CASE OF RASTODER v. SLOVENIA
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
6. The applicant was born in 1950 and is detained in Dob pri Mirni. 7. On 18 March 2006 a person called A.Č. called the police and informed them that three people had been stabbed in the town of Izola. Only the injured people, namely Š.A., S.M, and F.M, were found at the place of the incident. A few hours later the applicant and his two sons, A.R. and E.R., were arrested on suspicion of attempted murder. 8. On 20 March 2006 the applicant, A.R. and E.R. were brought before the investigating judge. The applicant, who was assisted by counsel, gave the following statement in his defence. He alleged that he had intended to meet Š.A. in order to demand that he pay rent for workers who had previously been accommodated in his flat and to cancel their residence registration at that address. Before he set off to a bar where Š.A.’s workers met after work (hereinafter “the bar”), he telephoned his sons and asked them to come and assist him in case he met any trouble from Š.A. After Š.A. refused to resolve the matter, the applicant left the bar and was followed by between ten and twelve of Š.A.’s workers. Š.A. and F.M., one of the workers, started hitting the applicant all over his body. His sons, standing nearby, came to his aid. After Š.A. hit A.R., the applicant, an electrical fitter by profession, took out the knife he used for work, which had a seven- to eight-centimetre blade, and began brandishing it. Among others, he stabbed Š.A. several times in the back. Š.A. then backed off and the applicant and his sons fled the scene. Once at home the applicant gave the knife to his wife, who disposed of it. The applicant also stated that the only injuries he had sustained had been some bruises on his head. 9. The applicant’s sons stated that their father had met with Š.A. and another person and that a fight had started. When they had gone to help him, a number of other men had approached and had started beating them. The applicant’s sons also stated that they had not been carrying any knives themselves. According to them, E.R. had defended himself with a wooden clothes hanger. 10. The injured parties, S.M., F.M., and Š.A., were also questioned in the investigation and they stated, inter alia, as follows. 11. F.M. stated that after leaving the bar he had been attacked by the applicant, who had hit him on the nose with the handle of the knife. S.M. and Š.A. had arrived after that and the applicant had again attacked F.M. E.R. had attacked S.M. while A.R. had attacked Š.A. In the course of the fight the applicant had stabbed F.M. and had also attacked S.M. and Š.A., before fleeing the scene. The applicant and his sons had had knives. The applicant’s knife had had a ten-centimetre blade. 12. S.M. stated that he had heard people saying there was a crowd outside the bar, he had gone out and found F.M. being hit in the face and running. He had then seen the applicant attacking F.M. He had attempted to separate them, but E.R. had stabbed him. E.R. had then fled and the applicant had stabbed him several times, which had caused him to faint. 13. Š.A. testified that after being told that something was going on outside the bar he had gone out and found S.M. and F.M. being attacked. He had attempted to help S.M., who had been stabbed in the neck by the applicant, and F.M. He had been stabbed in the back several times by the applicant. 14. In addition to the accused and the injured parties the investigating judge questioned five witnesses – A.Č., M.H., Đ.Š., Še.A. and I.B. 15. A.Č. testified that he had noticed the applicant and his sons, together with F.M. and another person, standing a few metres from the bar. Š.A. had approached them and a few seconds later they had started to fight. According to A.Č., only those six people had been involved in the fight. He had not seen any weapons, but had seen blood on Š.A.’s shirt. In addition, the third victim (S.M.) had been holding his neck. A.Č. also stated that he had called to his acquaintance M.H. to telephone the police. 16. M.H. gave a fairly detailed account. He explained that he had seen the applicant in the bar arguing with Š.A. and then leaving around thirty minutes before the fight. Twenty minutes later F.M. and S.M. had left the bar as well. Š.A. had received a call and had gone out. After being alerted by A.Č. and seeing the fight through the window, he had gone out of the bar and had seen the applicant and his sons, as well as S.M., F.M., and Š.A., fighting. He testified that the applicant and his sons had been the weaker parties in the fight until the applicant had pulled out a knife, saying, “Now let us see”, and using it to attack Š.A., F.M. and S.M. He added that he had not seen the applicant’s sons handling any knives and also described the applicant’s knife as having a blade of about eight to ten centimetres. 17. Đ.Š., the third witness, stated that between 6 p.m. and 7 p.m. on the day in question he had first seen the applicant and later his sons park their cars in front of the bar where the events at issue took place. Đ.Š. and his friend had then approached the bar and had seen S.M. lying unconscious on the ground. 18. On 10 April 2006 the investigating judge questioned I.B. and Še.A. in the presence of the district public prosecutor and counsel for A.R., who were also allowed to put questions. I.B. told the investigating judge that he had been walking home with Še.A. when he had seen the applicant, his sons, and F.M. coming out of the bar. The applicant had had his hand in his pocket and appeared to be holding something. He had seen him pointing at F.M. and heard him telling his sons, “This is [F.M.]”. He had later seen his brother-in-law (S.M.) lying on the ground with blood on his head. The police and an ambulance had arrived. 