

12 . Meanwhile, on 25 April 2013, Ljubljana prison informed the court that the applicant ’ s feet would remain cuffed during hearings since he had been assessed as presenting a risk of absconding (see paragraph 6 above).

13 . According to both parties, the applicant ’ s lawyer complained about his legs being cuffed at the hearing of 26 April 2013.

14 . On 19 July 2013 the applicant was found guilty of the aggravated offence of illegal trade in weapons and given an eight-year prison sentence.

15 . On 9 September 2013 the applicant appealed against the first ‑ instance judgment. Both parties asserted that he had not complained in his appeal about his legs being cuffed during hearings.

16 . On 17 April 2014 the higher court reduced the applicant ’ s prison sentence and dismissed the appeal in the remaining part.

17 . On 21 August 2014 the applicant lodged a request for the protection of legality with the Supreme Court. According to the Government , the applicant did not complain about his legs being cuffed during hearings. On 15 January 2015 the Supreme Court dismissed the request.

18 . On 20 April 2015 the applicant lodged a constitutional complaint against the Supreme Court decision of 15 January 2015. According to the Government, the applicant did not raise any objection concerning the use of physical restraints on him. From the parties ’ submissions it appears that, at the date of the latest information available to the Court (16 October 2015), the proceedings concerning the constitutional complaint were still pending. On 8 January 2018 the applicant ’ s representative sent a letter informing the Court that he would still be representing the applicant. In the letter he did not provide the Court with any information concerning further developments with regard to the constitutional complaint.

2. Administrative dispute proceedings

19 . Meanwhile, on 24 May 2013, the applicant had lodged an administrative action against the State for unlawful interference with his constitutional rights to personal dignity, equal protection of rights, judicial protection and the principle of the presumption of innocence before the Administrative Court. He had also lodged a request for an interim injunction prohibiting the judicial police officers from restraining him in the courtroom.

20 . The Prison Administration, as the respondent party, argued that the applicant had been assessed as posing a serious risk of absconding, that the charges against him could lead to a lengthy prison sentence, that he was a member of an organised crime group and that he was not a Slovenian citizen. The Prison Administration was thus of the view that the measures of restraint used to prevent the applicant from absconding were lawful, justified and proportionate.

21 . On 31 May 2013 the Administrative Court rejected the applicant ’ s action and request for an interim injunction, holding that his complaint was not about being restrained during transport from the detention centre to the court but solely about the fact that he had remained restrained during the trial hearings. It noted that it did not have the power of judicial review over the work of a criminal court and the manner in which the constitutional rights were protected by such courts.

22 . The applicant appealed against the decision before the Supreme Court. On 4 July 2013 the Supreme Court granted the applicant ’ s appeal in part, holding that the Administrative Court should have examined his complaint with regard to the use of physical restraints during transport. However, as regards the restraints used during the hearing, the Supreme Court concurred with the view expressed by the Administrative Court that the Criminal Procedure Act provided a sufficient basis for criminal courts deciding this issue and that the organs of administrative justice were not empowered to exercise judicial review over the decisions of criminal courts.

23 . On 21 May 2014 the Administrative Court rejected the administrative action for the second time. It held that in the action it could not find a part where the applicant was complaining about the conditions of transport to and from the court.

24 . On 11 June 2014 the applicant appealed against the above decision. From the parties ’ submissions and the documents attached to them it appears that, at the date of the latest information available to the Court (16 October 2015), the administrative proceedings were still pending. On 8 January 2018, the applicant ’ s representative sent a letter informing the Court that he would still be representing the applicant. In the letter he did not provide the Court with any information concerning further developments with regard to the administrative proceedings.

B. Relevant domestic law

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

Section 370

“A judgment may be challenged:

1) on the grounds of substantial violation of the provisions of criminal procedure; ...”

Section 371

“...

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

26 . The relevant parts of section 299 and 315 of the Criminal Procedure Act read:

Section 299

“(1) The presiding judge shall conduct the hearing, shall grant the parties, the victim, the statutory representatives, the authorised representatives, the defence lawyer, the expert and the members of the bench the right to address the court, and shall question the defendant, the witnesses and the experts.

...

(3) Decisions concerning requests from the parties shall be made by the presiding judge if it is not the bench which decides them.

(4) Decisions shall be made by the bench concerning requests over which the parties disagree and concerning requests over which the parties agree but to which the presiding judge does not consent. The bench shall also make the decisions concerning objections against measures issued by the presiding judge relating to the conduct of the hearing.

(5) The decisions reached by the bench shall always be declared and recorded in the minutes of the hearing, together with a brief reasoning.”

Section 315

“(1) The minutes must be completed at the end of the hearing. They are to be signed by the presiding judge and the typist.

(2) The parties shall have the right to check the completed minutes and attachments thereto, to comment on their content and to demand that they be corrected.

...

(4) Comments and requests from the parties concerning the minutes and corrections and amendments to the minutes are to be noted at the foot of the completed minutes. Reasons for refusing requests and related comments are also to be recorded there. ...”

27 . The relevant parts of section 82 of the Criminal Procedure Act read as follows:

“(1) A person who has been heard, persons who must be present at procedural acts, the parties, the defence lawyer and the victim, if they are present, shall have the right to read the minutes or to ask that they be read to them. The person conducting the procedural act must advise them about the said right and record in the minutes whether they have been given such advice and whether the minutes were read to them ...

...

(7) If anyone objects to the contents of the minutes, those objections shall also be recorded in the minutes.

...”

