FIFTH SECTION

Application no. 14204/07 Zdravko MIHELJ against Slovenia lodged on 23 March 2007

STATEMENT OF FACTS

The applicant, Mr Zdravko Mihelj , is a Slovenian national who was born in 1965 and lives in Ljubljana . He is represented before the Court by Ms M. Verstovšek , a lawyer practising in Celje .

A. The circumstances of the case

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

Following the public prosecutor ’ s request of 9 July 1999, the investigating judge of the Ljubljana District Court opened a criminal investigation against the applicant concerning allegations that he had committed fraud against M.K.

On an unspecified date, the applicant was summoned to appear before the investigating judge. He was also notified of the charges contained in the request for investigation. On 6 September 1999 the applicant was heard by the investigating judge. He denied the charges but was unwilling to answer any questions.

M.K. and her acquaintances D.R. and M.V., who corroborated her allegations, were examined as witnesses during the investigation. The applicant was not present during these examinations.

On 23 November 1999 the applicant was indicted for attempted aggravated fraud under paragraph 1 and 2 of Article 217 taken together with Article 22 of the Penal Code. The indictment alleged that the applicant had deceived M.K. into believing that he could help her to prevent her husband from taking her real property. It further alleged that the applicant had taken advantage of her age and naivety and that as a result, “she signed a fictitious loan contract which indicated that he had lent her 50.000 DEM (which was equivalent to 4,691,500 Slove n ian tolars (SIT)) and noted that the security of the payment be provided by a mortgage on her property in [the applicant ’ s] favour, despite the fact that in reality M.K. had not lent him or owed him anything, which [the applicant] was aware of.” The indictment also alleged that M.K. had signed an authority form which allowed the applicant to take the measures necessary for the execution of the contract. On that basis, the applicant allegedly achieved to have his “loan” secured by use of a mortgage note in his favour in the land registry. The indictment concluded that “by the foregoing, the applicant caused damage to M.K. ’ s property in the amount of SIT 4,691,500 since he had no intention to help M.K. but only attempted to gain a significant pecuniary benefit by the above described means.”

The applicant lodged an objection against the indictment which was rejected by the interlocutory proceeding panel on 7 July 2000. The latter noted in its decision that the criminal offence should be reclassified to attempted fraud as the value at stake was not of a significant nature.

It would appear that the ensuing court proceedings were conducted under the rules concerning summary proceedings and that legal representation of the defendant was not compulsory.

On 4 and 6 February 2002, respectively, the applicant received summonses to the hearing, which were sent through the court service as well as by regular post. On 28 March 2002 he sent a letter to the court in which he “objected” to the hearing alleging that he had received four invitations which contained no explanation but an indication of legal classification of the criminal offence in question.

On 29 March 2002 the Ljubljana Local Court held a hearing in the absence of the applicant. It examined M.K., D.R, and M.V. Before the end of the hearing the public prosecutor modified the indictment so that the applicant was charged under paragraph 1 of Article 217 of the Penal Code with fraud. She also modified certain factual bases of the charges. Among other things, she changed the allegations to which not only attempted but completed, and added an allegation that the applicant had lied to M.K. that there would be expenses with the registration of the mortgage in the land registry, for which she had paid him altogether SIT 225,000.

After the end of the hearing the court found the applicant guilty of the criminal offence as specified in the modified indictment and sentenced him to seven months in prison. M.K. was invited to pursue her pecuniary claim in civil proceedings. In the written grounds of the judgment, the court noted that the hearing had been conducted in the absence of the applicant because the legal requirements for trial in absentia had been met. Namely, the applicant had been properly summoned to the hearing, he had been previously heard during the investigation and there had been no need for him to be heard again at the court hearing.

The applicant appealed to the Ljubljana Higher Court . On 18 September 2002 the latter rejected his appeal and upheld the Ljubljana Local Court ’ s judgment. The Higher Court found that the applicant ’ s defence right had not been violated on account of his absence from the hearing. It noted that the presence at the hearing in the so called summary proceedings was a right of the defendant and not his obligation. It furthermore noted that only if the factual basis of the indictment were significantly changed at the hearing, should the court decide to discontinue the hearing, inform the defendant of the modified indictment and summon him to a new hearing. However, in the Higher Court ’ s view, this was not necessary in the applicant ’ s case.