19. Še.A. stated that he and I.B. had been on their way home when F.M. had come out of the bar and told them to wait. Še.A. had then noticed the applicant and his sons. He had seen the applicant pointing at F.M. and saying something, whereupon the applicant had gone towards F.M. and hit him in the face with the handle of his knife. As F.M. had moved away, towards the bar, one of the applicant’s sons had approached. Both S.M. and Š.A. had come out of the bar at that moment and a fight had broken out between E.R., S.M., and the applicant and F.M., A.R. and Š.A. Še.A. had approached the fighting men and tried to separate E.R. and S.M. E.R. had then struck S.M. with a knife, but when Še.A. had approached, he had turned to him. Še.A. had got scared and had run away. Še.A. described the knife as being old, with a blade of between ten to fifteen centimetres, but could not remember further details. Še.A. stated during the questioning that his work visa was valid until January 2007. 20. In May 2008 the court summoned the witnesses, including I.B. and Še.A., to a hearing that had been scheduled for 11 September 2008. The summons for I.B. was served on his neighbour while Še.A.’s was served on his wife. The court subsequently cancelled the hearing and ordered that the witnesses, including I.B. and Še.A., be summoned to a hearing on 25 September 2008. However, since I.B. and Še.A. no longer had a place of residence that was registered in Slovenia, the court on 21 November 2008 asked the Police Department for International Cooperation to investigate where the two witnesses were living. Further to another request from the court, the Izola Administrative Unit informed it that Še.A. had cancelled his residence status in Izola on 17 January 2008 and that I.B. had cancelled his on 20 December 2006. It appears that the police registered their enquiries about the whereabouts of I.B. and Še.A. in the Schengen system. 21. After receiving information from the authorities of the former Yugoslav Republic of Macedonia, the Slovenian police informed the court on 23 January 2009 of I.B.’s address, whence the court subsequently sent the summons. On 20 March 2009 the Court received a statement from I.B., given to a notary, in which he excused himself from attending the hearing, saying that he needed a visa to enter Slovenia. However, in order to comply with the summons, he included his testimony, which he had given to the notary. He stated that he did not remember exactly when the incident in question had happened but thought it was around two years earlier, when he had had a temporary job as a construction worker in Slovenia. He had at that time been in the process of moving from the applicant’s apartment to Š.A.’s apartment. As to the incident, he said that he remembered seeing S.M. lying on the ground and the police and ambulance arriving at the scene. 22. In April 2009, further to indications from the authorities of the former Yugoslav Republic of Macedonia and the injured parties’ counsel that Še.A. was in Italy, the Italian authorities checked their data, but stated that Še.A. had never had any registered address in that country. On 18 May 2009 the Office of the General Police Administration informed the court that the border police had talked to Še.A. when he had crossed the Slovenian border. He had given an address in the former Yugoslav Republic of Macedonia and Italy and his mobile telephone number. 23. After his wife received the summons at his address in the former Yugoslav Republic of Macedonia, Še.A. wrote to the court to say that his father was very ill and that therefore he could not travel for the following two to three weeks. In addition, he said that he had been working in Italy since September 2008 and could not travel to Slovenia as he would risk losing his job. He added that he had already given a statement regarding the charges against the applicant and the other defendants and had nothing to add. The court received the letter on 25 May 2009. 24. On 16 May 2006 the district state prosecutor lodged an indictment against the applicant, E.R. and A.R. for the attempted murder of Š.A., S.M. and F.M. 25. Seven hearings were held, taking place on 25 September 2008, 27 November 2008, 29 January 2009, 19 February 2009, 10 April 2009, 29 May 2009 and 17 June 2009. 26. At the hearing of 29 May 2009, at which the applicant and his counsel were present, the court noted that Še.A. had sent a letter in reply to the summons (see paragraph 23 above). After the letter had been read out, the panel of judges took a decision that his and I.B.’s statements to the investigating judge should be read out at the hearing, finding that the conditions set out in point 1 of the first paragraph of section 340 of the Criminal Procedure Act had been met (see paragraph 39 below). The record of the hearing shows that no comments on the reading out of the statements were made by those present. 27. The accused, the injured parties and the witnesses A.Č., M.H. and Đ.Š. were examined at the hearings. - The applicant kept to the statement he had given to the investigating judge and repeated that he had acted in self-defence. He now alleged that the blade of the knife had been only three centimetres long. - A.R. maintained that he had gone to help his father but the workers had started to beat him as well. Š.A. had been on top of him, hitting him until he had managed to escape. A.R. also stated that he had had no plans to meet his brother in Izola that day. - E.R. stated that he had only wanted to have a coffee with a friend but had ended up in a fight, and having to defend himself until he had passed out. He denied that he had had a knife that day and said that he had not seen his brother or father carrying one either. - S.M. repeated what he had said during the investigation (see paragraph 12 above), adding some details about which of the three accused had stabbed him and where, attributing most of