Communicated on 25 August 2015

FIFTH SECTION

Application no. 38059/13 Matjaž SVETINA against Slovenia lodged on 5 June 2013

STATEMENT OF FACTS

The applicant, Mr Matjaž Svetina , is a Slovenian national, who was born in 1982 and lives in Koper . He is represented before the Court by Mr B. Gvozdić , a lawyer practising in Sežana .

A. The circumstances of the case

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

On the morning of 5 November 2007 X was found dead near the local road Komen – Branik, close to the town of Komen. He had been repeatedly stabbed and cut with a knife and then run over by a car. The police were called to the scene, as were the district state prosecutor and the duty investigating judge.

On examining the crime scene, the police found X ’ s mobile telephone in his car and examined all the incoming and outgoing calls as well as the text messages sent to and from the victim ’ s telephone number. One of the messages was of an explicitly sexual nature, and since it appeared that X might have had sexual intercourse before death, the police checked the telephone directory to find that that particular telephone number was registered to the applicant ’ s grandmother. Furthermore, having been informed that X ’ s mobile telephone had been found, the district state prosecutor requested the duty investigating judge to order the relevant telephone company to produce records of telephone calls and text messages from the telephone pursuant to Section 149b (1) of the Criminal Procedure Act (hereinafter “the CPA”) . The duty investigating judge granted the prosecutor ’ s request and at 19:40 the same day handed over the order directly to one of the criminal investigators.

Based on their discovery that the applicant ’ s grandmother was listed as the owner of the telephone number from which the text message with sexual content had been sent, the police acquired data from the central register of population on who lived in her household and what cars they were using.

On the morning of 6 November 2007 the applicant was stopped while driving his grandmother ’ s car. The police officers conducted a security search of him and the car, whereby they found and seized a knife bearing traces of what could be blood and a mobile telephone. They checked the calls and text messages sent to and from the device and found that among the numbers to which messages were sent was the number of X ’ s mobile telephone. The police officers then arrested the applicant and took him for questioning where he remained silent. Subsequently the investigating judge issued an order for the records of telephone calls and text messages from the applicant ’ s mobile telephone to be produced.

In the course of the investigation, an imprint was found on X ’ s back in addition to multiple stab and cut wounds and extensive bruising later found to be caused by car tyres. Also, there was a biological trace belonging to the applicant found on the deceased ’ s body and the latter ’ s blood on the applicant ’ s jeans. The examination of the applicant ’ s car showed several dents under the front bumper and traces of X ’ s blood were found on the bottom of the chassis. Moreover, a part of a rubber tube found at the scene of the crime matched the tube belonging to the applicant ’ s car. The applicant acknowledged having met X earlier on the day of the murder and having had sexual intercourse with him. They had agreed to meet again later that day, but when the applicant had arrived at the designated place, he had found X dead. According to the applicant, he had stepped out of the car and checked to see that X was no longer breathing; however, since he had forgotten to pull the hand brake, the car had moved, run over X ’ s body and wedged him between the front and back wheels. Not wishing to move X ’ s body in order to extract him from under the car, the applicant had moved the car forward and run over X also with the back wheels. In this connection, two experts who performed the reconstruction of the applicant ’ s car ’ s movements confirmed that X had been run over by that car. However, they were of the view that, considering the position of X ’ s body and his car and the steepness of the terrain, the applicant ’ s version of events was not credible. In the experts ’ view, the applicant had accelerated quickly and run over X by both sets of wheels, whereupon his body had been moved.

Following the investigation and the ensuing charges, the applicant was put on trial for murder. On 10 June 2008 the Koper District Court found him guilty, concluding that he had stabbed and cut X and then run over him with his car.

On 12 December 2008 the Koper Higher Court, on appeal by the applicant, quashed the first-instance judgment, finding that the lower court had failed to clarify the facts surrounding the possible imprint of a shoe on the victim ’ s back which could indicate the presence of a third person at the scene of the crime. The case was remitted to the Koper District Court for a fresh examination.

In the retrial proceedings, the applicant requested all documents containing evidence collected from the time that the police inspected the crime scene until the final hearing in the previous proceedings to be excluded from the trial. He argued in this connection that, since X ’ s mobile telephone had been searched by the police without the necessary court order, the ensuing security search of himself and his car during which his mobile telephone had been found lacked sufficient legal basis. Likewise, the search of his own telephone had been unlawful and constituted a violation of his constitutionally gu aranteed right to the privacy of communication.

T he Koper District Court rejected the applicant ’ s request, stating that while the police search of his mobile telephone without a court order violated his right to communication privacy, it had little evidentiary value; namely, the police had already acquired information about the communication between X and the applicant from the former ’ s mobile telephone. As regards the search of X ’ s telephone, however, the district court took the view that it did not interfere with the applicant ’ s communication privacy. Moreover, the district court considered that, contrary to the applicant ’ s assertion, no circumstances existed which would raise any doubts as to the lawfulness of his arrest.

