CASE OF ŠMAJGL v. SLOVENIA

FOURTH SECTION

CASE OF ŠMAJGL v. SLOVENIA

(Application no. 29187/10)

JUDGMENT

STRASBOURG

4 October 2016

FINAL

06/03/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Šmajgl v. Slovenia,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Egidijus Kūris,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 23 August 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 29187/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Rudolf Šmajgl (“the applicant”), on 6 May 2010.

2. The applicant was represented by Mr D. Medved, a lawyer practising in Krško. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney.

3. The applicant alleged that the criminal trial against him had been unfair, as he had not been given the opportunity to personally cross-examine the main witness for the prosecution whose testimony was decisive for his conviction.

4. On 3 July 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Factual background

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.

B. The criminal investigation in the Czech Republic

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.

C. The judicial investigation in Slovenia

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.

D. The first set of criminal proceedings

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.

E. The second set of criminal proceedings

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. had explained that this method would have not been reliable in the circumstances of the case. As regards the applicant’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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Criminal Procedure Act

44. The relevant provisions of the Criminal Procedure Act, as in force at the material time, read as follows:

Section 167

“...(2) The aim of an investigation is to gather the evidence and data necessary for deciding whether to bring charges or discontinue proceedings, evidence whose reproduction at the main hearing might be impossible or very difficult, and other evidence which might be useful for the proceedings and whose taking appears warranted by the circumstances of the case.”

Section 178

“...(4) The state prosecutor, the accused and his defence counsel may attend the examination of a witness. The investigating judge may order the accused to be removed from the stand if a witness is unwilling to testify in the presence of the accused, if circumstances indicate that the witness will fail to tell the truth in the presence of the accused, or in instances where a recognizance will be required after the witness has been heard. The accused may not be present during the questioning of witnesses younger than 15 who are victims of any of the criminal offences from the third paragraph of section 65 of this Act. The injured party may attend the examination of a witness only if the witness is not likely to appear at the main hearing...

(6) If a person who has been sent a notice of any intended questioning fails to appear, the questioning may be performed in his absence ...

(7) The parties and defence counsel present during a questioning session may seek clarification of certain matters by putting questions to the accused, witness or expert. As a rule, the questions shall first be put by the state prosecutor, then by the accused and his counsel, and finally by the investigating judge. The investigating judge shall not allow a question or an answer if they are not permitted or are irrelevant to the matter considered ... Those present at a questioning session shall have the right to demand that their remarks concerning the putting of individual questions be entered in the record, and may propose that individual pieces of evidence be taken ...”

Section 242

“(1) Where there is need to establish if a witness can recognise a person or an object he shall first be asked to describe them and indicate their distinctive marks. Only after that the witness shall be shown the person together with other persons unknown to him, or the object together with other objects of the same kind if possible. Identification by means of other senses (hearing, touch, smell etc.) shall proceed in a corresponding way.

(2) Before identification, the witness shall be warned according to the second paragraph of section 240 of this Act.

(3) The investigating judge who conducts the identification process shall ensure that before the identification the witness does not see the persons or objects he is about to identify.

(4) A record of the identification shall be made and a group photograph of all the persons viewed shall be enclosed with it.”

Section 242a

“If there is a serious risk that the person doing the identification or his close relatives (points 1-3, first paragraph of section 236) would lose their lives of suffer physical harm or if there is a likelihood that the person being identified might influence the course of the identification process, the identification shall be conducted in such a way that the person being identified cannot see the person making the identification.”

Section 288

“(1) ... Witnesses and experts proposed by the prosecutor in the indictment and by the accused in his defence to the indictment, except those whose examination at the main hearing is not necessary in the opinion of the presiding judge, shall also be summoned to the main hearing ...”

Section 337

“(1) If it becomes known in the course of the main hearing that a witness or an expert is unable to appear in court or his appearance would involve great difficulty, and the panel maintains that his testimony is important, the panel may order that he be examined outside the main hearing by the presiding judge, or a judge on the panel, or the investigating judge of the court in whose territory the witness or the expert resides ...

(3) The parties and the injured person shall always be advised when and where a witness is to be examined, or when and where an inspection or reconstruction of an event is to take place, and shall be instructed that they may attend these events. If the defendant has been remanded in custody, the panel shall determine whether his presence is necessary during these actions ...”

