CASE OF ŠMAJGL 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)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1959 and is currently detained in Dob prison. 6. The applicant was engaged in a business providing online sexual services, which was registered in Všenory in the Czech Republic. He cooperated with certain Dutch and American enterprises. In September 2001 a dispute arose between the applicant and his Dutch partners, one of them being H.C.Z., who wished to discontinue their cooperation. After meeting H.C.Z., together with his bodyguard E.M.L., also a Dutch national, in Prague on 14 September 2001, the applicant connected one of the studios involved in the production to the network of his American partner. 7. On 18 September 2001 the applicant, his brother M.Š. and another Slovenian citizen, A.S., were in a villa in Všenory where the applicant had set up his studio. The applicant had arranged another meeting with H.C.Z., so in the evening the latter appeared at the villa accompanied by his bodyguard E.M.L. Ms M.S. and another three persons were also present in the villa. The applicant, M.Š., H.C.Z. and E.M.L. then met in the bedroom, where H.C.Z. was shot dead. 8. After the shooting, the applicant, M.Š. and A.S. fled the scene of the crime and eventually returned to Slovenia. Bruised and scared, E.M.L. was later that evening found by police hiding in nearby bushes. 9. During the preliminary investigation, on 19 and 20 September 2001 the Czech authorities questioned E.M.L., who stated that H.C.Z. had been killed by the applicant. E.M.L. provided a detailed description of the applicant and an account of the events at issue. He stated that he had come to Prague together with his boss H.C.Z. and had made the applicant’s acquaintance a few days before the shooting, adding that at the first meeting the applicant had appeared hostile to him. E.M.L. met the applicant briefly once again before the evening of 18 September. 10. According to E.M.L., on the evening in question, the applicant asked for a meeting with H.C.Z., so he and E.M.L. drove to the villa in Všenory. The door was opened to them by a young man, who was later identified as A.S. A woman whom they had also met before – Ms M.S. – was sitting in the living room. H.C.Z. was called into the bedroom, while E.M.L. waited outside the open bedroom door. The applicant and another man E.M.L. did not know were standing in the room. E.M.L. described the other man as looking a lot like the applicant, almost his twin, only older. While that man neither spoke nor did anything, the applicant immediately pulled a gun from behind his back, aimed at H.C.Z.’s forehead, and fired at him. After the first shot, E.M.L. turned around and started to run. In the corridor he passed A.S. and ran out through the main door, to the street and into the bushes. E.M.L. stated that he had heard another shot being fired before he escaped from the villa. He then saw the applicant and A.S. follow him, but after a ten-minute search they left, and soon afterwards he heard a car driving away from the villa very fast. 11. The investigators also examined a number of other witnesses involved in the applicant’s business, among whom M.S., who stated that the applicant had a particular interest in firearms. On the day of the shooting, M.S. was in the living room together with the applicant, A.S., and the applicant’s brother M.Š., whom she described as a man looking older than the applicant. When the doorbell rang, A.S. opened the door and two men entered the living room. According to M.S., the applicant and M.Š. were in the bedroom when H.C.Z. and E.M.L. entered the living room. H.C.Z. stepped forward into the bedroom, while E.M.L. stood at the bedroom door. Immediately after H.C.Z. entered the bedroom, M.S. heard four to five shots. E.M.L. ran away, and the applicant and A.S. followed him. According to M.S., M.Š. also ran after E.M.L., with a gun in his hand. Another two women and a man were present at the house and heard the shots, but did not witness the shooting. They stated that A.S. and the applicant would not allow them to call the police at first, but after the three men left one of the women called the police. 12. In addition to taking statements from the witnesses, the Czech authorities examined and recorded the scene of the crime, and performed a forensic examination of H.C.Z.’s body and a ballistic examination of the bullets and cases found at the scene of the shooting. After the investigation was concluded, the competent prosecutor charged the applicant with the murder of H.C.Z. The indictment was served on his court-appointed lawyer on 10 October 2001. However, since the applicant was eventually found to have gone back to Slovenia and voluntarily begun serving a prison sentence for an unrelated offence, the Czech authorities contacted the Slovenian authorities, seeking to take over the proceedings against the applicant. 13. In January 2002 jurisdiction over the case was transferred to the Novo Mesto District Court. When questioned by the investigating judge on 2 August 2002, the applicant stated that H.C.Z. and E.M.L. had come to the villa threatening them. E.M.L. was carrying a gun and forced the applicant to lie down on the floor, while H.C.Z. ran into the bedroom. The applicant heard some commotion and then a few shots were fired. A few moments later E.M.L. left the villa. The applicant followed him out and saw another, unknown man standing outside by the car. The applicant understood that E.M.L. had ordered the other man to bring reinforcements and kill the people in the villa. E.M.L. then went towards the nearby woods. The applicant went back inside and saw H.C.Z.’s dead body in the bedroom. The applicant, M.