The district court heard a number of witnesses including two medical experts, two transport experts and a police officer, but refused the applicant ’ s request for the report on the search of his mobile telephone to be obtained. The district court explained that, since his telephone had been searched without a court order, the report thereon constituted inadmissible evidence which could not be produced at the trial. On the same basis, the district court refused to hear the police officer who had stopped the applicant, seized and searched his mobile telephone and then arrested him.

Furthermore, the district court attempted to clarify whether one of the bruises on X ’ s back was an imprint of a working shoe which did not match the shoes worn by the applicant on which X ’ s biological traces were found. While the forensic pathologist was not convinced that the bruise in question had been caused by the heel of a shoe, the expert in forensic science argued to the contrary. In view of these conflicting testimonies and considering that it was not possible to exclude the presence of another person at the crime scene, in addition to which the knife with which X had been stabbed and cut had not been found, the Koper District Court held that there was insufficient proof that the applicant had stabbed and cut X. Nevertheless, in the district court ’ s view, it was not even necessary to establish who had delivered the stab and cut wounds to X. Namely, assessing all the evidence, the district court found that the injuries to X ’ s chest, spine and aorta, which were the direct cause of his death, had been delivered by the applicant ’ s having intentionally run him over with his car.

On 4 September 2009 the Koper District Court convicted the applicant of having murdered X in a cruel or atrocious manner and sentenced him to twelve years of imprisonment.

The applicant appealed, arguing, inter alia , that the police had searched X ’ s and his own mobile telephone without the necessary court order. He maintained that the police ’ s suspicion had only focused on him after they had unlawfully acquired access to the data on X ’ s mobile telephone. While the search of that device may not have violated his right to privacy, it was still unlawful. Moreover, the unlawful search of the applicant ’ s own mobile telephone provided the police with the crucial information on who had communicated with X on the day of the murder and thus with the basis for his arrest and house search. The applicant asserted that the investigating judge had used the information acquired from his telephone to justify the ensuing house search during which further incriminating evidence had been found. In this connection, the applicant emphasised that pursuant to Section 18 (2) of the CPA the court should not base its decision on evidence obtained in violation of human rights, and that regardless of whether his own rights or those of another person had been violated, nor should the decision be based on evidence obtained in violation of the rules of criminal procedure. Thus, relying on Section 371 of the CPA, the applicant argued that the first-instance judgment was tainted by a substantial violation of his procedural rights.

Moreover, the applicant maintained that, since the conclusion of the forensic pathologist regarding the bruise on X ’ s back had been disputed by the forensic science expert, also his other conclusions were called into question and necessitated another expert to be appointed. Further, the applicant challenged the conclusions of the transport experts regarding the running over of X, reiterating that while he had run over X, he had not done so intentionally; also, he had been convinced that X had already been dead. Likewise, he challenged the conclusions of the experts in psychiatry and psychology who had assessed him to suffer from a borderline personality disorder, but did not consider that this condition had impaired his judgment at the time of X ’ s murder. Finally, the applicant claimed that he should not have been convicted of murder, arguing in this respect that, even if not for the running over, X would have died from the stab and cut wounds. In this connection, the applicant also alleged that his act of running over X did not constitute murder with extreme cruelty or atrocity, as there was no evidence that X had suffered extreme physical and psychological trauma.

On 27 January 2010 the Koper Higher Court upheld the applicant ’ s appeal in part and reduced his sentenced to nine years in prison. The higher court agreed with the applicant that the act of which he had been convicted, that is the running over of X with his car, did not in itself constitute murder with extreme cruelty or atrocity, as the first-instance court had not established any circumstances showing that X had sustained severe physical pain or psychological suffering.

However, all the other applicant ’ s complaints, including the one regarding the unlawful search of his and X ’ s mobile telephone, were dismissed. With regard to the latter complaint, the higher court acknowledged that the applicant had been identified and apprehended on the basis of the telephone number found in X ’ s telephone. However, the higher court took the view that X ’ s telephone communication had not been searched without a court order. Noting that on the day that the telephone had been found the district state prosecutor had requested X ’ s telephone records, and the duty investigating judge had issued the requested order, the higher court held that the mere fact that the police officers had not waited for the records to be produced by the telephone company, but had instead searched the device themselves, was not of decisive importance. In the higher court ’ s opinion, the search of the device had had to take place without delay, considering the possibility of it containing information which could lead to the clarification of X ’ s murder. The higher court thus concluded that, regardless of whether the police officers had searched X ’ s telephone before the issue of the order, what was crucial was that they had received the order for the telephone records to be produced before they had identified and located the applicant. Therefore, the search of X ’ s mobile telephone had not been conducted in violation of his constitutionally guaranteed protection of the privacy of communication.

