CASE OF ŠUBINSKI v. SLOVENIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award
David Thór Björgvinsson;John Hedigan
5. The applicant was born in 1971 and lives in Mirna. 6. The application concerns two sets of criminal proceedings. In both sets of proceedings, the hearings were closed to the public for the purpose, among others, of protecting the rights of the alleged victims and – as regards some of the hearings – the private life of the applicant. 7. On 13 March 1998 an official police report (uradni zaznamek) was prepared concerning the applicant's attitude towards children he had taught in a primary school. It contained a statement given by one of the school teachers which had been obtained in accordance with section 148/2 of the Criminal Procedure Act (Zakon o kazenskem postopku – see paragraph 44 below). The teacher stated that she had not noticed anything strange in the applicant's attitude towards children. She also described an incident where the parents of a boy who the applicant had allegedly abused had come to the school to complain about the applicant's conduct and stated that the applicant had resigned following this incident. 8. On 31 August 1998 the Murska Sobota District Public Prosecutor (Okrožno državno tožilstvo v Murski Soboti) lodged a request for a criminal investigation on the basis of reasonable suspicion that the applicant had committed two criminal offences of sexual assault on a minor under the age of 15 (spolni napad na osebo, mlajšo od petnajst let). The request was based on findings from the preliminary proceedings. 9. On 4 May 1999, after questioning the applicant, the investigating judge of the Murska Sobota District Court (Okrožno sodišče v Murski Soboti) decided to open a criminal investigation, and that decision became final on 12 May 1999. 10. An examination of witnesses scheduled for 25 May 1999 was adjourned at the applicant's request. On 3 June 1999, 9 December 1999 and 21 December 1999 the investigating judge examined several witnesses, mostly for the prosecution. On 4 and 18 April 2000 the court examined several defence witnesses. On 21 April 2000 the applicant proposed a re-examination of certain witnesses. The investigating judge, disagreeing with the proposal, requested the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) at the Murska Sobota District Court to decide on the issue. On 9 June 2000 the chamber dismissed the proposal. 11. On 29 June 2000 the applicant was indicted for the criminal offence of sexual abuse of a minor. The indictment became final on 17 August 2000. 12. On 30 January 2003 the Murska Sobota District Court held a hearing. The applicant's lawyer requested that the alleged victim, who was a minor, be examined as a witness. The minor was consequently examined by the investigating judge on 13 March 2003. 13. The next hearing was held on 8 April 2003. After the hearing, the Murska Sobota District Court convicted the applicant and sentenced him to two years' imprisonment. The written judgment was issued on 11 April 2003. 14. The applicant appealed on 22 May 2003. On 24 March 2004 the Maribor Higher Court (Višje sodišče v Mariboru) dismissed the appeal. Consequently, the first-instance court's judgment became final on 24 March 2004. 15. On 13 July 2004 the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti). On 11 November 2004 the Supreme Court (Vrhovno sodišče) rejected the request. 16. On 31 January 2005 the applicant lodged a constitutional appeal. The proceedings are pending before the Constitutional Court. 17. On 14 April 2003 the applicant was arrested by the police. On 16 April 2003 he was brought before the investigating judge at the Murska Sobota District Court on suspicion of having committed another criminal offence. On the same day the investigating judge remanded him in custody. 18. On 17 April 2003 the public prosecutor applied for a criminal investigation. 19. On 18 April 2003 the applicant appealed against his detention. On the same day the interlocutory-proceedings chamber dismissed the appeal as unfounded. 20. On 24 April 2003 the investigating judge examined the applicant and opened a criminal investigation against him. 21. On 12 May 2003 the detention was prolonged for two months by the interlocutory-proceedings chamber. An appeal by the applicant against the prolongation was dismissed by the Maribor Higher Court on 19 May 2003. 22. On 15 May and 6 June 2003 the investigating judge examined witnesses. On 19 May 2003 the investigating judge appointed two medical experts. The experts submitted their opinions on 26 May and 23 June 2003 respectively. 23. On 9 July 2003 the public prosecutor indicted the applicant for the criminal offences of sexual assault on a minor and of presenting and manufacturing pornographic material concerning minors (prikazovanje in izdelava pornografskega gradiva z zlorabo mladoletne osebe). 24. On 10 July 2003 the applicant's detention was prolonged by a decision of the interlocutory-proceedings chamber. An appeal of 14 July 2003 was dismissed on 16 July 2003 and a request for the protection of legality, lodged on 25 July 2003, was rejected by the Supreme Court on 21 August 2003. It appears that the applicant's detention was subsequently prolonged every two months, the last time on 11 November 2004 (see paragraph 38 below). The applicant's appeals against the prolongation of his detention were dismissed by the second-instance court. 