Š. and A.S. later drove away in their car, but were afraid to go to the police for fear of being killed. 14. In a statement made on 26 June 2002 the applicant’s brother M.Š. confessed to the murder of H.C.Z. He was subsequently questioned by the investigating judge on 21 August 2002 and stated that he had been woken up by the arrival of H.C.Z. and E.M.L. The day before, he had bought a gun for protection from the applicant’s business competitors, which he had put under the pillow. Hearing the visitors, M.Š. tucked the gun into his belt and got out of bed. The door to the bedroom suddenly opened and H.C.Z. came into the room, while another, dark-skinned man (E.M.L.) stood at the door, holding something in his hand. M.Š. heard someone say “He’s got a gun”, and understood that it was E.M.L. who was holding a gun. M.Š. pulled out his own gun and pointed it at H.C.Z. to show that he would defend himself if attacked. However, H.C.Z. laughed and approached him, so M.Š. fired a warning shot at the floor. H.C.Z. nevertheless came close to him and hit him in the face. M.Š. then fired a shot at him in self-defence; nevertheless H.C.Z. attacked him and tried to push him to the ground. When M.Š. managed to break free from H.C.Z.’s grip, he fired again, this time hitting H.C.Z. who staggered away and fell to the bed. M.Š. stated that he was holding the gun at waist level, trying at the same time to get free from H.C.Z.’s grip, and that the shots were fired from that position. 15. According to M.Š., he and H.C.Z. were the only two people in the bedroom, the applicant and A.S. having been forced to lie down on the floor by E.M.L. When M.Š. looked in to the other room they were getting up from the floor. The applicant and A.S. told M.Š. that another person was standing in front of the villa. They were all scared, so they packed their things and drove away. M.Š. added that he had thrown the gun away at their first stop on the motorway, still in the Czech Republic. 16. On 20 September 2002 A.S. was questioned by the investigating judge and stated that he had opened the door when the bell rang. The applicant also came out of the bedroom. H.C.Z. and E.M.L. entered the villa, E.M.L. ordering A.S. and the applicant to lie on the floor in the corridor. E.M.L. was holding a gun. H.C.Z. moved forward into the living room. A.S. then heard two or three shots being fired inside the villa. He waited a few moments and when he lifted his head, E.M.L. was gone. M.Š. came out into the corridor, holding a gun in his hand. The applicant, A.S. and M.Š. then went into the bedroom to check on H.C.Z., whom they found dead. 17. On 1 October 2002 the district state prosecutor’s office lodged an indictment charging the applicant with murder. At the trial hearing conducted by the Novo Mesto District Court the applicant changed his statement, claiming that when the doorbell had rung he had been in the bedroom collecting some business-related documents, while his brother M.Š. had been lying on the bed. He had heard hissing sounds from the other room, so he went out to check what was happening, but was stopped at the bedroom door by H.C.Z., who grabbed him by the chest with one hand and signalled to E.M.L. with the other. H.C.Z. dragged the applicant out of the bedroom and across the living room and then he went back into the bedroom. The applicant saw his brother get up from the bed and point his gun at H.C.Z. Meanwhile, E.M.L., who had a gun in his hand, ordered the applicant to lie down on the floor. Kneeling down, the applicant saw H.C.Z. hit M.Š. in the bedroom, and he also saw that M.Š. was holding a gun. Then he heard four shots. After the shooting stopped, E.M.L. ran away, shouting that they were all finished. The applicant, who followed him out, saw a silhouette of another man standing beside a car parked outside. The applicant, M.Š. and A.S. were afraid of retaliation for H.C.Z.’s death, so they quickly escaped. 18. When faced with inconsistencies between his previous statement made during the investigation and the account he gave at the trial, the applicant explained that he had not wished to implicate his brother in H.C.Z.’s death and that he had been in poor health when he had given his previous statement. 19. The applicant’s brother M.Š. again asserted that he had thrown the gun with which he had shot H.C.Z. away once they had reached the motorway and started to feel safer. Moreover, M.