As regards the search of the applicant ’ s mobile telephone, the higher court considered that it was primarily the text message discovered in X ’ s mobile telephone that focused the investigation on the persons living in the applicant ’ s grandmother ’ s household. Moreover, once the applicant had been stopped by the police, they had found a knife in his possession bearing traces of what could be blood. The applicant ’ s arrest and the ensuing house search had thus been conducted as a result not only of his mobile telephone number, but also of the stain on the knife which made the police suspect that it could have been the weapon used to stab and cut X. Further, as regards the search of the applicant ’ s mobile telephone, the higher court pointed out that the telephone number could be traced on the basis of the serial number of the SIM card placed inside the device. According to the higher court, the telephone number itself could thus be found without searching the contents of the communication and, consequently, without interfering with the applicant ’ s privacy of communication. The higher court reminded in that respect that Section 149b (3) allowed the police to obtain information on the identity of the owner or user of a certain means of electronic communication even without his or her consent. In view of this fact, the higher court considered that the acquisition of the applicant ’ s mobile telephone number, which was another reason on which the request for the house search had been based, had not been unlawful. It thus concluded that the violation of the applicant ’ s right to privacy of communication, as established by the first-instance court, had no causal link with the institution of criminal proceedings against the applicant and, consequently, the first-instance judgment was not based on inadmissible evidence.

Finally, the higher court dismissed the applicant ’ s complaints with regard to appointing new experts in forensic medicine, psychiatry and transport, explaining that, even assuming that the forensic pathologist had erred in his opinion as to the origin of the bruise, it did not mean that all of his conclusions should have been disregarded. The higher court reached a similar conclusion in respect of other experts, disproving the applicant ’ s arguments and explaining in detail that their conclusions were not undermined by his doubts as to certain specific points in their opinions.

The applicant lodged an appeal on points of law, reiterating the arguments he had raised in his appeal. With regard to the search of the mobile telephones he maintained that, notwithstanding the fact that court orders had been obtained subsequently, both mobile telephones had been searched before the requisite orders were issued, thus rendering all evidence obtained thereafter inadmissible. The applicant further claimed that the search of X ’ s mobile telephone, together with the information that the text message which had caught the interest of the police had been sent from a telephone number belonging to his grandmother, had not given the police a solid basis for his arrest. It was only the unlawful search of the contents of his own mobile telephone which justified the institution of criminal proceedings against him. Finally, the applicant criticised the higher court ’ s argument that a telephone number could be traced through the SIM card and that information on the identity of a telephone owner or user could be lawfully retrieved without a court order. He pointed out that in his case, the police had not collected evidence by means of the telephone ’ s SIM card, but had unlawfully searched the contents of his communication.

On 22 December 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law. Firstly, as regards the police search of X ’ s mobile telephone, the Supreme Court, while not excluding the possibility that the search of a deceased ’ s person telephone might affect the most intimate spheres of his or her dignity, considered that in the case at hand, it had not interfered with X ’ s right to privacy, as personality rights ceased at death. Consequently, neither had the applicant ’ s own constitutionally guaranteed privacy rights been interfered with, as the search had not revealed his identity and the police had not obtained any other information which they should not have obtained. Moreover, the district state prosecutor and the duty investigating judge had been present at the scene of the crime when the police had discovered the telephone in X ’ s car. In this connection, the Supreme Court pointed out that the applicant had not even argued that the search of X ’ s telephone had directly violated his own right to privacy. The Supreme Court supported the reasoning given by the Koper Higher Court that what was relevant was that the court order for the search of X ’ s telephone had been issued before the police had identified and arrested the applicant. In the Supreme Court ’ s view, both the text message sent by the applicant and the telephone number from which it had been sent would have been discovered in any event, that is even if the police had waited for the court order to be issued. Thus, the Supreme Court did not accept that the police ’ s search of X ’ s mobile telephone , which had not interfered with the applicant ’ s right to privacy, constituted a violation which was necessarily causally related to the acquisition of incriminating evidence against him, and would accordingly require their exclusion.

Secondly, with regard to the police ’ s search of the applicant ’ s mobile telephone, the Supreme Court confirmed the views of the lower courts that it had been unlawful. However, reaching a similar conclusion to that reached in respect of X ’ s telephone, the Supreme Court observed that the information on whether the text message with sexual content had been sent from the applicant ’ s telephone would have inevitably been discovered, either by a simple call to the number from which the message had been sent or by checking the applicant ’ s telephone ’ s SIM card for which no court order had been necessary or by waiting for the court order to be issued. In view of this conclusion, the Supreme Court considered that, regardless of the fact that the police had searched the applicant ’ s telephone without the court order, the identification of the applicant ’ s mobile telephone number as the one from which the text message in question had been sent did not constitute inadmissible evidence which should be excluded from the case-file.

