CASE OF MIHELJ v. SLOVENIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1965 and lives in Ljubljana. Following a request for a criminal investigation against the applicant lodged by M.K. on 25 March 1999 and amended on 9 July 1999, on 30 July 1999 the applicant was summoned as accused to appear before the investigating judge of the Ljubljana District Court. He was also notified of the charge of aggravated fraud under section 217 § 2 of the Criminal Code, and the underlying allegations submitted by M.K. 6. On 6 September 1999 the applicant was heard by the investigating judge. He denied the charge and submitted a number of documents in support of his position that the accusations were fabricated and unfounded, but was unwilling to answer any of the questions posed by M.K.’s legal counsel. 7. On 17 September 1999 the investigating judge of the Ljubljana District Court issued an order for an investigation of aggravated fraud against the applicant. In the course of that investigation, two witnesses were heard who confirmed M.K.’s version of events. The applicant was not present during these examinations, although the investigating judge ordered him to be notified thereof. Judicial records contain no evidence that the applicant received a summons. 8. After the investigation was concluded, on 10 November 1999, the Ljubljana District State Prosecutor’s Office took over the proceedings and on 4 February 2000 lodged an indictment for attempted aggravated fraud under Article 217 §§ 1 and 2 in conjunction with Article 22 of the Criminal Code. The indictment stated that the applicant had deceived M.K. into believing that he could assist her in preventing her husband from claiming ownership of her share of their joint property, namely the family house. The applicant had taken advantage of M.K.’s age and naivety and persuaded her to sign a fictitious loan agreement stating that he would lend her 50,000 German marks (DEM), equivalent to 4,691,500 Slovenian tolars (SIT), which was to be secured with a mortgage on her share of the family house, despite the fact that M.K. did not owe him anything, which he was well aware of. For this purpose, the applicant had M.K. sign an authority form authorising him to take all measures necessary for the execution of the loan agreement. On that basis, the applicant had the mortgage against M.K.’s property entered in the land register, prejudicing the value of her property in the amount of SIT 4,691,500. Moreover, M.K. paid the applicant SIT 225,000 in several instalments for the “favour” he had done her. 9. Having been served with the indictment, the applicant lodged an objection, reiterating that M.K.’s accusations of fraud were fabricated and arguing that he would not be able to enter a mortgage in his favour in the land register without M.K.’s cooperation. The objection was rejected by the pre-trial panel on 7 July 2000. The latter noted in its decision that the criminal offence should be reclassified as attempted fraud under Article 217 § 1 in conjunction with section 22 of the Criminal Code, as the value at issue did not reach the statutory threshold of significant pecuniary damage. Accordingly, the Ljubljana District Court no longer had jurisdiction over the case, which was to be referred to the Ljubljana Local Court. The applicant was served with the decision and appealed against it; however, his appeal was dismissed as unfounded. 10. Following the transfer of jurisdiction to the local court, the ensuing court proceedings were conducted under the rules of summary procedure. 11. The applicant having failed to collect the first two summonses to the hearing which was to take place on 22 January 2002, the hearing was rescheduled for 29 March 2002. A summons to this later hearing was served on the applicant on 4 February 2002 through the court courier service at both his home and his work address, and subsequently on 6 February 2002 by post, again at both his home and his work address. On 28 March 2002 the applicant sent a letter to the court in which he objected to the hearing, alleging that he had received four identical summonses which contained no explanation but only an indication of legal classification of the criminal offence in question. The applicant’s objection to the hearing was received by the local court on 29 March 2002. 12. On 29 March 2002 the Ljubljana Local Court held a hearing in the absence of the applicant, having found that he had not provided justification for his absence, although he had been duly summoned, that he had already been questioned during the investigation, and that his presence at the hearing was not necessary to establish the facts of the case. Thus, the legal requirements for trial in absentia had been met. The court examined M.K. and the two witnesses who had already been questioned during the investigation; their accounts corresponded to their previous statements. In her concluding remarks the district state prosecutor modified the indictment, reclassifying the offence to the actual criminal offence of fraud, rather than attempted fraud. She also added some details to the facts on which the indictment was based, in particular the allegation that the applicant had lied to M.K. that there would be expenses with regard to the entry of the mortgage in the land registry, for which she had paid him a total of SIT 225,000. 13. Having concluded the hearing, the court found the applicant guilty of the criminal offence as specified in the modified indictment, and sentenced him to seven months in prison. M.K. was invited to pursue her pecuniary claim in civil proceedings. 