CASE OF CEROVŠEK AND BOŽIČNIK v. SLOVENIA
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)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The first applicant was born in 1962 and lives in Bizeljsko. The second applicant was born in 1946 and lives in Artiče. 6. The applicants were charged in 2005 and 2006 respectively of committing theft by cutting down and taking trees from a forest belonging to another person and appropriating the wood. They were tried by a professional judge, A.K., sitting as a single judge. 7. The first applicant stated in his defence in the proceedings against him that he had cut down trees which had been marked for cutting or had been attacked by bark beetle in his own forest. In the course of the proceedings against the first applicant Judge A.K. examined a number of witnesses during the main hearing, inspected the place of the alleged offence and examined a number of other documents, including a sketch and a copy of the land register map. None of the witnesses testified that they had seen the first applicant cutting down trees on the injured party’s plot of land. However, they testified about a number of other circumstances in relation to the charges, for example similarities in the way the trees had been cut down on the first applicant’s land and on that of the injured party, traces of the transport of trees, the fact that the first applicant had regularly sold wood and that he had also cut down unmarked trees on his own land. One of the witnesses also testified that he had seen the first applicant and another person, B.K., transporting trees over the injured party’s land. Another witness, the injured party’s husband, testified that B.K. had indirectly confirmed his involvement in cutting down the trees in question. B.K., however, stated that he believed that he had only cut down marked trees on the first applicant’s land. The court also appointed an expert, who estimated that the value of the allegedly stolen wood amounted to 2,028 euros (EUR). 8. The second applicant was charged with two counts of theft. In the course of the proceedings against him, Judge A.K. heard a number of witnesses at the main hearing and examined several documents, including copies of the relevant land register maps. In respect of the first charge, the second applicant maintained that he had mistakenly thought that he had been cutting down trees on his own land, whose borders had been shown to him by the former owners, F.H. and J.H., who also appeared as witnesses in the proceedings. The husband of the injured party, M.P., stated that they had found out about the stolen wood six months after the event and that neighbours had told them that the second applicant had been seen in the forest at the time, while another person, I.T., had been seen transporting the wood. He also testified that the second applicant had admitted to him that he had cut down the trees, thinking that they had belonged to his land but that they had failed to agree on how much the second applicant should pay M.P. in compensation. I.T. stated that he had helped the second applicant transport the wood and that he had been told by him that the land belonged to him, which I.T. had found suspicious. Another witness, S.P., stated that he had helped I.T. load the truck with the wood. As to the second charge, the second applicant argued that he had had an agreement with the injured party in that case, F.B., that he could cut down trees in exchange for wine. The judge questioned the injured party, who denied the existence of such an agreement. The court also appointed an expert, who estimated that the value of the beech and hornbeam trees cut down amounted to EUR 457 and that of the acacia trees at EUR 440. 9. On 21 June 2007 Judge A.K. found the first applicant guilty of taking another’s movable property with the intention of unlawfully appropriating it, and sentenced him to six months in prison, suspended for three years. The judge found that the applicant had cut down and taken eight oak trees in a forest without the knowledge of its owner and had appropriated wood worth EUR 2,028. She ordered him to either deliver to the injured party the same quantity of oak that had been taken from the forest or to pay compensation of EUR 2,028. She pronounced a guilty verdict and sentenced him (izrek, hereinafter referred to as “the verdict”) orally. 10. On 2 July 2007 Judge A.K., again giving an oral verdict, found the second applicant guilty of taking another’s movable property with the intention of unlawfully appropriating it and sentenced him to seven months in prison, suspended for three years. She found that the second applicant had cut down and taken three beech trees and nine hornbeams worth at least EUR 457 and two hundred acacia trees worth at least EUR 440 from land belonging to other persons. Moreover, the second applicant was ordered to pay compensation of EUR 457 and EUR 440 respectively to the two injured parties. 11. The Government submitted that Judge A.K., when pronouncing the verdict, had also given an oral summary of the main reasons (see paragraph 34 below), however, no indication of that can be found in the records of the hearing. 12. After hearing the verdict both applicants gave notice of their intention to appeal, which gave rise to an obligation on the part of Judge A.K. to draw up written grounds for her verdicts (see paragraph 23 below). 13. A.K. later retired on an unspecified date and the case files in both applicants’ cases got lost. In 2010, the local court reconstituted the files. 