Section 340

“(1) In addition to the instances specified in the present Code, the records of the statements of witnesses, co-defendants or convicted persons who were involved in the offence, as well as expert reports and expert opinions, may on the basis of a decision of the panel be read out only in the following circumstances:

(i) if the persons questioned have died, or have been affected by mental illness, or cannot be found, or are unable to appear in court because of old age, illness or some other weighty reason, or their appearance would involve great difficulty, or if they live abroad and fail to appear at the main hearing despite being duly summoned;

(ii) if witnesses or experts refuse to testify at the main hearing without legal justification.

(2) Subject to the consent of the parties, the panel may decide that the record of a previous examination of a witness or an expert, or the written findings and opinion of the expert, be read out in court in the absence of the witness or the expert, whether or not the witness or the expert were summoned to appear at the main hearing ...

(4) The reasons for the reading out of the record shall be indicated in the record of the main hearing ...”

Section 342

“After the examination of each witness or expert, as well as after the reading of each record or other written document, the presiding judge shall invite the parties and the injured person to make comments if they so wish.”

B. Domestic case-law

45. The Constitutional Court held that the “extreme ill health” of two witnesses, the alleged victims of a crime, was a “justified and unavoidable derogation” from the principle of direct examination of witnesses. Nevertheless, the accused should be given the opportunity to question the victims, and in this respect it was sufficient that he had been invited, during the investigation, to be present at their examination conducted by the investigating judge (decision Up-207/99 of 4 July 2002). In a decision of 18 October 2007 (Up-849/05), the Constitutional Court considered that it was not possible to refer to a violation of the right to examine witnesses for the prosecution when the authorities had acted with due diligence in their efforts to ensure that the accused had the benefit of this right at the trial hearing (it is worth noting that in this case, according to the Constitutional Court, the statements of the victims were not the sole or key evidence against the accused).

46. In a judgment of 21 May 2009 (no. I Ips 14/2009), the Supreme Court noted that, according to section 340(1) of the Criminal Procedure Act (see paragraph 22 above), transcripts of statements could be read at the trial in the event that the witnesses could not be found. If the accused was provided with an opportunity “to be present at the hearing of this evidence”, the statements in question could be read out even without the accused’s consent. Furthermore, there was no violation of the procedural rights of the accused if he and his counsel were summoned to attend the examination of a witness who could not give evidence at trial (see judgment no. I Ips 507/2008 of 9 April 2009, and judgment no. I Ips 190/2006 of 17 May 2007). Conversely, such a violation would occur when, in the absence of any obstacle to such an act, the investigating judge failed to inform the suspect of the examination of a witness whose statements were subsequently read out at trial (see judgment no. I Ips 88/2008 of 16 October 2008).

47. In judgments of 11 April 2002 (no. I Ips 249/1999) and 24 April 2008 (no. I Ips 330/2006), the Supreme Court reiterated that the right of the defence to question the prosecution witnesses cannot be interpreted as requiring an opportunity for confrontation to be provided at a trial hearing. Although as a rule all evidence should be produced at the trial, exceptions are allowed in certain cases indicated in section 340 of the Criminal Procedure Act.

48. As regards the use of evidence taken by foreign jurisdictions in domestic criminal proceedings, the Supreme Court pointed out, in judgment no. I Ips 41/2000 of 28 March 2002, that statements obtained through international legal assistance may be used in so far as they have not been obtained in violation of an individual’s rights or freedoms guaranteed in the Constitution; that is, by coerced confession or in contravention of the rules of a foreign state, or in proceedings which are not consistent with the basic principles of the Slovenian legal system.

49. Moreover, in judgment no. I Ips 361/2006 of 13 September 2007 the Supreme Court emphasised that the question whether the rights of the defence have been respected if only counsel, but not the defendant, has been able to cross-examine the key prosecution witness could not be resolved as a matter of principle; it could only be answered on a case-by-case basis. In the case at issue, the defendant’s counsel was present at the examination of the witness by a foreign investigating judge, but was only able to ask questions through the Slovenian investigating judge, who was also present at the questioning. However, counsel could ask any questions he considered necessary to challenge the witness’s credibility and the veracity of his statements; thus, the Supreme Court concluded that the defence was able to effectively challenge the witness.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

50. The applicant complained that his conviction had been based to a decisive extent on a statement made by a witness he had not had the opportunity to cross-examine directly, in breach of Article 6 § 3 (d) of the Convention.

