Communicated on 15 July 2016

FOURTH SECTION

Application no. 48790/15 Vesna ŠINKO and Slavka MILAKOVIĆ against Slovenia lodged on 30 September 2015

STATEMENT OF FACTS

The applicants, Ms Vesna Šinko (“the first applicant”) and Ms Slavka Milaković (“the second applicant” ), are Slovenian nationals who were born in 1961 and 1937 and live in Zgornja Besnica and Kranj respectively. They are represented before the Court by Mr M. Savnik , a lawyer practising in Kranj .

A. The circumstances of the case

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

On 16 April 2010 at around 3 p.m. the applicants, a daughter and mother, were involved in a car crash. Their car was driven by V.M., the father and husband of the applicants respectively. The first applicant ’ s 28-year-old daughter, Ms Sodnik , was also in the car, sitting with the first applicant on the back seat. The accident happened after B.K., who was driving too fast, crossed into their lane to avoid hitting a car in front of her and crashed into the applicants ’ car. V.M. died at the site of the crash. The first applicant suffered several injuries to her head, spine and leg, which was permanently deformed. The second applicant had a breathing tube inserted into her and was put in a medically induced coma. She sustained multiple bone fractures, had many operations and was released from hospital two months after the accident. Ms Sodnik fell into a persistent vegetative state (PVS) following the accident and died in 2015 due to complications of PVS.

On 17 October 2012 the Ljubljana District Court held a pre-trial hearing to which the applicants were not invited. At the hearing B.K. confessed to committing a criminal offence. At the same hearing a judgment was issued finding B.K. guilty of a criminal offence under Article 323 §§ 1 and 2 of the Criminal Code for causing a traffic accident by negligence, resulting in the death of one or more people. She was sentenced to one year and four months in jail, suspended for three years, and was disqualified from driving for six months. The judgment included a brief description of the car crash, stating that B.K. had been driving at a speed that had not allowed her to control her car properly and that she had therefore been unable to stop at a crossroads where another car had stopped in front of her. For that reason she had veered into the opposite lane and crashed into V.M. ’ s car. The judgment noted that V.M. had died of severe bleeding, but made no mention of the fact that the applicants and Ms Sodnik had been injured in the crash. Lastly, the judgment noted that the parties to the proceedings had waived their right to appeal and that no reasoning was therefore required. The judgment thus became final immediately.

On 26 April 2013 the applicants and Ms Sodnik lodged a constitutional appeal. They complained, inter alia , of a violation of their personal rights and of their right to dignity, judicial protection, equality before the law, and to a legal remedy. They argued that had they been recognised as injured parties in the criminal proceedings they would have had a better chance of success in civil proceedings for compensation. They also alleged that they had been denied the status of an injured party and therefore had not had the chance to participate in the criminal proceedings and to appeal against the judgment. They submitted that their injuries and suffering were not taken into account in the proceedings and the determination of the sentence, which had violated their dignity. The applicants argued in addition that the authorities had failed to protect their physical integrity because they had not punished the offending driver for the consequences they had suffered as a result of the crash. They pointed out that the authorities had had the whole system of criminal justice at their disposal, the very purpose of which was to establish the circumstances of a crime and the offender ’ s responsibility and to impose an appropriate punishment. Instead, the public prosecutor had reached a settlement with B.K., which the applicants appear to attribute to the fact that B.K. was an official at the State Attorney ’ s Office at the time.

On 30 March 2015 the Constitutional Court dismissed the applicants ’ constitutional appeal on two grounds. As far as the judgment of 17 October 2012 was concerned, the Constitutional Court found that the applicants did not have standing in the proceedings. As far as the actions of the public prosecutor were concerned, the Constitutional Court found that such conduct could not be classified as a decision open to challenge by way of a constitutional appeal.

The Constitutional Court ’ s decision was served on the applicants on 1 April 2015.

B. Relevant domestic law

The relevant provisions of the Criminal Code (official consolidated text, Official Gazette 50/2012), read as follows:

Article 323

“(1) A road user who negligently, by breaching road traffic regulations, causes a traffic accident in which a person is seriously injured, should be punished by a fine or up to three years ’ imprisonment.

(2) If the act of the preceding paragraph causes the death of one or more persons, the offender should be punished by up to eight years ’ imprisonment and disqualification from driving.”

Article 57

“...

