Communicated on 11 February 2021
Published on 1 March 2021
SECOND SECTION
Application no. 17053/20
Igor BAVČAR
against Slovenia
lodged on 3 April 2020
SUBJECT MATTER OF THE CASE
The Ljubljana District Court found the applicant guilty of money laundering under section 252(1)(3) of the Criminal Code because he had acquired and further dispersed the money originating from the predicate offence of abuse of rights. The court held, inter alia, that the applicant had acted with direct intent (to conceal the origin) as regards the illicit money he had acquired into his bank account. Regarding his further disposal of the proceeds, it considered that he had acted with indirect intent because he had been aware that he had further concealed the money’s origins and had conceded to such consequence of his actions. He was sentenced to five years in prison.
On 27 September 2016, while the applicant’s appeal against the first‑instance judgment was pending before the Ljubljana Higher Court, G.K., who was the Minister of Justice at the relevant time, stated in a televised interview that should the criminal proceedings in the applicant’s case became time-barred, “heads would roll” in the judiciary.
The applicant’s appeal and application for protection of legality were dismissed by the Higher Court and the Supreme Court respectively. On 12 December 2019 the Constitutional Court refused to accept the applicant’s complaint for consideration. Having regard to the context of the Minister’s aforementioned statement and the fact that the lower courts had distanced themselves from it, the Constitutional Court considered that the statement could not have any effect on the appearance of impartiality of the trial. The Constitutional Court furthermore confirmed that section 252 of the Criminal Code permitted the interpretation that the offence of money laundering could be committed by direct or indirect intent. It concluded that the case‑law development considering indirect intent to be criminal had been consistent with the substance of the criminal offence in question and could have been reasonably foreseen by the applicant.
The applicant complains that his right to a presumption of innocence under Article 6 § 2 of the Convention, as well as the right to a fair and impartial trial under Article 6 § 1 were violated by the Minister of Justice’s statement. In this connection, he submits that given the timing of the statement, the latter was understood as an instruction and a threat to the Higher Court to uphold the conviction judgment. Furthermore, the applicant complains that the domestic courts’ interpretation to the effect that indirect intent could engage a criminal liability for money laundering violated the principle of legality under Article 7 of the Convention and his right to a fair trial under Article 6.
QUESTIONS TO THE PARTIES
1. Having regard to the statement of the Minister of Justice of 27 September 2016, was the court which dealt with the applicant’s case independent and impartial, as required by Article 6 § 1 of the Convention (see Thiam v. France, no. 80018/12, §§ 75-85, 18 October 2018; Clarke v. the United Kingdom (dec.), no. 23695/02, ECHR 2005‑X; and Daktaras v. Lithuania, no. 42095/98, § 36, ECHR 2000‑X)? In view of the Minister’s implied threat of sanctioning the members of the judiciary if the case became time-barred, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see Konstas v. Greece, no. 53466/07, §§ 32-45, 24 May 2011, and Gutsanovi v. Bulgaria, no. 34529/10, §§ 191-201, ECHR 2013 (extracts))?
2. Did the act or omission of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention (see Parmak and Bakır v. Turkey, nos. 22429/07 and 25195/07, §§ 57-61, 3 December 2019; G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 242, 28 June 2018; Kafkaris 33374/10v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008; and Khuzhin and Others v. Russia, no. 13470/02, § 94, 23 October 2008)? In particular, was the domestic courts’ interpretation to the effect that indirect intent could engage a criminal liability for the criminal offence of money laundering foreseeable within the meaning of the relevant provision of the Criminal Code?
Full & Egal Universal Law Academy