Communicated on 31 March 2015

FIFTH SECTION

Application no. 7189/14 Velibor POPOVIĆ against Slovenia lodged on 16 January 2014

STATEMENT OF FACTS

The applicant, Mr Velibor Popović , is a Montenegrin national, who was born in 1977 and is detained in Dob . He is represented before the Court by Mr J. Stušek , 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.

On an unspecified date the applicant came to Slovenia with the purpose of clarifying his role in the alleged illegal trade in weapons, but was arrested by the police and placed in pre-trial detention on 15 May 2012. According to the applicant, he had not had a criminal record at the time or any history of violent behaviour.

On three occasions during the investigation, on 26 June 2012, 12 July 2012 and 14 August 2012, the applicant was brought before the investigating judge of the Kranj District Court in handcuffs and leg irons.

On 19 October 2012 the Kranj District State Prosecutor ’ s Office brought an indictment against the applicant and three other persons for the aggravated offence of illegal trade in weapons punishable by one to ten years ’ imprisonment. The applicant was accused of having ordered a large quantity of firearms (seventeen automatic rifles and nineteen handgun, together with a substantial amount of ammunition), while his co-defendants were accused of having organised the transport of the weapons.

The trial before the Kranj District Court began on 11 January 2013 and altogether eight hearings were held. It appears that the applicant and two of his co-defendants, who were in pre-trial detention throughout the proceedings, were brought to the hearings accompanied by six judicial police officers in protective jackets armed with semi-automatic rifles. On 11 January 2013, 8 March 2013, 15 March 2013, 22 March 2013, 26 April 2013 and 24 May 2013 the applicant was brought before the district court in handcuffs and leg irons. While his handcuffs were removed during the court sessions, the leg irons were kept on him.

On 15 March 2013 and 22 March 2013 the applicant ’ s counsel complained that the leg irons on the applicant conveyed the premature statement that he was guilty of the offence he was charged with and violated the principle of the presumption of innocence. In support of his submission, the counsel cited a number of cases from the jurisprudence of the European Court of Human Rights ( Ramishvili and Kokhreidze v. Georgia , no. 1704/06, 27 January 2009, Gorodnitchev v. Russia , no. 52058/99, 24 May 2007, and Samoilă and Cionca v. Romania , no. 33065/03, 4 March 2008). He moreover pointed out that the applicant was not violent and that there was no risk that he would attempt to escape from the courtroom. Finally, he argued that the measure of hand- and leg cuffing should not be equated with the grounds for detention. The applicant ’ s counsel requested the applicant no longer to be restrained in the courtroom. It does not appear that the trial judge decided on this request.

On 24 May 2013 the applicant lodged an administrative action against the State for unlawful interference with his constitutional rights to personal dignity, equal protection of rights, judicial protection and the principle of presumption of innocence before the Administrative Court. He also lodged a request for an interim injunction prohibiting the judicial police officers from restraining him in the courtroom. The applicant claimed that he had no other remedy whereby he could challenge the fact that he was being restrained during the trial hearings before the Kranj District Court, although he had not been found guilty of any offence , and the burden of proof should lie with the prosecution. In this regard, he explained that he could not wait until the judgment was adopted in the criminal proceedings to appeal against the measures of restraint, as his complaint would at that time be devoid of any purpose.

The applicant was convinced that the presence of a considerable number of judicial police officers and restraints on his legs were not necessary and could give rise to prejudice about his guilt. Moreover, he felt that the measures were humiliating and violated his personal dignity. In this connection, he emphasised that he felt powerless and could not focus on the proceedings at issue , which affected the effectiveness of his defence. In the applicant ’ s opinion, he should not be restrained unless there was a risk that he would cause damage to property or persons. However, he had come to Slovenia voluntarily and had been placed in pre-trial detention due to the risk of reoffending. The applicant alleged that he did not present any risk of absconding. In view of that, he took the view that the measures of restraint were not proportionate to the aim pursued. He relied on the Enforcement of Criminal Sanctions Act, according to which coercive measures against prisoners may only be applied if it not otherwise possible to prevent escape, physical attack, self-inflicted injury or substantial material damage. Moreover, the applicant pointed out that, according to the Act, the use of coercive measures was only justified in so far as it ensured that the officers could discharge their duties with minimum negative consequences for the person subject to such measures. The applicant thus argued that coercive measures should only be used in so far as necessary and should be proportionate to the aim pursued.

The Prison Administration of the Republic of Slovenia (hereinafter “the Prison Administration”) , representing the respondent party, argued that the applicant was assessed as posing a serious risk of absconding, that the charges against him could lead to a lengthy prison sentence, that he was a member of an organi sed crime group and that he was not a Slovenian citizen. The applicant was a citizen of Montenegro, but resided in France together with his family. Thus, according to the Prison Administration, the applicant had no ties to Slovenia. Moreover, the competent court had twice extended the applicant ’ s pre-trial detention owing not only to the risk of reoffending, but also to the risk of absconding. In this connection, the Prison Administration alleged that the applicant had been found tampering with the security bars on the window of his cell. The Prison Administration was thus of the view that the measures of restraint used to prevent the applicant from absconding were lawful, justified and proportionate.

On 31 May 2013 the Administrative Court rejected the applicant ’ s action and request for an interim injunction, holding that he was not complaining about being restrained during transport from the detention centre to the court, but solely on account of the fact that he remained in the restraints during the trial hearings. However, in the Administrative Court ’ s opinion, any decision regarding the use of coercive measures against a defendant during the course of a trial hearing lay within the authority of the trial judge. Under section 299 of the Criminal Procedure Act, the latter had the power to order any measures which could elucidate the case or prevent the proceedings from being prolonged unnecessarily. Moreover, under section 301 of the Act the trial judge was under the duty to maintain order in the courtroom.

