Communicated on 8 April 2015

FIFTH SECTION

Application no. 18105/13 Alenka Å AVER against Slovenia lodged on 6 March 2013

STATEMENT OF FACTS

The applicant, Ms Alenka Šaver , is a Slovenian national, who was born in 1961 and lives in Petrovče . She is represented before the Court by Mr Z. Korenčan , a lawyer practising in Ljubljana.

A. The circumstances of the case

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

The applicant and D.Š. were the only members and directors of company A. which appears to have encountered financial difficulties in 2005. According to the indictment lodged against the applicant and D.Š. on 7 May 2010, when company A. became insolvent and thus unable to meet its contractual obligations and repay its creditors, the applicant founded L., another company to which company A. had sold several immovable properties at a price well below the market price. Moreover, the applicant and D.Š. gave preferential treatment to some of company A. ’ s creditors and paid them in full, while already unable to cover the company ’ s liabilities. According to the indictment, the applicant and D.Š. intentionally put some of the creditors of company A. in a preferential position and caused a large property loss to other creditors, thereby committing an offence contrary to section 234 of the Criminal Code. Furthermore, the applicant and D.Š. used the profits gained by their fraudulent actions to repay their own debts to company A. and to continue economic activities of company L., thereby transforming the proceeds of crime into legitimate assets. Consequently, they were also charged with money laundering, an offence contrary to section 252 of the Criminal Code.

In 2007 pre-trial proceedings were instituted against the applicant and D.Š. On 6 November 2007 the applicant gave power of attorney to Z.K. D.Š. was at the time represented by T.T. and company A. was represented by A.N. During the investigation, in 2008 the investigating judge made an order for a temporary seizure of proceeds of crime against the applicant, D.Š., company A. and company L. An objection was lodged against the order pertaining to company A. by the applicant ’ s counsel Z.K.

The same counsel was present during the applicant ’ s police interview on 22 December 2008. On 14 April 2009 the Celje District State Prosecutor ’ s Office lodged a request for a judicial investigation against the applicant and D.Š. Again, the applicant was represented by Z.K.

After the indictment was lodged against the applicant, on 4 April 2012 the Celje District Court issued an order prohibiting Z.K. and M.K., the second counsel for the applicant, from representing the latter. The district court relied on section 68 of the Criminal Procedure Act prohibiting a defence counsel from defending two or more defendants in the same criminal matter in order to avoid any potential conflict of interest. Namely, it was established that in the pre-trial proceedings, Z.K. had represented company A. and lodged an objection against the order for a temporary seizure of proceeds of crime on its behalf. As for M.K., he had attended questioning of a witness as Z.K. ’ s replacement in the pre-trial proceedings, Moreover, since he had at the time worked in Z.K. ’ s legal firm, the same rules applied to him as to Z.K. The district court pointed out that there was an indisputable legal presumption of conflict of interest between co-defendants in the same criminal matter, and, consequently, took the view that Z.K. and M.K. could no longer act as defence counsels for the applicant. It was true that the counsels had only represented company A. in the pre-trial proceedings and that the company had later not been charged with any criminal offence. However, in the district court ’ s opinion they had acted for the company in the same criminal matter in which the applicant had later been indicted. Thus, Z.K. and M.K. were precluded from further representation of the applicant. Moreover, the district court ordered the applicant to appoint a new defence counsel within eight days from the finality of the order.

The applicant appealed the order, arguing that it violated her right to free choice of counsel. She pointed out that no criminal proceedings had been instituted against company A. which, accordingly, could not be considered “a defendant” within the meaning of section 68 of the Criminal Procedure Act. In those circumstances, the applicant was convinced that there could be no conflict of interest between herself and the company. Moreover, the applicant had given Z.K. power of attorney already on 1 November 2007, while company A. had retained him for its defence almost a year later, on 2 June 2008. Considering that Z.K. had represented her well before he started to act on the company ’ s behalf, the applicant maintained that he could only be precluded from representing company A., which was in any event not party to criminal proceedings at issue.

On 21 August 2012 the Celje Higher Court dismissed the applicant ’ s appeal, reiterating that Z.K. and M.K. had previously represented company A. as well as the applicant. Moreover, the higher court pointed out that pursuant to section 36(3) of the Liability of Legal Persons for Criminal Offences Act, a legal entity accused of a criminal offence could not be defended by the same counsel as a defendant who was a natural person. The higher court, while acknowledging that the authorities should not have allowed Z.K. to represent company A., since he had already represented the applicant in the pre-trial proceedings, was of the view that the notion “criminal matter” was to be understood more extensively than the notion of “criminal proceedings”, which only encompassed the judicial investigation and the ensuing court proceedings. In the applicant ’ s case, the pre-trial proceedings were conducted against herself and D.Š., but also against companies A. and L., and the provision prohibiting one counsel to represent several defendants thus applied to the case. Since the provision of section 68(3) of the Criminal Procedure Act was a binding norm, not allowing for any derogation, it did not matter whether there was in fact any conflict of interest between individual defendants. In conclusion, the higher court emphasised that an individual ’ s right to defend himself through legal counsel of his own choosing could only be effectively exercised if the counsel was not limited by interests of any other parties to the proceedings. Thus, relying on a decision delivered by the Constitutional Court, the higher court reiterated that the statutory provision excluding the possibility for one counsel to act on behalf of several defendants in one set of criminal proceedings and thus preventing such a conflict of interest should be understood as a guarantee of fair trial which had to override an individual ’ s right to free choice of counsel.

The applicant lodged a constitutional complaint, reiterating the arguments she had adduced in her appeal. She moreover alleged that company A. had never been investigated in relation to the criminal offences subject to the criminal proceedings at issue in which Z.K. and M.K. had been prohibited from representing her, but in relation to the offence of commercial fraud. According to the applicant, she had been indicted of the same offence in a separate set of proceedings. Hence, it could not be said that the criminal proceedings pertaining to the offences of defrauding creditors or money laundering, which were subject to the criminal proceedings at issue, amounted to “the same criminal matter” within the meaning of section 68(1) of the Criminal Procedure Act.

On 22 October 2012 the Constitutional Court rejected the applicant ’ s constitutional complaint, holding that her case entailed neither a violation of human rights having serious consequences for her nor an important constitutional question.

B. Relevant domestic law

Section 68(1) of the Criminal Procedure Act provides that a defence counsel may not defend two or more defendants in the same criminal matter. Moreover, section 36(3) of the Liability of Legal Persons for Criminal Offences Act provides that a legal entity accused of a criminal offence may not be defended by the same counsel as a natural person accused of the offence.

COMPLAINTS

The applicant complains under Article 6 § 3 (c) of the Convention that the domestic courts have prohibited her counsel Z.K. from further representing her in the criminal proceedings, owing to the fact that during the police investigation four years earlier, he had also acted on behalf of company A. owned by the applicant and another person; however, company A. has eventually not been charged with any criminal offence. According to the applicant, the domestic courts have thereby misinterpreted the rule of criminal procedure prohibiting a defence counsel from defending two or more defendants in the same criminal matter.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, did the decision of the domestic courts to prohibit her counsel Z.K. from defending her on account of the fact that he had previously represented company A. owned by the applicant and D.Š. in “the same criminal matter” amount to a breach of her right to defend herself through legal assistance of her own choosing set out in Article 6 §§ 1 and 3 (c) of the Convention, having regard to the fact that no criminal proceedings were ever instituted against company A.?