Communicated on 8 April 2015

FIFTH SECTION

Application no. 50142/13 Smako RASTODER against Slovenia lodged on 19 June 2013

STATEMENT OF FACTS

The applicant, Mr Smako Rastoder , is a Slovenian national, who was born in 1950 and is currently detained in the Dob prison. He is represented before the Court by Odvetniška Družba Čeferin , a law firm practising in Grosuplje .

A. The circumstances of the case

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

On 18 March 2006 the applicant intended to meet Š.A. in order to discuss the latter ’ s debt resulting from unpaid rent. Š.A. had been renting the applicant ’ s flat to accommodate a number of his workers, but had avoided paying the rent. Š.A. ’ s workers had subsequently vacated the flat, but failed to declare a change of residence. The applicant had requested Š.A. to pay the rent and regularise the residence of his workers.

In the afternoon, before the applicant set off to a bar where Š.A. ’ s workers met after work, he telephoned his son A.R. to come assist him in case he would have any trouble with them. It appears that the applicant also telephoned his younger son E.R. with the same request.

According to the statements given by the applicant during the investigation and the trial, he met Å .A. in a bar in the town of Izola at around 18.00; however, the meeting did not bring satisfactory results. Å .A. had allegedly told him that he would not pay the rent, that his workers would not register at another address and that the applicant would be beaten if he kept insisting.

The applicant further alleged that on coming out of the bar, he had been followed by ten to twelve of Š.A. ’ s workers. Š.A. and F.M. had started hitting him, while he was calling for help and trying to escape them. His sons, standing nearby, heard his cries and came to his aid. The applicant, an electrical fitter by profession, then took out his work knife and started to waive it around. He later explained that he did not know whom he had cut, but he remembered stabbing Š.A. in the back. At the trial, the applicant submitted that in pulling his knife, he acted in self-defence.

The applicant ’ s sons A.R. and E.R. claimed that their father had met with Š.A. and another person and that the fight started between the three of them, but when they came to help him, a number of other men approached and started beating them. Moreover, the applicant ’ s sons alleged that they were not carrying any knives themselves. According to them, E.R. defended himself with a wooden clothes hanger.

The three victims of stab wounds, Å .A., his brother in law F.M. and his cousin S.M., gave a different version of events.

According to F.M., he and S.M. had been sitting together in a bar. At one point he stepped outside to talk to two of his colleagues, I.B. and Å e.A . As the latter two were leaving, the applicant arrived with his sons and threatened him that he was a dead man. He then started to hit him with the handle of his knife, while F.M. tried to escape. At that moment, both S.M. and Å .A came out of the bar; the applicant and his sons attacked them, too, all three of them holding knives. While the applicant was beating him and stabbed him in the stomach, E.R. punched S.M., and A.R. attacked Å .A. The applicant then repeatedly stabbed Å .A. According to F.M., the victims had not been armed with any weapons.

S.M. gave a similar account, stating that he had come to a bar at around 19.00 and sat with his cousin F.M. The latter then went outside to meet his flatmates. A few moments later, there was some commotion outside and he went out to check what was happening. He saw the applicant attack F.M., and when he tried to separate them, the applicant ’ s son E.R. stabbed him in the neck and shoulder. Then he tried to run away, but the applicant stabbed him several times in the back.

Å .A. confirmed that he had been in a bar together with F.M. and S.M. Hearing about a fight outside, he stepped out to see what was happening. S.M. and F.M. were lying on the ground, the applicant stabbing his knife into S.M. He himself first tried to help F.M., but was attacked by A.R. who stabbed him in the chest and leg. When they both fell to the ground, the applicant came to help his son and stabbed him several times in the back. When Å .A. managed to stand up, he telephoned the police from his mobile phone.

A few hours after the events at issue, the applicant and his sons were detained by the police.

On 20 March 2006 all three of them were brought before the investigating judge and were heard in the presence of their legal counsels. After the questioning, the applicant was placed in detention on remand where he stayed until 16 May 2006.