the injuries to the applicant. He explained that he had assumed that F.M. had been hit in the face as he had seen him holding his hand there and added that the applicant’s knife blade had been ten to fifteen centimetres long. - F.M. added further details to his statement from the investigation (see paragraph 11 above), testifying how he had been stabbed by the applicant and that he had seen the applicant stabbing S.M. and Š.A. before fleeing the scene. - Š.A. described how he had been stabbed by the applicant and his sons. He also testified that before arriving on the scene he had received a brief telephone call from Še.A., who had told him that the men had been attacked outside. When he had gone outside he had seen S.M. on his knees and the applicant stabbing him. Š.A. denied that the applicant or his sons had called him that day. He was asked to explain the difference between his testimony during the investigation, when he said he had fought with one of the applicant’s sons, and at the hearing, when he had said that he had not fought back. He stated that he had remembered the events better during the investigation. - A.Č. repeated what he had said during the investigation (see paragraph 15 above). - At his first examination M.H. repeated what he had said during the investigation (see paragraph 16 above). Six months later, he changed his statement and alleged, among other things, that the fight had started after Š.A. had first hit A.R. - Đ.Š. stated that he had seen E.R. parking his car and going directly into the bar. He had arrived at the scene with his friends and had found S.M. lying unconscious on the floor. 28. The panel also questioned Dr G.R., the surgeon who had treated all three victims at the local hospital and who explained the severity of the individual wounds sustained by the victims. The court also obtained the testimony of two medical experts. Dr A.Š. made an assessment of the victims’ individual injuries, the most likely manner in which they had been sustained, the angles of the stab wounds, and so forth. The doctor stated that Š.A. had sustained four wounds to his back and a number of wounds to his chest. S.M. had been stabbed seven times from behind, five times in the neck and on the back of the head, once to the left shoulder and once in the left side of his chest. F.M. had been stabbed in the stomach. Dr D.M.S. performed a clinical examination of Š.A. in order to assess his wounds in more detail. 29. The panel also examined several documents that had been called in evidence. Medical reports relating to the applicant and his sons showed that they had sustained minor injuries, the applicant notably sustaining only a few contusions (on the right forearm, above the left scapula and on his left eye, which remained undamaged). Other evidence showed that the applicant had been in a dispute over workers hired by Š.A. who had vacated the applicant’s flat. Š.A. had not made a declaration of a change of residence to the competent administrative authority, although as an employer and new landlord he should have done so. Furthermore, telephone records showed that the applicant and Š.A. had had three conversations on the day of the incident. Moreover, A.R., the applicant’s son, had called his father a number of times that day just before the fight broke out. 30. On 19 June 2009 the Koper District Court panel found the applicant guilty of attempting to murder S.M., F.M. and Š.A. by stabbing the first in the neck, on the back of the head and the left side of his chest, the second in the left side of the stomach and the third in the back. Two of the offences had been aided and abetted by the applicant’s sons, who were each convicted of one count of attempted murder. The court sentenced the applicant to five years and ten months in prison, while his sons were both sentenced to one year and two months in prison. 31. In a judgment of fifty-four pages, the court established on the basis of the testimony, telephone and GPS data that the applicant had called Š.A. on the day of the attack in order to discuss the workers’ change of residence, but they had been unable to resolve the matter. Consequently, the applicant had gone to the bar with a view to get the workers to sign written statements concerning their change of residence. He had asked F.M., who had been in the bar with S.M., to sign the statement, but he had refused. After that the applicant had again called Š.A., but to no avail. Being informed of the situation by the applicant, A.R. and E.R. had joined him and they had together gone in search of F.M. and Š.A. They had stopped F.M. near the bar and the applicant had hit him in the face with the handle of the knife. F.M. had withdrawn in the direction of the bar, and had been joined by S.M. and Š.A., who had been informed about the attack by the telephone call from Še.A. A fight involving the six men had then started, with the accused being prepared for it as they had been equipped with knives. It had finished when the applicant and his sons had left the scene and Š.A. had called the police. 32. The court found that only five minutes had passed between F.M. being stopped by the applicant and his sons and the call to the police, while the fight and stabbing could not have lasted more than two minutes. In particular, the court established that Š.A. had received the call from Še.A. at two minutes and forty eight second past eight in the evening and that less than three minutes later Š.A. had called 113. In the meantime, he had been stabbed several times. As regards the other circumstances of the fight, such as who had hit whom, the court relied on the testimony of S.M., F.M., and the witnesses A.