14. The applicant appealed to the Ljubljana Higher Court, arguing that the statement he had given during the investigation could not suffice for the trial purposes, as an indictment had not yet been lodged and thus could not be disputed. He pointed out that a statement given in the investigation could relate to one criminal offence, while the indictment could be lodged for a completely different criminal offence. He was therefore of the view that the provisions on trial in absentia should only be applied to cases where the defendant was questioned after the lodging of the indictment. Moreover, he disputed the credibility of the two witnesses and referred to the loan agreement and other documents he had submitted to the court during the investigation, claiming that M.K. was evading her contractual obligations and charging him with fraud for that reason. He also challenged the imposed prison sentence. 15. On 18 September 2002 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment. The higher court found that the applicant’s defence right had not been violated by the fact that he was not present at the hearing. It noted that the accused had the right to attend the summary proceedings, but that he was not obliged to do so. The court noted that the applicant had been heard during the investigation, had received the indictment and had been duly summoned to the hearing, where he would have had the opportunity to make a statement and examine witnesses against him. However, given that the facts of the case had been clear and fully established, the higher court took the view that the applicant’s presence at the hearing had not been necessary. In this connection, the court held that a hearing should only be discontinued if the description of the criminal offence in the indictment, albeit based on the same factual elements as before, was substantially changed. In such a case, the defendant ought to be informed thereof and summoned to attend a new hearing. However, this was not the case in the circumstances complained of by the applicant. 16. The applicant appealed on points of law, reiterating that he should not have been tried in absentia, as he had been questioned only before the indictment was lodged. Moreover, he had not been given the opportunity to cross-examine the witnesses against him. 17. On 13 November 2003 the Supreme Court delivered its judgment, in which it upheld the lower courts’ decisions. The Supreme Court found that the offence which prompted the investigation against the applicant was identical to the offence with which the applicant was later charged. Furthermore, the hearing before the court did not bring to light any new information that had not already been uncovered during the investigation. Referring to section 442 of the Criminal Procedure Act, which sets out the conditions for conducting a hearing in absentia, the Supreme Court noted that the defendant had the right to attend the hearing, but that this right could under certain circumstances be waived. It also noted that the applicant had been duly summoned and warned that the hearing could be held in his absence. As regards the examination of witnesses during the investigation, the Supreme Court noted that while there were no indications in the case file that the applicant had been notified of it, this procedural breach had been remedied by the hearing at which M.K. and the other two witnesses had been re-examined. The applicant had had the opportunity to attend the hearing, but had waived his right. 18. The applicant lodged a constitutional complaint, which was declared admissible on 29 May 2006. 19. On 9 November 2006 the Constitutional Court delivered a decision finding that the applicant’s constitutional rights had not been violated. The court noted that the applicant had been heard during the investigation and that the charges in the request for the investigation and the indictment which had been lodged after the investigation and served on him had concerned the same acts and the same alleged offence, regardless of some differences in the wording. They both charged the applicant with misleading M.K. into concluding a fictitious agreement with him with the intent of acquiring illicit pecuniary gain. Observing that the indictment had been modified at the hearing, the Constitutional Court held that although the offence had been reclassified as actual fraud, and no longer as attempted fraud, the charge had remained the same in terms of content as regards the applicant’s conduct and the circumstances in which the offence had been committed. Having regard to that, as well as the fact that the applicant had been duly summoned to the hearing and had failed to provide any valid reason for his absence, the Constitutional Court held that the local court had had no obligation to ensure the applicant’s presence at the hearing. Moreover, the Constitutional Court observed that the applicant had not even alleged that the criminal offence which was the subject of the investigation was different from the one examined at the court hearing. He had merely drawn attention to the fact that “a prosecutor may file an indictment for a completely different criminal offence after the investigation is completed”. It was also found that the applicant could have requested an adjournment of the hearing, but did not do so, and instead had failed to appear without specifying any valid reason. Finally, as regards the examination of the witnesses, the Constitutional Court reached the same conclusion as the Supreme Court had previously.