(2) In handing down a suspended sentence, the court shall pass a sentence which will not be carried out unless the offender, within a term determined by the court, and which shall be not less than one and not more than five years (the period of suspension), commits a further criminal offence.”

Article 58

“(2) A sentence may not be suspended for criminal offences for which a prison sentence of a term of more than three years is prescribed by statute.

(5) If the offender confesses his guilt in accordance with the Criminal Procedure Act when responding to charges allowing for a suspended sentence in such a case, or confesses as part of a settlement with the public prosecutor, the court can pass a suspended sentence also for acts which carry a minimum sentence of five years ...”

The relevant provisions of the Criminal Procedure Act (official consolidated text, Official Gazette 32/2012), concerning pre-trial hearings read as follows:

Article 285.a

“(1) After an indictment becomes final, the president of the panel sets a date for a pre-trial hearing, where the accused should make a statement regarding his guilt and the proceedings. The parties to the proceedings and their representatives should be summoned to the hearing. As regards the summons and notifying the public of the hearing, the provisions relating to the main hearing should apply mutatis mutandis .

(2) Hearings should be recorded in writing and a transcript should be signed by all participants. ”

Article 285.c

“...

(4) When confessing his or her guilt, the accused can also make a statement on the injured party ’ s claim for pecuniary damages.

(5) After a confession has been accepted, the president of the panel invites the parties to put forward evidence to be examined at the sentencing hearing and to express their opinion as regards the composition of the sentencing panel and sets a date for the sentencing hearing ...

(6) Upon the parties ’ request and provided that the president of the panel considers that the relevant conditions have been met, the sentencing hearing can be conducted immediately after a confession has been accepted.

... ”

The following provisions concerning the main hearing are relevant in the context of Article 285.a above:

Article 288

“ (1) The accused, his counsel, the public prosecutor, the injured party and their representatives and interpreters should be invited to the main hearing.

(4) An injured party who has not been summoned as a witness should be informed that if he fails to appear at the hearing it will nevertheless be held and his compensation claim read out. ... ”

The following provisions concerning the sentencing hearing are relevant:

Article 285.č

“ (1) The sentencing hearing should be carried out by the same panel as at the main hearing where the charges were decided, unless the parties agree that it should be carried out by the president of the panel alone.

(2) An injured party not summoned as a witness and who has not been informed of his right to make a claim for compensation in the proceedings should be informed of his right to be present at this hearing and to pursue the rights to which he would be entitled at the main hearing. The court may inform the injured party of his right to make a compensation claim ahead of the pre-trial hearing.

(3) The hearing is held in public.

(4 ) ... Only evidence relevant to the sentence should be examined at the hearing. ”

COMPLAINTS

The applicants complain in substance under Article 2 of the Convention of the inadequacy of the criminal proceedings concerning the car accident in which they were severely injured and which caused Ms Sodnik to fall into a persistent vegetative state and consequently die in 2015. In particular, the applicants submit that they and Ms Sodnik were not mentioned as victims and that their injuries were entirely disregarded in the charges against the offending driver and in the ensuing judgment. The applicants submit that the offender was not held responsible for the consequences they and Ms Sodnik suffered. Moreover, the applicants maintain that they were not invited to the hearing and were unable to participate in the criminal proceedings against the offender.

QUESTION TO THE PARTIES

Did the State comply with its procedural obligation under Article 2 of the Convention (see Basyuk v. Ukraine, no. 51151/10, §§ 56-65, 5 November 2015, 13 November 2014; Krivova v. Ukraine, no. 25732/05, § 45, 9 November 2010; and Güleç v. Turkey, 27 July 1998, §82, Reports of Judgments and Decisions 1998 ‑ IV)?

In particular, the Government is requested to address the following issues:

- If an investigation into the traffic accident in question was carried out, did it concern all the victims, including the applicants and Ms Sodnik ?

- Were the applicants and Ms Sodnik able to participate in the investigation and/or proceedings aimed at determining the circumstances of the accident and who was responsible for it?

- Having regard to the fact that the judgment of 17 October 2012 makes no reference to the applicants and Ms Sodnik , have there been any other proceedings involving them?

The Government are requested to describe, in chronological order and in detail, how the investigation and proceedings relating to the car accident in question unfolded, and to produce copies of all the documents in the investigation file. The parties are also requested to provide information about any other proceedings instituted with respect to the car accident in question.