Following the applicant ’ s appeal on points of law, on 13 November 2003, the Supreme Court delivered its judgment, in which it upheld the lower courts ’ decisions. The Supreme Court found that the acts the applicant had been accused of had been the same in the request for investigation and in the indictment. Furthermore, the hearing before the court concerned the same accusation which had been already subject of the investigation. Referring to section 442 of the Criminal Procedure Act, the Supreme Court noted that the presence of the defendant at the hearing was his right, which could under certain conditions be waived. It also noted that the applicant had been warned that the hearing could be held in his absence. As regards the examination of witnesses during the investigation, the Supreme Court noted that while there were no indications in the case-file that the applicant had been notified of it, this procedural breach had been remedied by the hearing at which all the three witnesses had been re-examined. The applicant had been given a chance to participate at that hearing.

The applicant lodged a constitutional appeal, which was declared admissible on 29 May 2006.

On 9 November 2006 the Constitutional Court delivered a decision finding that the applicant ’ s constitutional rights had not been violated. In particular, it found that the local court had had no obligation to ensure the applicant ’ s presence at the hearing since the charges in the request for investigation, in the bill of indictment and in the modified indictment had concerned the same acts and the applicant had been heard during the investigation. It also found that the applicant had not requested an adjournment of the hearing, but had decided not to appear without specifying any relevant reason. As regards the examination of the witnesses during the investigation, the Constitutional Court reached the same conclusion as previously the Supreme Court.

B. Relevant domestic law

The relevant provisions of the Penal Code (Official Gazette no. 63/94) read as follows:

Article 22 (Criminal Attempt)

“(1) A person who initiates a criminal offence but does not complete it shall be punished for a criminal attempt, provided that such an attempt concerns a criminal offence for which a sentence of imprisonment of three years or more may be imposed under the law; attempts involving any other criminal offence shall be punishable only when it is so expressly stipulated by the law.

(2) The perpetrator who attempted to commit a criminal offence shall be sentenced within the limits prescribed for the main offence or was he imposed a lesser sentence”

Article 217 (Fraud)

“(1) A person who, with the intention of gaining unlawfully a pecuniary benefit for himself or a third person, by dishonest representation or concealing of facts leads another person into error or keeps him in error, thereby inducing him to do any act or to abstain from doing any act to the detriment of his or another person ’ s property shall be sentenced to imprisonment for not more than three years.

(2) If, as a result of the offence under the preceding paragraph, the perpetrator has caused a significant loss of property, he shall be sentenced to imprisonment for not less than one and not more than eight years.

... ”

Relevant provisions of the Criminal Procedure Act (Official Gazette 63/1994) provides as far as relevant:

Section 439

...

(2) ... The summons of the defendant should include a warning that the hearing will be held in his absence under the conditions ... (paragraph 1 of section 442). ... [he] should also be informed of his right to appoint a lawyer but that in cases where legal representation is not compulsory a hearing would not be adjourned in the event of the absence of the counsel ... .

...

Section 442

(1) If the defendant fails to attend the hearing although he has been properly summoned, the judge may decide to conduct a hearing in his absence, if his presence is not necessary and if he was heard earlier in the proceedings.

(2) If the legal counsel of the defendant does not attend the hearing ... ., and legal representation is not compulsory, a hearing ... may be held in his absence.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the indictment was modified at the hearing at which he had not been present.

The applicant also complains under Article 6 § 1 (d) that he was not able to participate at the examination of witnesses during the judicial investigation, despite this being his right under the domestic law.

He further complains under Article 6 that his trial was conducted in absentia. In particular, he was convicted following the only hearing held in his case, at which he had not been present. He submits that he was only heard during the investigation and that the court should have ensured his presence at the hearing in order to safeguard his interests.

In his submissions of 10 June 2010, the applicant also complains under Article 5 of a violation of his right to liberty.

QUESTIONS

1. Did the applicant have a fair h earing in the determination of the criminal cha rges against him in accordance with Ar ticle 6 § 1 of the Convention? In particular, having regard to the changes to the indictment made at the hearing of 29 March 2002, was there a violation of the applicant ’ s rights enshrined in Article 6 §§ 1 and 3 (a) and (b) of the Convention?

2. What was the nature of the examination of the case before the courts of higher instance? In particular, could any defects in the first-instance proceedings, such as the impaired rights of defence on account of the modification of charges, be cured by the Higher Court ’ s review (see Dallos v. Hungary , no. 29082/95, §§ 42 to 53 , ECHR 2001 ‑ II ).

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