On the same day, the district state prosecutor lodged an indictment against the applicant, E.R. and A.R. for attempted murders of Å .A., S.M. and F.M.

On 11 September 2008 the five-member panel of the Koper District Court including judge P.L.P. held the first hearing in the case. The defence requested the court to disqualify judge P.L.P. from the proceedings on the ground that she was not impartial, as she had previously worked for the injured parties ’ legal representative. Their motion was dismissed by the Vice-President of the court.

Another seven hearings were held on 25 September 2008, 27 November 2008, 29 January 2009, 19 February 2009, 10 April 2009, 29 May 2009 and 17 June 2009.

In addition to the testimonies given by the applicant, A.R. and E.R. and the victims S.M., F.M. and Å .A., the court questioned three witnesses who had been present at the scene of the incident.

A.Č. stated that the applicant had been in a bar talking peacefully to F.M. and another person. He had then stepped outside to make a telephone call. After him, Š.A. had also come out of the bar. A.Č. had noticed that the applicant and his sons, together with F.M. and another person, were standing a few metres from the bar. Š.A. had approached them and a few seconds later they had started to fight. According to A.Č., only those six people had been involved in the fight. A.Č. had not seen any weapons being held, but he had seen blood on Š.A. ’ s shirt. Also, the third victim (S.M.) had been holding his neck. Although the witness did not remember all the details regarding the fight which had flared up very quickly, he remembered that the applicant had fought with Š.A. A.Č. stated that he had called to his acquaintance M.H. to telephone the police.

M.H., another witness, made contradictory statements as to how the events had taken place. Before the investigating judge he stated that he had heard that a fight broke out in front of the bar where he was with A.Č. and he stepped outside to see what was happening. According to M.H., the applicant and his sons were the weaker party in the fight until the applicant pulled out a knife and attacked Š.A., F.M. and S.M. with it. M.H. further stated that he did not see any knives being pulled by the applicant ’ s sons. However, at the hearing, M.H. changed his statement and alleged that the fight started after Š.A. first hit A.R.

Đ.Š., the third witness, adduced that between 18.00 and 19.00 he had seen first the applicant and later his sons park their cars in front of the bar where the events at issue took place. Đ.Š. and his friend then approached the bar and saw S.M. lying unconscious on the ground.

The investigating judge also heard I.B. and Å e.A . who had been talking to F.M. directly before the attack took place. On 10 April 2006 I.B. stated that he saw the applicant and his sons, as well as F.M. who came from the bar. The applicant had his hand in his pocket and appeared as if he was holding something. He pointed at F.M. and told his sons who he was. I.B. then walked away from the bar and did not see anything else.

Še.A . stated that he and I.B. had been on their way home, when F.M. came out of the bar and told them to wait. Še.A . then noticed the applicant and his sons. The applicant pointed at F.M. and said something, whereupon he came towards him and hit him in the face with the handle of his knife. As F.M. tried to escape inside the bar, one of the applicant ’ s sons approached. At that moment both S.M. and Š.A. came out of the bar and a fight broke out between E.R. and S.M., the applicant and F.M. and A.R. and Š.A. Še.A . approached the fighting men to try and separate E.R. and S.M., but at that moment he saw E.R. strike at S.M. with a knife. E.R. was stabbing S.M. in the neck, but when Še.A . approached , he turned to him. Še.A . got scared and ran away.

I.B. and Å e.A . were summoned to attend the trial, but neither appeared, as they were in Macedonia. They gave apologies for their absence, I.B. stating that he needed a visa to enter Slovenia and that, in any event, he had not witnessed the crime. Å e.A . stated that he needed to care for his ill father, adding that even if the hearing was adjourned to another date, he could not attend it for other reasons.

At the hearing, the panel of the Koper District Court decided that, since I.B. and Å e.A . lived abroad and failed to appear despite having been duly summoned, the conditions set out by section 340 of the Criminal Procedure Act were met for reading out the records of their testimonies given before the investigating judge.

