I incorrectly predicted that there's no violation of human rights in CEROVŠEK v. SLOVENIA and 1 other application.

Information

• Judgment date: 2017-03-07
• Communication date: 2015-04-08
• Application number(s): 68939/12;68949/12
• Country:   SVN
• Relevant ECHR article(s): 6, 6-1
• Conclusion:
  Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Fair hearing)
  Non-pecuniary damage - award (Article 41 - Non-pecuniary damage
  Just satisfaction)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.693303
• Prediction: No violation

• Inconsistent

Communication text used for prediction

Applications nos 68939/12 and 68949/12Silvo CEROVŠEK against Sloveniaand Štefan BOŽIČNIK against Slovenialodged on 8 October 2012 and 8 October 2012 respectively The applicant in the first case, Mr Silvo Cerovšek, was born in 1962 and lives in Bizeljsko.
The applicant in the second case, Mr Štefan Božičnik, was born in 1946 and lives in Artiče.
Both applicants are Slovenian nationals and are represented before the Court by Mr D. Medved, a lawyer practising in Krško.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2007, both applicants were convicted of theft by the Brežice Local Court.
On 21 June 2007 the local court judge A.K.
found the first applicant guilty of having taken another’s movable property with the intention of unlawfully appropriating it.
It was found that the first applicant had cut and taken eight oak trees in a forest belonging to another person and the wood.
According to the expert opinion ordered by the local court, the value of the wood amounted to approximately 2,000 euros (EUR).
The first applicant maintained that he had been cutting trees only in his own forest which had been attacked by bark beetle.
However, after the trial at which judge A.K.
heard a number of witnesses and examined the report of the visit to the scene as well as a number of other documents including a sketch and a copy of the cadastral map, she orally pronounced a verdict convicting the first applicant to six months in prison, suspended for three years.
Moreover, the first applicant was ordered either to deliver to the injured party equal quantity of oak wood as taken from his forest or to pay him compensation in the amount of EUR 2,028.
On 2 July 2007 judge A.K.
found the second applicant guilty of having taken another’s movable property with the intention of unlawfully appropriating it.
The judge established that the second applicant had cut and taken three beech and nine hornbeam trees in a forest belonging to another person.
Moreover, he had cut and taken two hundred acacia trees from the plot of land belonging to yet another person.
According to the expert opinion ordered by the local court, the value of the beech and hornbeam trees amounted to EUR 457 and the value of the acacia trees to EUR 440.
In respect of the first charge, the second applicant maintained that he had mistakenly thought that he was cutting trees on his own plot of land.
As to the second charge, the second applicant argued that he had had an agreement with the owner of the trees that he could cut the trees in exchange for supplying the owner with wine.
However, the injured party denied the existence of such an agreement.
After the trial at which judge A.K.
heard a number of witnesses and examined a number of documents including copies of relevant cadastral maps, she orally pronounced the verdict convicting the first applicant to seven months in prison, suspended for three years.
Moreover, the second applicant was ordered to pay the injured parties compensation in the amounts of EUR 457 and EUR 440, respectively.
On an unspecified date after hearing the verdict but before receiving the written judgment, both the first and the second applicant gave notice of intention to appeal against the respective judgments.
After judge A.K.
retired, the Brežice Local Court found that the case-files in both applicants’ cases had been lost.
Consequently, in 2010, the local court restored the files.
Based on the records contained in the restored case-file, judge D.K.M.
delivered the written judgment which was served on the first applicant’s counsel on 17 August 2010.
Judge M.B.
delivered the written judgment in the second applicant’s case which was served on his counsel on 17 June 2010.
Both applicants appealed the judgments with essentially the same arguments, complaining, inter alia, that the written judgments had been given by different judges than the one who had conducted the trials in their cases and orally pronounced the judgments.
In the applicants’ opinion, a written judgment should not have been delivered by a judge who had not directly participated at the trial and thus had not heard any of the evidence given.
Consequently, the fact that the written grounds of the judgments at issue were given by judges who had not been able to gain a direct impression of the evidence or the applicants’ arguments violated the rights of the defence.
Moreover, the applicants pointed out that the written judgments had been delivered three years after the trial, although they should have been served on them within 30 days from the oral pronouncement.
In view of this, both applicants alleged that the judgments should have been set aside and remitted to the first-instance court for a fresh consideration.
Furthermore, both applicants also appealed the factual findings on which their convictions were based.
On 26 August and 25 November 2010, respectively, the Ljubljana Higher Court dismissed the applicants’ appeals, holding that the fact that the written grounds of the impugned judgments had been given a few years after they had been pronounced orally did not render the judgments unlawful.
The higher court emphasised that the impugned judgments were based on the facts established in adversary proceedings and on evidence given at the trial hearings which the applicants had been able to challenge by presenting their own versions of the events at issue.
The first-instance judgments had been orally pronounced by judge A.K.
who had conducted both applicants’ trial hearings, questioned the applicants and heard all of the evidence presented at their respective trials.
