Published on 28 August 2023

FIRST SECTION

Application no. 41541/22 Janez PUÅ NIK against Slovenia lodged on 19 August 2022 communicated on 12 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the criminal proceedings before the Maribor District Court against the applicant, who was convicted for, inter alia , attempted manslaughter of his ex-partner. After his arrest, the applicant’s phone was searched by the police based on a consent form signed by him. While the applicant was informed of his defence rights upon his arrest, he did not have a lawyer during that period. In this connection he had raised a complaint referring to the privilege against self-incrimination in his appeals, but that was dismissed essentially on the grounds that the applicant had consented to the search. Later in the trial, the presiding judge decided to remove the applicant from the court room during the examination of the injured party (his ex-partner) based on the latter’s representative’s request. It is unclear whether the applicant’s lawyer was present during the said examination. The applicant complained before the appeal courts that this decision was not supported by any reason, neither when taken nor in the judgment convicting him, but to no avail. His appeals against the conviction, including his constitutional appeal, were in the most part unsuccessful.

The applicant complains of a violation of Article 6 of the Convention in that his mobile phone, which included incriminating evidence, had been searched by the police without him being at that juncture properly informed of his rights in the proceedings and without being assisted by a lawyer, and because that evidence was later used for his conviction.

The applicant also complains about the trial court’s decision to remove him from the courtroom during the examination of the injured party, as a result of which he was unable to observe and participate at her questioning in breach of Article 6 §§ 1 and 3 (d) of the Convention. He alleges that the domestic courts did not put forward any reasons justifying that decision.

QUESTIONS TO THE PARTIES

1. Did the search of the applicant’s mobile phone and the use of this evidence in the criminal proceedings against him, having regard to the trial as a whole, give rise to a violation of Article 6 § 1 of the Convention (see mutatis mutandis , Bykov v. Russia [GC], no. 4378/02, § 89-93, 10 March 2009)?

2. Has there been a violation of Article 6 §§ 1 and 3 (d) in respect of the district court’s decision to remove the applicant from the courtroom during the examination of the injured party? In particular, was that decision properly reasoned and accompanied by sufficient procedural safeguards and counterbalancing factors to offset the defence’s handicap (see, mutatis mutandis , Schatschaschwili v. Germany [GC], no. 9154/10, §§ 111-31, ECHR 2015; Papadakis v. the former Yugoslav Republic of Macedonia , no. 50254/07, §§ 91-95, 26 February 2013; and Bocos-Cuesta v. the Netherlands , no. 54789/00, § 71, 10 November 2005)?