Communicated on 23 May 2017

FOURTH SECTION

Application no 49670/13 Naim KUKAJ against Slovenia lodged on 30 July 2013

STATEMENT OF FACTS

1 . The applicant, Mr Naim Kukaj , is a Serbian national, who was born in 1975 and is detained in Mirna na Dolenjskem . He is represented before the Court by a law firm, ÄŒeferin and partners, based in Grosuplje , Slovenia.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 27 December 2007 the applicant, together with eight other individuals (E.E., M.S., R.S., H.K., E.Ki ., E.Ka ., B.G. and Z.K.), was charged with the criminal offence of drug production and trafficking. The charges were brought by the public prosecutor D.K. who participated throughout the proceedings. The applicant was accused of participating in transporting drugs from Kosovo to Ljubljana, their storage and further transportation to Italy and Switzerland in 2006 and 2007. He was alleged to have, together with E.E., the highest rank in the drug trafficking organisation. Prior to the charges being brought, evidence was collected through a number of surveillance and undercover operations as well as searches of premises.

4 . More than sixty hearings were held before the Ljubljana District Court ’ s panel of five judges, including Judge Z.R. who chaired the proceedings. At the first hearing, held on 23 May 2008, the applicant requested that Judge Z.R. and other members of the panel be removed from the case as they had been acquainted with statements D.S.O. and A. B. had given before the Italian and Swiss authorities respectively. The applicant requested that these statements be excluded from the file. Judge Z.R. dismissed the appeal noting that the applicant ’ s counsel should have refrained from giving lectures to the court. This prompted the applicant to request again that Judge Z.R. step down on account of his lack of impartiality. At this hearing the applicant had also requested the court to exclude from the file the statements D.S.O. had given in his defence before the Italian authorities and without the applicant being able to cross-examine him, which was refused by the court.

5 . At the hearing of 30 May 2008 Judge Z.R. several times threatened the applicant ’ s counsel and the counsels of the co-defendants that he would sanction them and threatened a counsel of one of the co-defendants with disbarment, on account of their conduct of the defence.

6 . On 1 July 2008, being notified that one of the applicant ’ s co-defendants had excused his presence due to illness, Judge Z.R. allegedly remarked that he had ordered that the defendant be brought to the court if need be “tied up like a salami”.

7 . On 21 October 2008 the public prosecutor D.K. sent a reply email to Judge Z.R. advising him about the rules concerning the exclusion of evidence when such evidence was collected abroad and saying, inter alia , as follows:

“If I knew that you would make a problem out of something that was not a problem, I would have not sent you that judgment. Indeed brilliant, that you have announced that already early, without anyone even requesting that the evidence be excluded or that the panel step down.

I do not know why tomorrow they will request that the panel step down. Does all of the nine wait for K. [one of the counsels] to draw up the proposal for exclusion of the records.”

8 . On 6 November 2008 witness M.S. was examined by Judge Z.R. in Italy, in the presence of an Italian judge, M.S. ’ s counsel and the Slovenian public prosecutor (D.K.). During the examination, Judge Z.R. said the following to the witness M.S., who was unwilling to answer questions:

“Also due to my participation in these proceedings I have to walk around escorted. On top of that, you with your silence are protecting these people and I will do everything so that you will receive the highest sentence in Italy and Slovenia”.

After the examination of M.S., Judge Z.R. said the following:

“I would like to point out that the proceedings against E.E. and others are already at the stage of indictment, which is final and totally provable. The judicial proceedings concern hundreds kilos of heroin, these are very big quantities. This is part of the proceedings which concern acts taking place in Switzerland, Germany, Sweden and Italy ... At this moment, to have some general picture, this is one of the most extensive investigations concerning drugs in Europe. Because of the extensiveness of the investigation I am under the protection and seriously physically at risk. The defendants in the proceedings are under a special prison regime. Each of the defendants is being escorted by ten officers, which are armed with long guns. Exactly these people are being protected by [M.S.]. I suggest that the judicial authorities take account of this situation.”

9 . On 6 January 2009 the applicant requested that the court appoint an Albanian language expert with a view to proving that the word “ mekš ” was a generic name an therefore could have been used for anyone not only the applicant as alleged by the prosecution. The court rejected the request finding that, although in principle “ mekš ” was a generic name of diminutive meaning, it had been used as a nickname for the applicant according to the evidence in the file. The court went on to cite the evidence which in its view supported such a conclusion.

10 . On 24 April 2009 Judge Z.R. said to the applicant ’ s counsel that “it was unconceivable what defence rights the defendants had in the criminal proceedings in Slovenia”. Counsel subsequently requested that this remark be put on the record, but Judge Z.R. refused the request prompting the applicant ’ s counsel to make a comment to that effect at the end of the record.

11 . On 17 June 2009 the applicant made a number of requests to adduce evidence. The following requests were dismissed by the court.

- The applicant requested that information about the cars he had owned thus far be obtained from the Ministry of Interior with a view to proving that he had not owned a car used for drug trafficking, as falsely alleged by one of the witnesses. The court refused the request on 3 July 2009, noting that the ownership was not relevant as the applicant could have had cars in his possession without necessarily owning them.