Č. and M.H. The court, taking into account the fact that the injured parties could not have been expected to pay particular attention to what was happening to others while they themselves were engaged in the fight, found their testimony mostly consistent, except for the question of when Š.A. had joined the fight. The court took the view on that point that the fight had only broken out after Š.A.’s arrival, contrary to what he himself had alleged. The court further found M.H.’s initial testimony (see paragraph 16 above) to be the more persuasive of the two, and that it was in line with the findings of the medical experts. It found that E.R. had initially fought with S.M., the applicant with F.M., and A.R. with Š.A. – a fact which the court found confirmed by the testimony of “S.M., F.M., and also the witnesses A.Č. and M.H., and Še.A.” Referring to M.H.’s initial testimony and the applicant’s statement during the investigation, which it found was also supported by Še.A.’s testimony, the court rejected the applicant’s statement at the hearing that his knife had only had a three-centimetre blade. 33. Regarding the applicant’s argument that he had acted in self-defence, the court found that “the statements given by the accused were contradictory and refuted self-defence ... [and] the evidence produced at the hearing completely excluded that possibility [of self-defence]”. The Court found that only the defendants and the three injured parties had engaged in the fight and that if Š.A. had wanted to attack the applicant he could easily have outnumbered the defendants. The applicant and his sons had been motivated by anger towards Š.A. and F.M., while S.M. had become involved because he had tried to protect F.M. As the applicant had failed to convince F.M. to cancel his residence status, he had resorted to violence. If the applicant had felt that he was in danger, he could simply have walked away. Instead, he had provoked a fight, together with his sons. The court also found that while the applicant had admitted to stabbing Š.A. several times in the back, he and the other two defendants had not addressed the fact that the injured parties had sustained other stab wounds too. Moreover, the court noted that none of the witnesses had testified that the applicant had lain on the floor and been kicked by the other men. The court found that since the defendants had been prepared for a fight in advance the injured parties should be believed when they stated that they had in fact been attacked and that they had responded by fighting back. It considered the injured parties’ description of how they had obtained the wounds to be persuasive. Having regard to the fact that the fight was of short duration, the court found that the defendants had pulled their knives out quickly and had quickly “finished with” the injured parties. The court further found that as the victims had sustained fourteen stab wounds altogether, it was plausible that the applicant had not been the only assailant, but that all three defendants had inflicted them. Finally, the court dismissed the applicant’s argument that he had pulled the knife out after being attacked by ten people as “unrealistic”. 34. In the judgment the court also explained the reasons for reading out I.B. and Še.A.’s statements. It noted that the two witnesses had not attended the hearing, despite being properly summoned, and that counsel for the defendants had been offered the possibility to attend their questioning during the investigation. 35. The applicant appealed to the Koper Higher Court, complaining, inter alia, that the first-instance court had violated his defence rights by relying on the record of the testimony that I.B. and Še.A. had given during the investigation. 36. On 7 July 2011 the higher court dismissed the applicant’s appeal. As regards the applicant’s alleged inability to cross-examine I.B. and Še.A. at the trial, the higher court considered that the applicant had had an opportunity to question the witnesses during the investigation. It noted that counsel for the applicant had been informed about the hearing with the investigating judge, as confirmed by an acknowledgment of receipt, but had failed to attend it. According to the higher court, the defence had been aware of the notice of the possibility to participate in the questioning of witnesses during the investigation but had consciously disregarded it. Hence, it had accepted the risk that the witnesses would not be available for questioning at the trial. Moreover, the higher court considered that the applicant had failed to comply with paragraph 2 of section 371 of the Criminal Procedure Act (see paragraph 39 below) as he had not substantiated in what way his inability to question the two witnesses at the trial had undermined the legality of the judgment. 37. The applicant lodged an appeal on points of law, which was dismissed by the Supreme Court on 24 August 2012. The court confirmed that the first-instance court had correctly applied section 340 of the Criminal Procedure Act by reading out the testimony given by I.B. and Še.A. during the investigation as the witnesses, who were foreigners, had been duly summoned to appear before the court but had refused to attend. The Supreme Court further found that section 178(4) of the Criminal Procedure Act provided that the investigating judge should have sent the request to attend the questioning directly to the defendants as well as to counsel. However, according to the Supreme Court, the applicant had failed to explain how that error on the part of the investigating judge had affected the legality of the impugned judgment. In the Supreme Court’s opinion, the error could only have affected the legality of the judgment if the first-instance court had relied on the testimony of I.B. and Še.A. to a decisive extent, which, however, had not been alleged in the case. 38. The applicant lodged a constitutional complaint. The Constitutional Court dismissed the complaint on 24 December 2012, pursuant to section 55b of the Constitutional Court Act (see paragraph 40 below).