Moreover, the panel questioned Dr G.R., the surgeon who had treated all three victims at the local hospital and who explained the severity of the individual wounds sustained by the victims. Further, two medical expert opinions were obtained by the court. Dr A.Š. assessed the victims ’ individual injuries, the most likely manner in which they had been sustained, the angles of the stab wounds, etc. According to his opinion, Š.A. had sustained four wounds to his back and a number of wounds to his chest. S.M. was stabbed seven times, five times in the neck and in the back of the head, once to the left shoulder and once to the left side of the chest. F.M. was stabbed in the stomach. Dr D.M.S. performed a clinical examination of Š.A. in order to assess his wounds in more detail. She found that in addition to the four stab wounds to the back, Š.A. was stabbed once in the chest and once in the thigh. He also sustained an injury to his right lung and a number of bruises.

The panel also examined a number of pieces of documentary evidence from which it resulted that the applicant had been in a dispute with Š.A. over the latter ’ s workers who vacated his flat, however Š.A. as their employer and new landlord did not make a corresponding declaration of a change of residence to the competent administrative authority. Furthermore, the records of the telephone calls made and received from Š.A. ’ s phone and the phones of the applicant and his family showed that the applicant and Š.A. had had three conversations on the day of the incident. Moreover, it was evident that the applicant ’ s son A.R. had called his father a number of times on that day between 19.00 and 20.00 in the evening, just before the fight broke out.

On 19 June 2009 the panel of the Koper District Court found the applicant guilty of attempting to murder S.M., F.M. and Š.A. by stabbing the first in the neck, back of the head and the left side of the chest, the second in the left side of the stomach and the third in the back. Two of those offences were aided and abetted by the applicant ’ s sons who were each convicted of one count of attempted murder. The court rejected the applicant ’ s plea of self-defence and sentenced him to five years and ten months in prison, while his sons were both sentenced to one year and two months in prison.

The applicant appealed against the judgment before the Koper Higher Court, complaining, inter alia , that the first-instance court had violated his rights of defence, relying on the records of the testimonies given by I.B. and Še.A . during the investigation, and that judge P.L.P. should have been disqualified from the proceedings due to her previous connection with the victims ’ legal representative.

On 7 July 2011 the higher court dismissed the applicant ’ s appeal, explaining, as regards the alleged partiality of judge P.L.P., that she had been appointed to the office of judge almost a year before her former employer had accepted to act on the victims ’ behalf. In the higher court ’ s opinion, the applicant ’ s hypothetical fear that the judge ’ s previous employment would cause her to be inclined to rule in favour of the victims and her former employer was not justified by any objective reasons and, in any event, the motion for disqualification had been lodged too late.

As regards the applicant ’ s alleged inability to cross-examine I.B. and Še.A . at the trial, the higher court considered that the applicant had had an opportunity to question those witnesses during the investigation, noting that his lawyer had been informed about the hearing before the investigating judge but have failed to attend it. According to the higher court, the defence had been aware of and consciously disregarded the invitation to participate in the questioning of the witnesses during the investigation and, hence, accepted the risk that those witnesses would not be available for questioning at the trial hearing. Moreover, the higher court considered that the first-instance court ’ s reliance on the testimonies of the absent witnesses did not affect the regularity of its judgment.

The applicant lodged an appeal on points of law which was dismissed by the Supreme Court on 24 August 2012. The court confirmed that the first-instance court had correctly applied section 340 of the Criminal Procedure Act and read out the testimonies given by I.B. and Še.A . during the investigation, since the witnesses who lived abroad had been duly summoned to appear before the court, but had failed to attend the hearing. In this connection, the Supreme Court noted that pursuant to section 178 § 4 of the Criminal Procedure Act not only the applicant ’ s counsel, but also the applicant should have been personally invited to attend the questioning of the witnesses in the investigation. However, according to the Supreme Court, the applicant failed to substantiate how that error on the part of the investigating judge had affected the lawfulness of the impugned judgment. In the Supreme Court ’ s opinion, such an error could have only affect the lawfulness of the judgment in so far as it had relied to a decisive extent on the testimonies of the absent witnesses, which, however, was not the case.