Moreover, it was specified in the judgments on what evidence the local court had relied in establishing the facts of the cases and how it had assessed the reliability of the applicants’ statements.
In the higher court’s opinion, the grounds given by the local court were precise and reasonable; they indicated that the court had truthfully and accurately established all the relevant facts of the cases.
On 13 October 2010 and 20 January 2011, respectively, the applicants lodged requests for the protection of legality (an extraordinary remedy) before the Supreme Court, arguing, inter alia, that the judges who had given the written grounds of the judgments had not had the opportunity to gain a direct impression of the evidence heard at the trials.
Hence, the applicants questioned the ability of judges D.K.M.
and M.B.
to correctly establish the facts or to assess individual evidence, especially the statements of the witnesses and the credibility of their own defence arguments.
In the same manner, the applicants were convinced that judges D.K.M.
and M.B.
could not form a proper opinion on their guilt.
Thus, they took the view that the written grounds of the judgments could not be properly reviewed, since the judges who had written the judgments had to adapt the assessment of individual evidence and the entire reasoning of the judgments to the verdicts pronounced by another judge.
The applicants reminded that, according to the view of the Constitutional Court, the essence of the principle of immediacy was that a court decision had to be delivered by the judges who participated in the trial hearing where the parties made their statements and where the court also examined all evidence.
On 6 January and 1 September 2011, respectively, the Supreme Court dismissed the applicants’ requests for the protection of legality, holding that only operative part of the judgment interfered with the rights of the parties, while the purpose of the reasoning was to enable a decision to be reviewed by higher instances.
As a rule, the written grounds of the judgment were given by the judge who conducted the trial hearing and pronounced the verdict.
However, in certain situations, such as the judge’s longer absence or death, the law had to be interpreted as permitting another judge to give written grounds.
In such cases, the judge who wrote the judgment based it on logical reasoning and on the content of individual evidence.
It was true that the principle of immediacy required that the verdict was given by a judge who participated at the trial hearing.
However, in the Supreme Court’s opinion, the act of writing a judgment, which, in the strict sense, was not part of the trial, could not be equated with the act of passing of a verdict.
Moreover, if the reasoning of the judgment was not convincing, the defendant had better chances of succeeding with his or her appeal.
Having regard to these considerations, the Supreme Court took the view that the applicants’ rights of defence had not been violated.
On 1 April and 2 December 2011, respectively, the applicants lodged constitutional complaints, reiterating the arguments they had advanced before the regular appeal courts.
On 3 April 2012 the Constitutional Court rejected the applicants’ constitutional complaints, holding that their cases entailed neither a violation of human rights having serious consequences for them nor an important constitutional question.
B.
Relevant domestic law and practice 1.
The Criminal Procedure Act According to section 360 of the Criminal Procedure Act, the presiding judge pronounces the judgment immediately after the court has passed it.
If, however, the court is unable to pass a judgment on the day of the trial hearing, the pronouncement can be postponed by a maximum of three days.
The judgment is pronounced by reading its operative part in open court and in the presence of the parties and their counsels, whereupon the presiding judge gives a brief account of the grounds of the judgment.
Section 363 of the Act further provides that a judgment is drawn up in writing within fifteen days of its pronouncement if the defendant is in detention, and within thirty days in other instances.
If a judgment is not drawn up within that time, the presiding judge informs the president of the court of the reasons therefor.
The president of the court is then required to take the necessary steps for the judgment to be drawn up as soon as possible.
2.
Decision no.
Up-309/04 of the Constitutional Court In decision no.
Up-309/04 of 11 October 2006 the Constitutional Court held that the essence of the principle of immediacy was that a judicial decision was issued by the judges who participated in the trial hearing at which the parties made their statements and at which the court examined all evidence.
According to the court, judges could gain insight into the characteristics or particularities of an individual piece of evidence as well as form their subjective opinion on the credibility of examined witnesses only if they directly participated in the examination of evidence so that they, through their senses (and not through a mediator), perceived the nature and the contents of individual means of evidence.
COMPLAINTS The applicants complain under Article 6 § 1 of the Convention that the criminal proceedings against them were conducted in breach of their right to conduct an effective defence due to the fact that the written grounds of the judgments were given by judges who had not participated in their trials and therefore did not gain a direct impression of the evidence and their arguments.
The applicants allege that the separation of the roles of the trial judge who pronounced the respective verdicts and the judges who wrote the judgments is not consistent with the principle of immediacy which they consider one of the key elements of the right to a fair trial.
They further allege that it was not possible for them to effectively challenge the judgments, since the credibility of their defence and the witnesses’ statements was decided by the judges who were not able to make any direct assessment of those statements and arguments.