- The applicant requested that a witness, B.B., be examined since witness F.M. who had testified that the applicant had been involved in drug trafficking had relied on B.B. ’ s out of court statement. The applicant alleged that there was no evidence that B.B. existed and even less that he had incriminated the applicant. The court rejected the request at the hearing of 3 July 2009. It explained that the applicant ’ s role in drug trafficking as indicated by F.M. had been proven by sufficient evidence, such as phone tappings , statements of other witnesses and data found on a drug courier ’ s mobile phone.

- The applicant requested that the court obtain information from police concerning a traffic accident which had taken place in March 2007. He also proposed that the court examine a witness who could testify that the applicant had intended to sell a certain car to B.G., who had ended up having an accident while test driving that car. This was meant to prove that the phone communication between the applicant and B.G., which was used as evidence in the proceedings, concerned the damages resulting from the accident and not drugs as alleged by the prosecution. The court refused the request, noting in its judgement that the recorded conversations concerned drug trafficking and that this finding was explained at large in the reasoning supporting the conviction. The court noted, as a way of example, that in the statements a certain A.K. was asking B.G. to “go to a shop for medicine” and “return money to the shop to [the applicant]” which, in the context of other evidence, obviously concerned drug trafficking and not the damages relating to the aforementioned accident.

- The applicant submitted a contract of sale for a certain property in Kosovo with a view to proving that the allegedly incriminating telephone conversations in fact concerned transactions related to that purchase. In this connection, the applicant proposed that a number of witnesses be heard. He submitted that these witnesses could testify about the applicant ’ s difficulties in meeting the obligations from the sale contract which should prove, on the one hand, that he had been in financial difficulties and thus unable to pay for the drugs as alleged, and that, on the other hand, the recorded conversations concerned the property sale and not the drugs. While the court accepted that the applicant had signed the aforementioned contract and also fulfilled some of its conditions, it did not consider the request for witnesses relevant to the outcome of the case, finding that the fact that the applicant had been engaged in some lawful activities did not undermine the charges. The court likewise noted that the fact that the applicant had had certain financial difficulties at the relevant time was not in question.

- The applicant proposed that a witness I.K. be examined in order to establish that the applicant ’ s business had in fact been concerned with a lawful car sale. This request, as well as the request from 18 September 2009, in which the applicant had proposed that I.K. and R.K. be examined in view of the modified incitement, was rejected. The court explained that it had no doubts that some of the applicant ’ s business activities had been legal. It found that further proof to that effect would not have been able to undermine the charges concerning the illegal activities which had an autonomous evidentiary basis.

12 . At a hearing on 25 August 2009 the court rejected the applicant ’ s request to hear a witness who should testify about a search of the car in which heroin had been found. The court explained that the search had been ordered and carried out in accordance with Italian legislation and therefore could not be considered unlawful.

13 . On 1 September 2009 the public prosecutor filed a modified bill of indictment in which the applicant and four other co-defendants were accused of having carried out certain new acts as part of the same collective criminal activity.

14 . At the hearing of 11 September 2009 the applicant requested that the modification of the bill of indictment be rejected. The court refused to decide on the request, explaining that the decision on that issue should be taken in the final judgment.

15 . Subsequently, hearings were held on 18, 22, 24 and 25 September 2009. On 18 September 2009 the applicant requested that L.R., I.K. and R.K. be cross-examined in view of the modified accusations. His requests were refused by the court.

16 . On 25 September 2009 the panel delivered its verdict following three–hour-long deliberations. The court found the applicant guilty of a criminal offence, the production and trafficking of drugs within a criminal organisation, under Article 196 § 2 of the Criminal Code. The court specified in the judgment that the aforementioned criminal offence had been committed through the applicant ’ s actions which had taken place during a number of different periods, with the applicant ’ s role being in most cases to organise the transport of large quantities of heroin from Kosovo to Slovenia, to distribute smaller quantities in Slovenia and to transport the majority of purchased heroin either to Italy or Switzerland. The applicant was sentenced to a fifteen-year prison term and a fine of 25,000 euros (EUR) as well as the seizure of illegally acquired profit to the amount of EUR 35,000.

17 . Three months later a written judgment amounting to 519 pages was sent to the applicant. The court explained in the judgment that the modification of the bill of indictment amounted to additional acts of participation in certain particular events which were part of the organised activity of the illegal production and trafficking of drugs, which took place in 2006 and 2007, and of which the defendants had been accused since the beginning. The court, referring to the Supreme Court ’ s jurisprudence, noted that the modification of the bill of indictment during the trail was permissible not only when new evidence came to light but also when, in view of the proceedings, the public prosecutor reinterpreted the existing evidence. The court went on to assess whether the modification of the bill of indictment had amounted to a malicious tactic. Having regard to, inter alia , the extensiveness of the case and the fact that the public prosecutor was in principle allowed to modify the bill of indictment until the end of the trial, the court found that she could not have been said to abuse her position. It furthermore found that all the evidence on which the modification was based had been accessible to the applicant for two years and that he had three weeks to respond to the modified bill of indictment. As regards the applicants request to cross-examine certain witnesses (see paragraph 15 above) the court found, inter alia , that L.R., when examined at the hearing, had denied any cooperation with the applicant and therefore his re ‑ examination would not have been able to provide more favourable outcome for the applicant. As regards I.K. and R.K., whom the applicant requested to be cross-examined in relation to the accusation that they had assisted the applicant in transporting vehicles to Kosovo, the court found, inter alia , that what the applicant argued to have been proven by this evidence, was in fact not relevant for the conviction and moreover noted that this accusation had been known to the applicant before the beginning of the trial as it had been included in the explanation of the initial bill of indictment.