14. Based on the documents contained in the restored case file, Judge D.K.M. delivered written grounds for the verdict pronounced by Judge A.K. (see paragraph 9 above), which were served on the first applicant’s counsel on 17 August 2010. In her reasoning, the judge relied on the records of the hearings, the transcript of the inspection of the location and other documents in the file. The judge did not believe the applicant’s version of events and dismissed B.K.’s statements as biased because he had been working for the first applicant. She also found his testimony to be in contradiction with some of the other witness statements. The court relied heavily on the finding that while B.K. had cut down the trees professionally on the applicant’s land, witness testimony showed that certain trees had been cut down in an unprofessional manner on both the applicant’s and the injured party’s land, and that the first applicant and B.K. had been seen transporting trees over the injured party’s land. 15. The written grounds in the second applicant’s case (see paragraph 10 above) were delivered by Judge M.B., who also based them on the documents contained in the restored case file. They were served on his counsel on 17 June 2010. As to the first charge, the judge found that the second applicant’s defence had not been convincing. In particular, the judge considered the statements of two witnesses, F.H. and J.H., to be unpersuasive. On the other hand, the judge relied on the statements of the injured party and her husband, supported by other evidence, for example, the expert’s opinion, the statements of the witnesses S.P. and I.T and the copy of the land register map showing that M.P.’s land did not border on the second applicant’s. As to the second charge, the court relied predominantly on the statement of the injured party, F.B., who denied that he had had an agreement with the second applicant. Other evidence, such as the expert’s opinion and photographs, confirmed that F.B. was indeed the owner of the land and indicated the number of trees that had been cut down. 16. Both applicants appealed against the judgments, raising similar arguments as those submitted to the Court (see paragraph 32 below). They further alleged that the judgments should have been set aside and remitted to the first-instance court for fresh consideration. Furthermore, both applicants also appealed against the factual findings on which their convictions had been based, including the assessment of the credibility of a number of witnesses. The second applicant also complained about the assessment of the existence of intent on his part to commit the second count of theft. 17. 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 delivered orally had not rendered the judgments unlawful. The higher court emphasised that the impugned judgments had been based on facts established in adversarial proceedings and on evidence given at 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 given orally by Judge A.K. who had presided over both applicants’ hearings, had questioned the applicants and heard the witnesses. Moreover, the written grounds had disclosed on what evidence the judges providing them had relied and how they had assessed the reliability of the applicants’ statements. In the higher court’s opinion, the written grounds had been clear and reasonable. As regards the first applicant, the higher court reassessed the evidence, including the witness statements, and came to the same conclusion as the first-instance court. As to the second applicant, the higher court noted that the first-instance court had truthfully and accurately established all the relevant facts of the case, and that it had been proven that the second applicant had intended to commit the second offence. 18. On 13 October 2010 and 20 January 2011 respectively, the applicants lodged applications for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court, raising similar arguments as those submitted to the Court (see paragraph 32 below) and referring to the Constitutional Court’s decision of 11 October 2006 (see paragraph 28 below). 19. On 6 January and 1 September 2011 respectively, the Supreme Court dismissed the applicants’ applications for the protection of legality, holding that only the operative part of the judgment, namely the verdict, could have interfered with the rights of the parties, while the purpose of written grounds was to enable a decision to be reviewed by higher instances. As a rule, the written grounds of a judgment were given by the judge who had conducted the trial and pronounced the verdict. However, in certain situations, such as when a judge was absent for a long time or died, the law had to be interpreted as permitting another judge to give the written grounds. In such cases, the judge who wrote the judgment based it on logical reasoning and the evidence in the file. The Supreme Court found that while the principle of immediacy required that a verdict should be given by the judge who had participated in the trial, the act of writing a judgment, was not, strictly speaking, part of the trial. Moreover, if the written grounds for a judgment were not convincing, a defendant had a better chance of succeeding with his or her appeal. Having regard to those considerations, the Supreme Court took the view that the applicants’ rights of defence had not been violated. 20. On 1 April and 2 December 2011 respectively, the applicants lodged constitutional complaints, reiterating the arguments they had made before the lower courts. 21. On 3 April 2012 the Constitutional Court refused to admit the applicants’ constitutional complaints, holding that their cases concerned neither a violation of human rights having serious consequences for them nor an important constitutional question.