The Administrative Court noted that the applicant ’ s counsel had complained about the excessive use of coercive measures at two hearings before the Kranj District Court, held on 15 and 22 March 2013. However, the Administrative Court did not have the power of judicial review over the work of a criminal court and the manner in which the constitutional rights were protected by the criminal courts.

The applicant appealed against the decision before the Supreme Court, arguing, firstly, that it was impossible to set any clear boundaries between the situation of being physically restrained during transport to and from the trial hearings and of the same situation continuing during the hearings. While the interference with his rights commenced for the purpose of transport, it de facto continued at the courtroom. Moreover, the applicant was convinced that the general provisions of sections 299 and 301 of the Criminal Procedure Act did not constitute an effective remedy whereby he could obtain a decision on the merit on whether the physical restraints were necessary. While it was in theory possible for the trial court to rely on those provisions in order to decide whether his rights were breached, the applicant maintained that they were of no practical value.

Moreover, the applicant emphasised that the physical restraints during the court hearing also violated his right to the presumption of innocence and that this issue could not be adequately addressed by the trial court in the criminal proceedings.

On 4 July 2013 the Supreme Court granted the applicant ’ s appeal in part, holding that the Administrative Court should have also examined his complaint with regard to the use of physical restraints during transport. However, as regards the restraints used during the hearing, the Supreme Court concurred with the view expressed by the Administrative Court that the Criminal Procedure Act provided a sufficient basis for deciding on this issue and that the administrative justice was not empowered to exercise judicial review over the decisions of criminal courts.

On 19 July 2013 the applicant was found guilty of the aggravated offence of illegal trade in weapons and convicted to an eight-year prison sentence.

B. Relevant domestic law

As regards the use of coercive measures against detainees and prisoners, authorised judicial police officers may, according to section 239 § 1 of the Enforcement of Criminal Sanctions Act use coercive measures against them only when it is necessary to prevent escape, physical attack, self-inflicted injury or substantial material damage. According to paragraph 5 of this section, the use of coercive measures should be limited to those which ensure that the official duties are executed with minimum negative effect to the person subject to such measure.

Moreover, the Rules on the Exercising of the Powers and Duties of Judicial Police Officers provide that judicial police officers escort and guard prisoners outside detention centres. In this connection, section 37 of the Rules provides the measures that are to be considered when escorting prisoners, notably the instructions on handcuffing and information about the criminal offence and the sanction, information about the personal characteristics of the prisoner and other circumstances relating to whether he or she represents a risk of flight or danger to the police officers, as well as the number of police officers carrying out the duty of escorting. The measures are applied with regard to the number of prisoners, the risk of flight or the danger they represent. A prisoner is as a rule escorted by at least two judicial police officers; however, a lower or a higher number of officers may be designated to an individual prisoner depending on the circumstances.

As regards the conduct of trial hearings in the criminal proceedings, the presiding judge of the trial court panel has the authority under section 299 of the Criminal Procedure Act to call on the parties, the injured person, legal representatives, attorneys, defence counsel, experts and panel members to make their statements, and to i nterrogate the defendant and question witnesses and experts. Moreover, it is the duty of the presiding judge to see to it that the case is elucidated from all aspects, that the truth is discovered and that whatever might protract proceedings without contributing to elucidation of the case be eliminated. To this end, the presiding judge rules on the motions of the parties . However, the m otions on which the parties disagree and concurrent motion s of the parties with which the presiding judge disagrees are decided by the panel. The panel also decides on the objections to the measures taken by the presiding judge in conducting the hearing. The rulings of the panel are pronounced and en tered in the record of the main hearing together with a short explanation.

Moreover, pursuant to section 301 of the Criminal Procedure Act the presiding judge is under the duty to maintain order in the courtroom and protect the dignity of the court. T o this end he or she may, immediately u pon the opening of the session, warn those persons present at the hearing to behave properly and not to obstruct the proceedings. The presiding judge may order a personal search of those present at the hearing. Moreover, t he trial court panel may order that the audience present at the hearing be removed if it is not possible to secure an undisturbed course of the hearing.

COMPLAINTS

The applicant complains under Article s 3, 6 § 2 and 8 of the Convention that in the criminal proceedings against him he was brought to trial hearings in handcuffs and leg irons and that the latter were not removed during the hearings. According to the applicant, these measures humiliated him and violated his personal dignity; moreover, they were not necessary, as he did not pose the risk of absconding or causing injury or damage. Further, the applicant maintains that the physical restraints constituted a violation of his right to the presumption of innocence.

Finally, the applicant alleges that he did not have any effective remedy at his disposal by which to challenge the use of restraining measures, in breach of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the use of handcuffs and leg irons on the applicant during transfer to and from the courtroom and during the trial hearings before the Kranj District Court compatible with the requirements of Articles 3, 8 and 6 § 2 of the Convention (see Raninen v. Finland , 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, and Ashot Harutyunyan v. Armenia , no. 34334/04 , § 138, 15 June 2010) ?

2. Was the refusal of the domestic courts to examine on the merits the applicant ’ s complaint of ex cessive use of coercive measures in breach of the applicant ’ s right to an effective domestic remedy as guaranteed by Article 13 of the Convention?