18 . The applicant and his co-defendants appealed.

19 . On 16 December 2010 the Ljubljana Higher Court partly upheld the appeal finding that the allegations concerning the applicant ’ s purchasing of drugs, under one of the many counts, had not been proven. As regards the penalty imposed on the applicant, the court upheld the lower court ’ s decision. The court dismissed the remainder of the appeal, finding as follows:

- As regards the defendants ’ unsucc essful attempts to remove Judge Z.R., the higher court found that, though his behaviour might have been rough, he had acted within the limits of the Criminal Procedure Act. As regards his remark that the charges had been provable, the court noted that the bill of indictment had in fact been final at that time meaning that there had been a possibility that the allegation stated therein could be proven. The higher court found that there was no other indication of a lack of impartiality.

- Regarding the modification of the bill of indictment, the higher court noted that the modification had been concerned only with additional acts of execution which could not be qualified as a new criminal offence but were part of the criminal offence which the applicant had been initially charged with. The public prosecutor was entitled to modify the bill of indictment on the basis of a change in his subjective perception of evidence and the applicant was given enough time to prepare a defence regarding the modified charges. As regards the fact that none of the requested evidence was allowed following the modification of the bill of indictment, the higher court noted that the complaints concerning this aspect were so general that they could not be tested.

- Regarding the statement given by D.S.O. to the Italian authorities, the higher court noted that the defendants should have requested its exclusion from the file before the beginning of the hearing pursuant to the relevant provisions of the Criminal Procedure Act, but had failed to do so. In addition, the higher court found that the defendants had been able to cross ‑ examine D.S.O. at the hearing and had therefore had an opportunity to challenge the credibility of the impugned statement. It further agreed with the lower court that, given the remaining body of evidence, D.S.O. ’ s earlier statement given in Italy had been more credible than his testimony at the hearing.

- The higher court also addressed the applicant ’ s allegations concerning the lower court ’ s refusal to hear B.B. It noted, in addition to what had already been said by the lower court (see paragraph 11 above), that F.M. had in fact testified about things he had witnessed directly and had mentioned B.B. only as one of the other sources from which he had also heard about the applicant ’ s drug business – a fact which had, in any case, been supported by other material evidence in the file.

- The higher court addressed other complaints raised by the applicant dismissing them and upholding the reasons given by the lower court.

20 . The applicant lodged an appeal on points of law against the above judgment. On 14 February 2012 Supreme Court dismissed the appeal on points of law, upholding the Ljubljana Higher Court ’ s findings.

21 . On 28 January 2013 the applicant ’ s constitutional appeal was dismissed by reference to section 55b of the Constitutionals Court Act.

B. Relevant domestic law

22 . The second paragraph of section 55(b) of the Constitutional Court Act in force at the material time reads:

“(2) A constitutional appeal shall be considered:

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

- if it concerns an important constitutional question which goes beyond the importance of the actual case.”

COMPLAINTS

23 . The applicant complains in substance under Article 6 §§ 1 and 2 of the Convention that Judge Z.R. lacked impartiality in a subjective as well as objective sense and had shown to have been convinced about the applicant ’ s guilt before it was proven in the proceedings.

24 . The applicant submits also the following complaints under Article 6 of the Convention:

- The modification of the bill of indictment infringed his defence rights.

- He was not given a chance to have all his evidence examined and to prove that the allegedly incriminating evidence, in particular the telephone conversations, in fact concerned an entirely different context, namely lawful business activities.

- The court ’ s judgment is unsubstantiated and some conclusions in contradiction with the evidence in the file.

- The court should not have relied on the statements D.S.O. gave in his own defence in the criminal proceedings, which took place in Italy without the participation of the applicant.

- The search of a certain garage during which heroin was found in a car was unlawful and that the applicant ’ s conviction, based on this evidence, was also unlawful.

- His request to appoint an Albanian language expert to give an opinion on the meaning of the word “ mekš ” in one of the Albanian dialects was unfairly rejected.

QUESTION TO THE PARTIES

Having regard to the conduct of Judge Z.R. (see paragraphs 4-8, and 10 of the Statement of Facts), was the court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention and did it respect the presumption of innocence, guaranteed by Article 6 § 2 of the Convention (see, for instance, mutatis mutandis , Lavents v. Latvia , no. 58442/00, §§ 119 and 127, 28 November 2002)?