Š. stated that he did not think that he could be mistaken for his brother, as the applicant was more strongly built and dressed in a higher-class way. 20. On the basis of the forensic analysis of the crime scene and the case file submitted to the Slovenian authorities by the Czech authorities, a forensic ballistic report was prepared by a ballistic expert, F.S. He found that H.C.Z. had suffered three gunshot wounds, one to the front of his chest, another to the right side of his stomach and the third to his left arm. The expert found that H.C.Z. had been shot in the stomach at a range of less than 10 cm; however, the gun barrel did not touch his body at the moment of impact. However, the bullets which had hit H.C.Z.’s left arm and chest were fired from more than 50 cm away. Considering that two bullets and three cartridge cases were found at the crime scene, F.S. presumed that one shot hit the wall either directly or after causing a wound to H.C.Z.’s left arm, and that the force of the impact caused the bullet to shatter. Another bullet was found in H.C.Z.’s chest, while the bullet that had entered his stomach had exited his body under the shoulder blade. According to the expert, at the moment of the shooting H.C.Z. was entering the room, while the shooter was inside the room, firing all three shots while standing. Having regard to these considerations, F. was of the view that the account of the events given by E.M.L. was both possible and likelier than the account given by M.Š., which was not possible at all. No shot had been fired at the floor, and no shot had been fired while the shooter and H.C.Z. were in direct contact as described by M.Š. 21. Furthermore, a medical report establishing the cause of H.C.Z.’s death was prepared, also on the basis of the Czech case file. Medical expert A.Š. found that H.C.Z. had died as a result of internal bleeding which was due to trauma caused by gunshot wounds to his body. He was hit by two or three bullets, twice from a distance of more than 50 cm and once from a distance of less than 10 cm. Given the direction of the bullets and the angle at which they entered H.C.Z.’s body, A.Š. concluded that the shooter and the victim were standing facing each other and that the victim was approximately 20 cm taller than the shooter. Also, A.Š. confirmed that the injuries to H.C.Z.’s body were consistent with the account given by E.M.L., while M.Š.’s account did not correspond to the forensic conclusions. 22. E.M.L. was summoned to the trial hearing but did not appear. The applicant nevertheless requested the opportunity to cross-examine him in order to clarify the circumstances of the shooting and the exact positions of everyone who was in the bedroom at the material time. M.S. and two other witnesses did not appear at the trial hearing either. The trial court decided to read out the statements they had given during the investigation. 23. On 17 January 2003 the Novo Mesto District Court found the applicant guilty of murdering H.C.Z. and sentenced him to thirteen years’ imprisonment. 24. Both the district prosecutor and the applicant appealed against the judgment, and on 12 June 2003 the Ljubljana Higher Court granted the prosecutor’s appeal, increasing the applicant’s prison sentence to fifteen years. 25. The applicant lodged a request for the protection of legality (appeal on points of law, an extraordinary legal remedy) before the Supreme Court, which was granted on 19 May 2005. The applicant’s complaint that he should have been given the opportunity to cross-examine E.M.L. and other foreign witnesses was found to be well grounded, and the case was remitted to the District Court for re-examination with the instruction that the applicant be given the opportunity to cross-examine E.M.L., who was considered the key witness in the case against him. 26. During the re-trial, the Novo Mesto District Court obtained a ballistic report prepared by the Czech experts, which corresponded to the conclusions of the Slovenian expert F.S. about the number of shots fired and the trajectories of the bullets. The applicant, however, who by then had regained his liberty, obtained a report prepared by another ballistic expert, V.M., who criticised on certain points of the report prepared by the expert F.S. In particular, V.M. took the view that the shots could have been fired from a closer range than that established by F.S., and that the latter’s conclusion that H.C.Z. had been standing at the moment of impact was not supported by the available material evidence. In this light, the applicant requested the District Court to appoint a new ballistic expert and to perform a special 3D reconstruction of the crime scene. 27. The District Court also summoned E.M.L., M.S. and a certain A.B., who had also been involved in the internet services featuring interactive sexual content, to testify at the hearing scheduled for 15 November 2005. However, on that date none of the witnesses appeared before the court, so the District Court requested legal assistance from the Czech and Dutch judicial authorities, asking its foreign counterparts to hear the three witnesses in the applicant’s presence. 28. On 13 January 2006 M.S. was questioned by the Local Court in Hradec Králové, Czech Republic, in the presence of the applicant and his counsel. M.S. again testified that on the evening of the events at issue, H.C.Z. and E.M.L. had come into the living room asking for the applicant. Then H.C.Z. went into the bedroom, while E.M.L. stopped at the door. M.S. did not remember hearing any voices, but immediately after H.C.Z. stepped inside M.S. heard four or five shots being fired in the bedroom. M.S., frightened, went into the corner of the room and saw E.M.L. running through the room, followed by the applicant, A.S. and M.Š., who was holding a gun. However, M.S. pointed out that she could not see into the bedroom and could not say who had fired the shots. 