Finally, also the applicant ’ s other complaints with regard to the errors made by the forensic pathologist and the transport experts in their expert opinions, as well as to the lacking reasoning as to his guilt, were dismissed.

The applicant lodged a constitutional complaint, reasserting the allegations made in his previous appeals.

On 28 January 2013 the Constitutional Court rejected the complaint as entailing neither a violation of human rights or fundamental freedoms which would have had significant enough consequences nor an important constitutional question which would exceed the importance of the concrete case.

B. Relevant domestic law

Article 38 of the Slovenian Constitution guarantees the privacy of correspondence and other means of communication and reads as follows:

“ The privacy of correspondence and other means of communication shall be guaranteed.

Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where such is necessary for the institution or course of criminal proceedings or for reasons of national security. ”

As regards the protection of the privacy of communication in the criminal proceedings, Section 18 of the Criminal Procedure Act (hereinafter “the CPA”) provides that the courts may not base their decisions on evidence obtained in violation of human rights and fundamental freedoms provided by the Constitution, nor on evidence which were obtained either in violation of the provisions of criminal procedure or on the basis of such inadmissible evidence.

A judgment based on such inadmissible evidence may be challenged on appeal on the grounds of a substantial violation of provisions of the criminal procedure. In this connection, Section 371 of the CPA provides as follows:

“ (1) A substantial violation of provisions of the criminal procedure shall be deemed to exist:

...

8) where the judgement rests on evidence obtained in violation of constitutionally granted human rights and fundamental freedoms, or on evidence on which, under the provisions of this Act, a judgement may not rest, or on evidence obtained on the basis of such inadmissible evidence;

...”

Moreover, the conditions under which information on electronic or telecommunication may be obtained for the purpose of criminal investigation are provided in Section 149b of the CPA, which provides as follows:

“(1) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed, is being committed or is being prepared or organised, and information on communications using electronic communications networks needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the investigating judge may, at the request of the public prosecutor adducing reasonable grounds, order the operator of the electronic communications network to furnish him with information on the participants and the circumstances and facts of electronic communications, such as: the number or other form of identification of users of electronic communications services; the type, date, time and duration of the call or other form of electronic communications service; the quantity of data transmitted; and the place where the electronic communications service was performed.

(2) The request and order must be in written form and must contain information that allows the means of electronic communication to be identified, indication of reasonable grounds, the time period for which the information is required and other important circumstances that dictate use of the measure.

(3) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed or is being prepared, and information on the owner or user of a certain means of electronic communication whose details are not available in the relevant directory, as well as information on the time that the means of communication was or is in use, needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the police may request that the operator of the electronic communications network furnish it with this information, at its written request and even without the consent of the individual to whom the information refers.

(4) The operator of electronic communications networks may not disclose to its clients or a third party the fact that it has given certain information to an investigating judge (first paragraph of this section) or the police (preceding paragraph), or that it intends to do so.”

COMPLAINTS

The applicant complains under Article 8 of the Convention that in the criminal proceedings against him the police unlawfully searched the mobile telephone belonging to a murder victim and his own mobile telephone and thereby violated the right to respect for his private and family life and privacy of communication.

Moreover, relying on Article 6 § 1 of the Convention, the applicant alleges that the use in the criminal proceedings of the evidence obtained through the searches of the victim ’ s and his own mobile telephones violated his right to a fair trial.

QUESTIONS TO THE PARTIES

1. Did the search of the mobile telephone belonging to the victim of murder interfere with the applicant ’ s right to respect for his private life and correspondence , within the meaning of Article 8 § 1 of the Convention?

If so, was that interference lawful and necessary in terms of Article 8 § 2?

2. As regards the search of the applicant ’ s mobile telephone, can the applicant still claim to be the victim of a violat ion of his rights under Article 8 within the meaning of Article 34 of the Convention, considering that the domestic courts acknowledged that the search had been unlawful (see, mutatis mutandis , Petrov v. Russia (dec.), no. 12097/05, §§ 28-30, 22 October 2013, and the references cited therein)? Did the applicant obtain sufficient redress for the search found to be unlawful and, if not, are there any reasonable opportunities for him to obtain such redress before the domestic authorities?

If the applicant can still be considered a victim under the Convention, do the specific circumstances in which his mobile telephone was searched amount to a violation of Article 8?

3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

In particular, did the alleged use at his trial of evidence obtained through the searches of the victim ’ s and his own mobile telephones satisfy the requirements of fairness guaranteed by this provision?