The applicant lodged a constitutional complaint which on 24 December 2012 was rejected by the Constitutional Court as inadmissible.

B. Relevant domestic law

The relevant provisions of the Criminal Procedure Act read as follows:

Section 167

“...

(2) The aim of an investigation is to gather the evidence and data necessary for deciding whether to bring charges or discontinue proceedings, evidence whose reproduction at the main hearing might be impossible or very difficult, and other evidence which might be useful for the proceedings and whose taking appears warranted by the circumstances of the case.”

Section 178

“...

(4) The state prosecutor, the accused and his defence counsel may attend the examination of a witness. The investigating judge may order the accused to be removed from interrogation if a witness is unwilling to testify in the presence of the accused or if circumstances indicate that the witness will fail to tell the truth in the presence of the accused or in instances where a recognizance will be required after hearing the witness. The accused may not be present during the questioning of witnesses younger than 15 who are victims of any of the criminal offences from the third paragraph of Article 65 of this Act. The injured party may attend the examination of a witness only if the witness is not likely to appear at the main hearing.

...

(6) If a person who has been sent a notice of any intended questioning fails to appear, the questioning may be performed in his absence. ...

(7) The parties and defence counsel present during a questioning session may seek clarification of certain matters by putting questions to the accused, witness or expert. As a rule, the questions shall first be put by the state prosecutor, then by the accused and his counsel and finally by the investigating judge. The investigating judge shall not allow a question or an answer if they are not permitted or are irrelevant to the matter considered. ... Persons present at a questioning session shall have the right to demand that their remarks concerning the asking of individual questions be entered in the record, and may propose that individual pieces of evidence be taken.

...”

Section 288

“(1) ... Witnesses and experts proposed by the prosecutor in the indictment and by the accused in his defence to the indictment, except those whose examination at the main hearing is not necessary in the opinion of the presiding judge, shall also be summoned to the main hearing. ...”

Section 337

“(1) If it transpires in the course of the main hearing that a witness or an expert is unable to appear in court or his appearance would involve great difficulty, and the panel maintains that his testimony is important, the panel may order that he be examined outside the main hearing by the presiding judge, or a judge on the panel, or the investigating judge of the court in whose territory the witness or the expert resides.

...

(3) The parties and the injured person shall always be advised when and where a witness shall be examined, or when and where an inspection or reconstruction of an event shall take place, and shall be instructed that they may attend these events. If the defendant has been remanded in custody, the panel shall determine whether his presence is necessary during these actions. ...”

Section 340

“(1) In addition to the instances specified in the present Code, the records of the testimonies of witnesses, co-defendants or convicted persons who were involved in the offence, as well as expert reports and expert opinions, may on the basis of a decision of the panel be read out only in the following instances:

(i) if the persons questioned have died, or have been affected by a mental disease, or cannot be found, or are unable to appear in court due to old age, illness or some other weighty reason, or their appearance would involve great difficulty or if they live abroad and fail to appear at the main hearing despite being duly summoned;

(ii) if witnesses or experts refuse to testify at the main hearing without legal justification.

(2) Subject to the consent of the parties, the panel may decide that the record of a previous examination of a witness or an expert, or the written findings and opinion of the expert, be read out in court in the absence of the witness or the expert, whether or not the witness or the expert were summoned to appear at the main hearing.

...

(4) The reasons for the reading out of the record shall be indicated in the record of the main hearing ...”

Section 342

“After the examination of each witness or expert, as well as after the reading of each record or other written document, the presiding judge shall invite the parties and the injured person to make comments if they so wish.”

COMPLAINT

The applicant complains under Article 6 § 3 (d) of the Convention that the criminal proceedings in which he was convicted of three counts of attempted murder violated his right to cross-examine the witnesses against him, as he was unable to question two witnesses on whose testimonies the first-instance court relied in its judgment.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was there a good reason for admitting the pre-trial evidence of two absent witnesses, I.B. and Å e.A . ( see A l-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06 , §§ 119 ‑ 147, 15 December 2011), and were all reasonable efforts made by the trial court to secure their attendance?