ŠUBINSKI v. SLOVENIA
Inadmissible
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
The applicant, Mr Goran Šubinski, is a Slovenian and Croatian national who was born in 1971 and is currently serving a prison sentence in Dob pri Mirni. He was represented before the Court by Mr Ž. Klun, a lawyer practising in Ljubljana. 1 2. On 14 April 2003 the applicant was arrested and remanded in custody on suspicion of having committed a criminal offence. The investigating judge of the Murska Sobota District Court ordered him to be placed in pre-trial detention in the remand section of Murska Sobota Prison, where he remained until a final decision was delivered in his case on 17 March 2005. 3. On 12 March 2005 the applicant attempted to escape from detention. In the early hours of the morning, he caused a flood in his cell by damaging the pipe under the sink. Two prison officers came to turn the water off, with one of them setting about repairing the leak and the other standing at the cell door. The applicant sprayed them both with pepper spray, stabbed one of them with a piece of wire from a coat hanger and attempted to push past them and get out of the cell. However, the prison officers managed to restrain him and prevented him from escaping. The prison officer who was stabbed sustained minor injuries. 4. On 14 March 2005 the Murska Sobota Prison administration informed the Murska Sobota District Court about the applicant’s attempted escape. 5. On 15 March 2005 the president of the pre-trial panel of the Murska Sobota District Court found the applicant guilty of making an item intended to be used as a weapon in an attack and of having physically attacked a prison officer. The applicant had thereby committed disciplinary breaches referred to in the first and second points of the second paragraph of section 213.c of the Criminal Procedure Act (see paragraph 22 below). 6. The president of the pre-trial panel punished the applicant by prohibiting his visits and correspondence for a period of two months. 7. On 17 March 2010 the Murska Sobota District Court found the applicant guilty of attempted escape and of an attempt on the life of the prison officer who was stabbed with the wire. He was convicted of attempted escape and attempted murder and sentenced to nine and a half years’ imprisonment. 8. At the trial, the applicant objected that the institution of the criminal proceedings had violated the principle of ne bis in idem. However, the court held that the disciplinary sanction that had been imposed on him had not excluded prosecution under the rules of criminal procedure. According to the district Court, the principle of ne bis in idem would only be violated if the provisions concerning a disciplinary breach entirely coincided with the elements of a criminal offence, which was, however, not the case in the applicant’s situation. Namely, the elements of the disciplinary breaches that the applicant had been found to have committed were not entirely equivalent to the elements of the criminal offences of attempted murder and attempted escape which were examined in the criminal proceedings. 9. The applicant appealed against the judgment, arguing, inter alia, that the criminal trial had amounted to a violation of the ne bis in idem principle. 10. On 9 December 2010 the Maribor Higher Court granted the applicant’s appeal in so far as it related to the nature and legal classification of the offences he had committed and remitted the case to the district court for reconsideration, instructing the lower court to establish the facts more thoroughly. However, the higher court dismissed the applicant’s complaint of double jeopardy, confirming the view of the lower court that the sanction imposed under the rules of disciplinary procedure did not exclude the prosecution of the applicant on criminal charges. The applicant had not been convicted of a criminal offence in the disciplinary proceedings, but merely of two breaches of disciplinary rules. That meant, therefore, that the matter brought before the criminal court had not yet been resolved. 11. In the course of the retrial, the applicant asked for a different panel of the Murska Sobota District Court to consider his case because the panel that had delivered the first judgment had already taken a position on his guilt. 12. On 26 January 2011 a newspaper published an article saying that the applicant would be tried before the same panel as in the previous set of first-instance proceedings because the president of the Murska Sobota District Court had dismissed the applicant’s application for a different one. 13. On 27 January 2011 the president of the Murska Sobota District Court dismissed the applicant’s application for the retrial to be held before a different panel with the reasoning that there existed no statutory grounds for disqualifying the judges who had participated in the first set of proceedings. The fact that they had already pronounced themselves on the issues concerned did not in itself imply that their impartiality was compromised and that the retrial would not be conducted fairly. The president noted that the Maribor Higher Court had quashed the first-instance judgment owing to a failure to fully establish the facts concerning the applicant’s intent to murder the prison officer he had stabbed in the back, which required additional evidence to clarify the matter. Accordingly, a new evaluation of fresh evidence was to be made in the case. In the president’s opinion, there were no indications that such an evaluation could not be made in a fair and impartial manner by the judges who were already acquainted with the case. 14. On 14 February 2011 the applicant’s counsel requested an explanation from the president of the Murska Sobota District Court of how it had been possible, in the absence of any press conference, for the newspaper to obtain information about the dismissal of the applicant’s application before a formal decision had been issued. 15. On 11 March 2011 the president of the Murska Sobota District Court replied to the applicant’s counsel that decisions on parties’ procedural motions were taken by him personally, while the drafts were prepared by the district court’s legal advisers on his instructions. The president further stated that he had interviewed the staff working on the applicant’s case, but had not obtained any relevant information. He had also contacted the journalist who had written the article in question, who had explained that it had been based on his experience and expectations. 