COMPLAINTS

28 . The applicant complained under Articles 3, 6 § 2 and 8 of the Convention that in the criminal proceedings against him he had been brought to trial hearings in hand- and ankle-cuffs and that the latter had not been removed during the hearings. These measures had humiliated him and violated his personal dignity; moreover, they had not been necessary, as he had not posed any risk of absconding or causing injury or damage. Furthermore, the applicant maintained that the physical restraints had constituted a violation of his right to the presumption of innocence as he had been made to appear as a guilty person in the eyes of the judges.

29 . Finally, the applicant alleged that he had not had any effective remedy at his disposal by which to challenge the use of the restraining measures, in breach of Article 13 of the Convention.

THE LAW

A. Alleged violation of Article 6 § 2 of the Convention

30 . The applicant complains that his rights under Article 6 of the Convention have been violated as he was brought before the judges in hand ‑ and ankle-cuffs and as his legs remained cuffed during hearings.

Article 6 of the Convention reads, in relevant parts, as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

31 . The Government submitted that the applicant had failed to exhaust the domestic remedies, since he had not raised this complaint in his remedies against the judgment of 19 July 2013.

32 . The applicant disagreed. He argued that the question of the excessive use of restraining measures was not linked to the correctness of the judgment. This question would therefore not have been considered by the higher court even if he had raised it.

33 . The Court reiterates that the presumption of innocence is one of the elements of a fair criminal trial required by Article 6 § 1 (see, among others, Yassar Hussain v. the United Kingdom , no. 8866/04, § 19, ECHR 2006 ‑ III) and that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey , 16 September 1996, § 71, Reports of Judgments and Decisions 1996 ‑ IV).

34 . The Court notes that the domestic law expressly allows for the possibility of challenging a judgment when a substantial violation of the provisions of criminal procedure has allegedly been committed (see paragraph 25 above).

35 . In the present case, in his app eals against the judgment of 19 July 2013 (see paragraph 15 above), the applicant failed to complain about the alleged failure to respect the procedural guarantees of his right to the presumption of innocence in so far as the latter could have been violated by the cuffing of his legs.

36 . Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Alleged violation of Articles 3 and 8 of the Convention

37 . The applicant complained that his rights under Articles 3 and 8 of the Convention had been violated because hand- and ankle-cuffs had been used on him when he was brought to the court, the latter being left in place during hearings.

These provisions, in so far as relevant, read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private ... life ...

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.”

38 . The Government argued that the applicant had failed to exhaust the remedies that were available to him under Slovenian law because he had failed to complain about the use of restraints during hearings in the criminal proceedings and the administrative complaint proceedings concerning the use of these restraints during transportation between court and prison were , on 16 October 2015, still pending (see paragraph 24 above).

39 . In any event, according to the Government, no interference with the applicant ’ s rights under Articles 3 and 8 had occurred.

40 . The applicant alleged that he had complained at every hearing about the use of restraints, but that this had not been recorded in the minutes of the hearings (see paragraph 10 above). In his opinion, the restraining measures applied during both transportation and the hearings themselves should be considered as a single and continuous violation of his rights, and no effective remedy had been available to him.

1. Transport to the hearings

41 . The Court notes that the applicant complained about the alleged unlawful interference with his constitutional rights before the Administrative Court (see paragraph 19 above). In its decision of 4 July 2013 the Supreme Court held that the Administrative Court should pronounce i tself on the applicant ’ s complaints in connection with the alleged infringement of his rights during transportation between the prison and the court (see paragraph 22 above). It appears that the above proceedings were, at the date of the latest information available to the Court (16 October 2015), still pending (see paragraph 24 above).

42 . It follows that this part of the application must be rejected as premature pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Use of restraints during the hearings

43 . It must first be determined whether the applicant complied with the six-month requirement imposed by Article 35 § 1 of the Convention. The Court has repeatedly held that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion, even if the Government have not raised that objection (see Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 29, 29 June 2012).

44 . In assessing whether an applicant has complied with Article 35 § 1, it is important to reiterate that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009).

45 . Turning to the present case, the Court notes that under the applicable domestic law it is the duty of the presiding judge to conduct the hearing and to reach decisions concerning the parties ’ requests (see paragraph 26 above). It was therefore for the court to decide as to the applicant ’ s objections concerning the restraints.

46 . The Court also notes that the hearings at which the applicant protested or noted that the restraints had been left on him were held on 15 March, 22 March and 26 April 2013 (see paragraphs 8 - 11 above). His protests were recorded in the minutes of the h earings held on 15 March and 22 March 2013, copies of which the applicant submitted to the Court (see paragraphs 8 and 9 above). The Court further observes that the domestic law provides for a remedy that can be used to rectify contents of minutes (see paragraph 27 above). In such circumstances, the Court considers that the applicant has not shown that he indeed protested against being restrained after the hearing of 26 April 2013. He lodged his application with the Court on 16 January 2014.

47 . Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

C. Complaint under Article 13 of the Convention

48 . The applicant considered that he did not have at his disposal any effective remedy by which to challenge the use of the restraining measures.

He invoked Article 13 of the Convention, which 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.”

49 . T he Court reiterates that Article 13 of the Convention requires a remedy in domestic law only where an individual has an “arguable claim” that one of his or her rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). However, given its above findings, according to which the applicant ’ s complaints under Articles 6, 3 and 8 of the Convention are inadmissible for non-exhaustion of domestic remedies, for being premature or for having been introduced out of the time (see paragraphs 36 , 42 and 47 above), the Court considers that h is related complaint under Article 13 of the Convention cannot be considered “arguable” within the meaning of the Court ’ s case-law. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 May 2018 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President