25. On 21 July 2003 the applicant appealed against the indictment. The interlocutory-proceedings chamber dismissed the appeal on 23 July 2003. 26. On 23 September 2003 the court held a hearing. 27. The hearing scheduled for 21 October 2003 was cancelled because the applicant requested the withdrawal of the public prosecutor, all members of the chamber (senat) and the president of the Murska Sobota District Court. The requests were dismissed by the president of the Murska Sobota District Public Prosecutor's Office and the president of the Maribor Higher Court on 23 October 2003 and 5 November 2003 respectively. 28. The hearing scheduled for 4 December 2003 was also cancelled since the applicant requested the withdrawal of the president of the chamber and the president of the court. On 12 December 2003 the requests were dismissed by the president of the Maribor Higher Court. 29. The hearing scheduled for 20 January 2004 was cancelled at the request of the applicant's lawyer owing to her commitments in another – unrelated – case. 30. The hearing scheduled for 5 February 2004 was cancelled owing to a new request for withdrawal based essentially on the same reasons as the previous one. The request was rejected on 17 February 2004. 31. The next hearing was scheduled for 16 March 2004. Before the hearing, the court dismissed a new request for the withdrawal of judges, finding that it was a delaying tactic. As more than three months had elapsed since the last hearing, the court had to conduct the trial ab initio with, in particular, a fresh examination of the applicant and the reading of testimony. The applicant requested that the witnesses and experts be examined again. 32. Before the hearing on 1 April 2004, the applicant again filed a request for the withdrawal of judges, but it was rejected. The applicant requested that the alleged victim be examined again. On 12 April 2004 the alleged victim was examined by the investigating judge. 33. On 22 April 2004, before the scheduled hearing, at around 8 a.m., the applicant injured his finger while opening the window of his cell. At 8.30 a.m. the officers took him to the court intending to ask the judge whether he should be taken to see a doctor immediately or at the end of the hearing. At the court, the applicant requested that jurisdiction in the case be transferred to another court and the hearing was consequently adjourned. Subsequently, on the same day at about 9.30 a.m., the officers offered to take the applicant to see a doctor but he refused to go. At the applicant's subsequent request, made at 1.30 p.m., he was taken to see the doctor at 2 p.m. According to the letter sent by the prison authorities to the Murska Sobota Police, the doctor did not consider the injury to be serious. 34. On 19 May 2004 the Maribor Higher Court dismissed the request for transfer of jurisdiction. On 3 June 2004 the applicant lodged a request for the protection of legality against that decision. The case file was thus sent to the Supreme Court and the first-instance court cancelled the scheduled hearings. On 24 June 2004 the Supreme Court rejected the request. 35. On 23 August 2004 the president of the chamber himself requested to stand down from the proceedings. He expressed doubts as to his ability to conduct the proceedings properly owing to the conduct of the applicant and his lawyer. On 26 August 2004 the case was referred to a new judge. 36. On 14 September 2004 a hearing was held. Before the hearing, the court dismissed the request for the withdrawal of judges and the transfer of jurisdiction, noting that the applicant had abused his procedural rights. On 13 October 2004 a hearing was held at which several witnesses and experts were heard. On 27 October 2004 another hearing was held and the following hearing was scheduled for 11 November 2004. 37. On 10 November 2004 the applicant was taken to the hospital where it was discovered that he had swallowed ten coins. However, the court refused to cancel the scheduled hearing. 38. After the hearing held on 11 November 2004 the court delivered a judgment finding the applicant guilty and sentenced him to twelve years' imprisonment, inclusive of the sentence imposed in the previous set of proceedings (see paragraphs 7-16 above). The written judgment was issued on 29 November 2004. 39. On 14 December 2004 the public prosecutor lodged an appeal. On 16 December 2004 the applicant appealed and on 17 December 2004 the applicant's lawyer appealed. On 17 March 2005 the Maribor Higher Court increased the sentence to fourteen years' imprisonment. The judgment became final on that day. 40. On 8 July 2005 the applicant lodged a request for the protection of legality with the Supreme Court. On 20 April 2006 the court rejected the request. 41. On 16 June 2006 the applicant lodged a constitutional appeal. The proceedings are pending before the Constitutional Court. 42. In Slovenia, criminal proceedings before district courts (okrožna sodišča) are divided into three stages – preliminary proceedings (predkazenski or predhodni postopek), conducted by the police and the public prosecutor; a criminal investigation (preiskava), conducted by the investigating judge of a District Court; and the trial (glavna obravnava), held before a mixed chamber (senat) of professional and lay judges. 43. A trial is preceded by a formal indictment, which normally follows a criminal investigation (preiskava). Prior to that, however, are the preliminary proceedings in which the police prepare a criminal complaint (ovadba) and the public prosecutor then lodges a request for a criminal investigation (zahteva za preiskavo). 