16. On 18 May 2011 the Murska Sobota District Court delivered a new judgment finding the applicant guilty of attempted escape and of stabbing the prison officer in the back with a coat hanger wire in order to facilitate his escape, causing him minor injuries. The applicant was convicted of attempted escape under Article 294 in conjunction with Article 22 of the Criminal Code and of causing minor bodily harm under Article 133 of the Code. He was sentenced to two years and five months’ imprisonment. 17. The applicant again appealed against the judgment, arguing that the ne bis in idem principle had been violated by the institution of criminal proceedings against him. He also alleged that he had only committed one criminal offence, namely attempted escape under Article 294 of the Criminal Code. In the applicant’s opinion, the infliction of minor bodily harm had been a lesser offence incorporated into the definition of “force”, constituting one of the elements of the criminal offence of escaping from custody (see paragraph 23 below). In that connection, the applicant relied on the Commentary to the Criminal Code, stating that if an individual escaping from custody used force which resulted in grievous bodily harm or murder, the offence of escape from custody was merged into either of the more serious offences. 18. On 22 May 2012 the Maribor Higher Court granted the applicant’s appeal in part, reducing his sentence to one year and two months’ imprisonment. However, the applicant’s complaint of double jeopardy was dismissed. Moreover, as regards the applicant’s view that the injuries he had inflicted on the prison officer should be incorporated into the criminal offence of escape from custody, the higher court took the view that only such force as did not reach the threshold of minor bodily harm could be incorporated into the criminal offence of escape from custody. The higher court added that the merging of offences was only applied when the offence of escape from custody was absorbed by the more serious offences of bodily harm. 19. The applicant lodged a request for the protection of legality (an extraordinary legal remedy) with the Supreme Court, reiterating, inter alia, the complaints of double jeopardy and that minor bodily harm should be incorporated into the offence of escape from custody. 20. On 8 November 2012 the Supreme Court dismissed the applicant’s request for the protection of legality, confirming the view of the lower courts that a final decision delivered in disciplinary proceedings did not preclude bringing criminal charges against him. The disciplinary sanction could not be equated with a criminal sentence and, moreover, section 213.c of the Criminal Procedure Act did not exclude prosecution for acts defined as disciplinary breaches. Further, as regards the alleged requirement to incorporate minor bodily harm into the description of the criminal offence of escape from custody, the Supreme Court reiterated the view of the Maribor Higher Court that the facts at issue had constituted two separate criminal offences because the use of force at the threshold of minor bodily harm was not absorbed by the offence of escape from custody. The applicant lodged a constitutional complaint with the Constitutional Court. 21. On 28 March 2013 the Constitutional Court found the applicant’s constitutional complaint inadmissible. 22. Disciplinary matters regarding pre-trial detainees are regulated by section 213.c of the Criminal Procedure Act, which provides as follows: “(1) Detainees may be disciplined for disciplinary breaches. The investigating judge or the president of the [pre-trial] panel may impose a disciplinary sanction. (2) Disciplinary breaches are: – physical attacks on other detainees, prison officers or other official persons; – the production, acceptance or introduction into the facility of items intended for an attack or escape; – introduction into the facility and production of alcoholic beverages and narcotics and their distribution, – violations of the regulations on safety at work, fire safety, explosions and other natural disasters, – repeated violations of the internal rules of the facility, – causing serious material damage intentionally or through serious negligence, – insults and undignified behaviour. (3) For disciplinary breaches, a prohibition of or restrictions on visits and correspondence may be imposed. Restrictions on or the prohibition of visits shall not apply to visits by defence counsel, doctors, the human rights ombudsman and diplomatic and consular representatives of the country of which the detainee is a citizen. (4) Complaints may be lodged with the panel (sixth paragraph of section 25) against the decision on punishments imposed under the first paragraph of this section within twenty-four hours of receipt thereof. The appeal shall not stay the execution of the decision.” 23. The relevant provisions of the Criminal Code concerning attempted criminal acts and the offences of minor bodily harm and escape from custody provide as follows: “(1) Anybody who intentionally initiated a criminal offence but did not complete it shall be punished for an attempted criminal act, provided that such an attempt involved a criminal offence for which a sentence of three years’ imprisonment or a heavier sentence may be imposed under statute; attempts to commit any other criminal offence shall be punishable only when so expressly provided for by statute. (2) A perpetrator who attempted to commit a criminal offence shall be punished within the limits prescribed for such an offence or the sentence shall be reduced, as the case may be.” “(1) Whoever inflicts bodily harm on another person resulting in the temporary weakness or impairment of an organ or part of his body, his temporary inability to work, the impairment of his appearance or temporary damage to his health shall be punished by a fine or by imprisonment for not more than one year. (2) If the injury under the preceding paragraph has been inflicted by means of a weapon, dangerous tool or any other instrument capable of causing serious bodily harm or grave damage to health the perpetrator shall be sentenced to imprisonment for not more than three years. ...” “Whoever, by force or threat of imminent attack on life or limb, escapes from a penal institution or detention centre shall be sentenced to imprisonment for not more than three years.”