29. On 28 March 2006 the investigating judge of the Regional Court of The Hague, examined E.M.L., who gave essentially the same account of events as during the investigation, reiterating that he was entirely convinced that the person who had shot H.C.Z. was the applicant, while another man very similar to the applicant had also been present in the bedroom where the shooting had taken place. E.M.L. declared that he would not be willing to appear at the trial in Slovenia or in the Czech Republic because he was afraid for his life, adding that he was ready to cooperate, but only in the Netherlands. 30. The investigating judge also heard A.B., who had testified that the applicant had worked for him in the Czech Republic but had then tried to take over his business and had threatened him several times, also with a gun. Moreover, A.B. stated that he had warned H.C.Z. about the applicant, but the latter would not be intimidated and left for Prague anyway. 31. At the hearing on 12 April 2006 the Novo Mesto District Court established that the applicant and his counsel had not been notified about the questioning of E.M.L. and A.B. due to the urgency of the matter. The court decided to request the Dutch authorities to give the applicant the opportunity to cross-examine those witnesses; however, the investigating judge of the Regional Court of The Hague refused to allow the applicant to attend the examination in person, finding that the witnesses’ safety could be at risk and that they might not be willing to give a statement. Having been informed about the decision of the Dutch investigating judge, the applicant insisted, at the hearing on 16 June 2006, that he should be given the opportunity to personally confront E.M.L., or else the latter’s statement should be excluded from evidence. 32. The second examination of E.M.L. and A.B. on 4 July 2006 was conducted in the presence of the applicant’s counsel, who asked them a number of questions, some of which had been previously prepared by the applicant. A.B.’s testimony mostly concerned his and the applicant’s role in the business they had been involved in in the Czech Republic. As regards E.M.L.’s testimony regarding the shooting of H.C.Z., it was to a large extent consistent with his previous statements; however, when asked to identify on the floor plan of the bedroom where the shooting had taken place the location of the applicant and that of his brother M.Š., E.M.L. showed opposite positions to the ones he had shown when questioned by the Czech police in 2001 and by the Dutch investigating judge for the first time. Alerted to the similarity between the applicant and his brother, E.M.L. responded that he had definitely recognised the applicant at the material time. When asked if he could still recognise the applicant and M.Š. and distinguish between them, E.M.L. responded that he had only seen the applicant twice, but thought that he could recognise him, although he could not say so with certainty. However, he acknowledged that as he had only seen the applicant’s brother M.Š. once, and that very briefly, he was not certain he could still tell the difference between them. Lastly, E.M.L. emphasised again that he was not willing to attend the trial in Slovenia, adding that neither would he consent to being questioned by video link if that meant that the applicant could see him. 33. E.M.L.’s and A.B.’s statements were later read out at the hearing before the Novo Mesto District Court in accordance with the rules of domestic criminal procedure (section 340 § 1 of the Criminal Procedure Act) which provide that a witness’s statement may be read out if he or she lives abroad and fails to appear at a hearing despite being duly summoned. Hearing E.M.L.’s testimony, the applicant commented that E.M.L. had switched the positions of himself and his brother during the shooting, which meant that he had confused the two brothers for one another. 34. Meanwhile, on 24 April 2006 the Šmarje pri Jelšah Traffic Police stopped the applicant and found a gun in his car. The applicant told the officers that the gun had been used in the 2001 murder in the Czech Republic. He further alleged at the trial that his brother M.Š. had told him where he had discarded the gun back in 2001. Returning from the Czech Republic, where he had been at the hearing of M.S., the applicant had gone to find the gun. M.Š. supported the applicant’s account of events by specifying that he had not thrown the gun away, as previously stated. He had in fact hidden it under a concrete plate and had later drawn a map showing the approximate location of the gun, so that the applicant would be able to find it. Ballistic expert F.S. established that the gun corresponded with the model and the calibre used in the murder of H.C.Z. Moreover, the gun was clean and oiled, with no traces of corrosion or any other imperfections. F.S. thus concluded that the gun could not have been left out in the open for several years. The Czech ballistic experts confirmed that the bullets and cartridge cases submitted to them by the Slovenian authorities matched the bullets and cartridge cases found at the crime scene and in H.C.Z.’s body, and had undoubtedly been fired from the same weapon. 35. Moreover, ballistic expert F.S. and medical expert A.Š. were heard by the Novo Mesto District Court and explained the conclusions of their reports. The applicant, not persuaded by their statements, reiterated his request for further ballistic analysis and a 3D reconstruction of the crime scene; however, the District Court dismissed his request. 