Information Note on the Court’s case-law 205

March 2017

Cerovšek and Božičnik v. Slovenia - 68939/12 and 68949/12

Judgment 7.3.2017 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Reasons for conviction given by judges who had not participated in trial: violation

Facts – The applicants were tried and convicted of theft by a single judge. The judge retired from the bench after pronouncing her verdict and without giving written reasons. Three years later, two judges, who had not participated in the trial, gave a written judgment based on the case files. The applicants’ convictions were upheld on appeal without any direct rehearing of eviden ce. In the Convention proceedings the applicants complained under Article 6 § 1 that there had been a breach of their right to a fair trial as the reasons for the verdicts against them had not been given by the judge who had reached them.

Law – Article 6 § 1: A reasoned judgment was important to ensure the proper administration of justice and to prevent arbitrariness. A judge’s awareness that he or she had to justify his or her decision on objective grounds provided one of the safeguards against arbitrarine ss. The duty to give reasons also contributed to the confidence of the public and the accused in the decision reached and allowed possible bias on the part of the judge to be discerned. As recognised through the principle of immediacy in criminal proceedin gs, the judge’s observation of the demeanour of the witnesses and the applicants and her assessment of their credibility must have constituted an important, if not decisive, element in the establishment of the facts on which the applicants’ convictions wer e based. She should have addressed her observations in written grounds justifying the verdicts.

As to the question of whether the judge’s retirement, which was allegedly the reason for her failure to provide written grounds, gave rise to exceptional circu mstances which justified a departure from the standard domestic procedure, the Court considered that the date of her retirement had to have been known to her in advance. It should have been possible therefore to take measures either for her to finish the a pplicants’ case alone or to involve another judge at an earlier stage in the proceedings. The case was not particularly complex and the applicants had given notice of their intention to appeal as soon as the verdict had been pronounced. That meant that the judge had been immediately aware that she would provide written grounds. It was particularly striking that despite a statutory time-limit of thirty days, the written grounds were not provided for about three years after the pronouncement of the verdicts.

The only way to compensate for the judge’s inability to produce reasons justifying the applicants’ conviction would have been to order a retrial. When the judge had retired the verdicts had already been pronounced and the applicants’ statement and witness testimony constituted relevant information. The courts at higher levels of jurisdiction upheld the first-instance court’s judgment without directly hearing any of the evidence. It could not therefore be said that the deficiency at issue had been remedied b y the appellate courts.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 each in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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