44. Section 148 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94, “the CPA”) reads, as far as relevant: “(1) If there are reasons to suspect that a criminal offence liable to mandatory prosecution has been committed, the police shall take the necessary steps to pursue the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or abscond, discovering and securing traces of the offence or objects of value as evidence, and collecting all information that may be useful for the successful conduct of criminal proceedings. (2) In order to fulfil the above duty the police may seek information from citizens, inspect vehicles, passengers and luggage, restrict movement within a specific area for a limited period of time, carry out what is necessary to identify persons and objects; send out a wanted notice concerning persons and objects; inspect in the presence of the responsible person any facilities, premises and documentation of enterprises or other legal entities, and take other necessary measures. The findings of facts and circumstances relevant to the criminal proceedings, as well as the objects found or seized, shall be recorded in writing or an official report shall be prepared in that connection. (3) Police may summon individuals but must inform them of the reasons. They may forcibly bring an individual who has failed to appear after being summoned, if he has been alerted to that possibility in the summons. In taking measures under this section, police may not examine citizens as defendants, witnesses or experts. ... (6) On the basis of the information collected the police shall draw up a criminal complaint in which it shall set out the evidence discovered in the process of gathering information... .” 45. In principle, the request for an investigation is based on the information gathered by the police in the preliminary proceedings (see paragraph 44 above). However, prior to the opening of an investigation, the investigating judge can, if necessary, take individual investigative measures (section 166 of the CPA). 46. The request for an investigation must include, inter alia, a description of the alleged acts and their legal characterization, the identification of the suspect and the evidence substantiating a reasonable suspicion (utemeljeni sum) that the suspect has committed the alleged acts. The public prosecutor can also propose that a suspect be detained on remand. The relevant provisions of section 168 of the CPA provide: “(3) The request for investigation shall specify: the person against whom an investigation is requested, the description of the acts constituting a criminal offence, the statutory designation of the criminal offence, the circumstances establishing the reasonable suspicion, and evidence already collected. The public prosecutor shall indicate in the request which particular circumstances should be explored in the investigation and which particular measures should be taken, and may propose that the person against whom investigation is requested be detained. (4) The public prosecutor shall send to the investigating judge the report and all documents and records of the measures taken. At the same time, he shall send to the investigating judge any items to be adduced as evidence or shall notify him of their whereabouts. (5) If the public prosecutor withdraws a request for an investigation before the decision on investigation is rendered, the investigating judge shall decide that the request is dismissed and inform the aggrieved party that he or she may take over the prosecution (sections 60 and 62).” 47. There is no provision in the CPA requiring the applicant to be notified at this stage. A copy of the request for an investigation is normally sent to the applicant later, together with a summons to appear before the investigating judge (section 169/4 of the CPA). 48. The public prosecutor's request for an investigation requires a decision by the investigating judge. The investigating judge may comply with the request and open a criminal investigation or, if he does not agree with it, refer it to the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) for them to decide. Appeals may be lodged against the decision dismissing or upholding the request (section 169 of the CPA). 49. After the closure of the criminal investigation the public prosecutor prefers a formal indictment or otherwise drops the charges (sections 184 and 268 of the CPA). 50. As regards the guarantee of the right to a trial within a reasonable time, the CPA, as far as relevant, provides (sections 15, 185 and 286 respectively): “The court shall use its best endeavours to ensure that the proceedings are conducted without unnecessary delay and that any abuse of the rights of participants in the proceedings is prevented. (1) If the criminal investigation is not completed within six months, the investigating judge shall inform the president of the court of the reasons. (2) The president of the court shall take the necessary measures to complete the investigation. (3) The presiding judge shall schedule the main hearing within a maximum period of two months after an indictment has been referred... Should he fail to schedule the main hearing within the said period, he shall inform the president of the court of the reasons for not doing so. The president of the court shall take the necessary measures to schedule the main hearing.”