36. On 12 September 2006 the Novo Mesto District Court delivered a judgment finding the applicant guilty of H.C.Z.’s murder and sentenced him to fifteen years in prison. Noting that the applicant could not be present at the examination of E.M.L. and A.B. in the Netherlands because of the decision of the Dutch investigating judge, which fell beyond the jurisdiction of the Slovenian courts, the District Court nonetheless concluded that since the applicant’s counsel was present and moreover had submitted questions written by the applicant to both witnesses, the applicant’s defence rights were not violated. 37. Moreover, the District Court explained that it had refused the applicant’s request for a 3D forensic reconstruction because ballistic expert F.S.’s request for another ballistic expert to be appointed, the District Court pointed out that any doubts raised by the ballistic report prepared by the defence’s expert V.M. had been removed by the questioning of experts F.S. and A.Š. at the hearing. 38. In its conclusion that it was the applicant who had shot H.C.Z., the District Court relied on the testimony given by E.M.L. The court noted that, when cross-examined by the applicant’s counsel, E.M.L. had confused the position of the applicant and M.Š. on the floor plan of the bedroom, but nonetheless found that his statement regarding the identity of the shooter was persuasive, since he had known the applicant and had maintained throughout the proceedings that he had seen him pulling a gun and firing a shot at H.C.Z. The account given by E.M.L. was further corroborated by forensic evidence and the testimony of M.S. regarding the sequence of events. Moreover, it was noted that M.S. had not seen E.M.L. carry a gun, as had been alleged by the applicant, M.Š. and A.S. 39. As regards the applicant’s motive for shooting H.C.Z., the District Court examined in great detail his role in the business in which he had been involved, and referred to his apparent dispute with the Dutch partners. Finally, the court pointed out numerous discrepancies between the applicant’s statements given during the investigation and at the trial, and the fact that the gun with which H.C.Z. had been killed had been found in the applicant’s possession. The District Court did not believe the applicant’s and M.Š.’s statement that the gun had been hidden under a concrete plate alongside a Czech motorway and then found years later, intact and oiled, by the applicant. As regards M.Š.’s testimony, the court found it unreliable. In particular, it found that M.Š.’s account of the shooting was not supported by the forensic evidence taken at the scene of the crime or by the entry and exit wounds found on H.C.Z.’s body. 40. The applicant appealed against the judgment, raising, inter alia, the argument that he should have had the opportunity to cross-examine E.M.L. in person, either in the courtroom or by video link. 41. On 1 February 2007 the Ljubljana Higher Court dismissed the applicant’s appeal. It found that the District Court had properly assessed the evidence, and that the applicant’s defence rights had not been violated on account of his inability to cross-examine E.M.L. in person. It noted that the grounds relied on by the investigating judge in The Hague, who refused to allow the applicant’s presence at the examination, were identical to those provided in section 178 § 4 of the Slovenian Criminal Procedure Act. It concluded that the applicant’s defence rights had been safeguarded by the attendance of his lawyer at E.M.L.’s examination. It further noted that E.M.L. had provided credible and consistent testimony, which had not been refuted by any of the expert reports; in addition, his account of the events leading to the shooting and his escape from the villa was confirmed by M.S. 42. On 24 January 2008 the Supreme Court decided on the applicant’s request for the protection of legality. It rejected the applicant’s complaint of a violation of his defence rights due because he did not have the opportunity to cross-examine the main witness for the prosecution, finding that the applicant had been familiar with E.M.L.’s testimony and had had an adequate and sufficient opportunity to effectively challenge it through the assistance of his counsel. Moreover, in response to the applicant’s assertion that E.M.L. had confused him for his brother, the Supreme Court observed that E.M.L. had been viewed by the lower courts as a reliable and credible witness because his testimony had been consistent throughout the proceedings, including his identification of the applicant as the shooter. Moreover, E.M.L.’s statement had been corroborated by other evidence, in particular by M.S.’s testimony. The Supreme Court emphasised that the defence had been acquainted with E.M.L.’s initial statement given to the Czech authorities and thus in the position to effectively challenge the reliability and veracity of his testimony. In the Supreme Court’s opinion, the applicant’s counsel had used this opportunity at the hearing of E.M.L. in The Hague, where she had asked, inter alia, a number of questions relating to the reliability of E.M.L.’s identification of the shooter. Therefore, although the applicant had not been present during E.M.L.’s cross-examination, the Supreme Court was convinced that his rights of defence had not been violated. 43. The applicant subsequently appealed to the Constitutional Court, which on 6 April 2010 declared his constitutional complaint inadmissible.