51. The relevant parts of Article 6 of the Convention read as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

A. Admissibility

52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

53. The applicant alleged that he had not been given the opportunity to cross-examine E.M.L., the key witness against him. Although his first conviction was quashed by the Supreme Court on that very ground, he did not have the opportunity to confront E.M.L. during the second trial either. The applicant had maintained throughout the domestic proceedings that E.M.L. had confused him with his brother M.Š., who looked very similar to the applicant and had confessed to the murder of H.C.Z.; thus it was of crucial importance for the witness to be personally confronted with him in order to clarify the identity of the shooter.

54. The applicant acknowledged that the domestic courts had explained in detail why the personal confrontation had not been necessary or feasible in the particular circumstances of the case. Also, it was true that the applicant’s counsel had been able to put a number of questions to E.M.L., some of which had been prepared by the applicant, and that the European Court of Human Rights allowed, for the purposes of Article 6 § 3 (d), identification of the accused with his counsel. Nevertheless, the applicant was convinced that in his case his defence rights would only have been respected if he had had the opportunity to personally cross-examine E.M.L; in this connection he argued that E.M.L. himself had stated that he had seen two individuals who looked completely alike.

55. The applicant was of the view that E.M.L. had named him as the shooter simply because he knew his name, but he did not know his brother. In this connection, the applicant added that he was not disputing the veracity of E.M.L.’s testimony, but merely claiming that E.M.L. had confused him with his brother M.Š. Moreover, the applicant’s and M.Š.’s statement that the latter had shot B. were confirmed by the statement of M.S., who had seen M.Š. carrying the gun as he came out of the bedroom. Also, the applicant’s version of events had been confirmed by the conclusions of forensic expert V.M. Finally, as regards E.M.L.’s fear of reprisals, the applicant pointed out that he could have been questioned by video link to avoid meeting him in person, but that in any event they knew each other.

(b) The Government

56. The Government, relying on the Court’s case-law regarding the admissibility of evidence, in particular untested evidence provided by witnesses who do not appear at a trial hearing, emphasised that the first-instance judgment in the applicant’s case had been rendered following a comprehensive and thorough hearing of the evidence, which had later been reviewed by all the higher levels of jurisdiction. In the Government’s opinion, E.M.L.’s testimony had justly been considered credible, as his statement to the investigating judge in The Hague had in all its essentials been identical to the statement he had given to the Czech authorities immediately after the shooting. It was true that during the later questioning in The Hague E.M.L. had switched the positions of the applicant and his brother on the floor plan of the bedroom; however, both of his statements were unambiguous in so far as he had claimed to have seen the applicant firing at H.C.Z.

57. The Government pointed out that while the Dutch authorities had not allowed the applicant to attend E.M.L.’s second questioning before the requested investigating judge in The Hague in person, his counsel had been present and had asked E.M.L. a number of questions on the applicant’s behalf, thus fully confirming the credibility of his testimony. Moreover, E.M.L.’s version of the events and his incrimination of the applicant had been confirmed by the statements of M.S., who had not heard any fighting in the bedroom prior to the shooting, and had not seen E.M.L. threatening the applicant and A.S. with a gun. She had, however, seen E.M.L. run out of the bedroom immediately after the shooting, followed by the applicant, M.Š. and A.S.

58. The Government also referred to a number of discrepancies between the applicant’s, M.Š.’s and A.S.’s version of events, starting with the illogical reaction to the arrival of the allegedly armed E.M.L., who had not been challenged by M.Š., while his unarmed boss H.C.Z. had been considered a bigger threat. Moreover, their story was not supported by the conclusions of the forensic and ballistic reports.

59. In conclusion, the Government took the view that E.M.L.’s non-attendance at the applicant’s trial had been legitimate, given his fear of the applicant, who had wanted to kill him after H.C.Z. was shot so that he would not be able to testify. Moreover, the applicant’s right to defence had not been violated, since the presence of his counsel at E.M.L.’s questioning had provided him with sufficient opportunities to challenge the latter’s testimony. Indeed, counsel had asked E.M.L. twenty-eight questions, and had also presented him with the applicant’s written questions; E.M.L. had answered all of them. Moreover, as noted by the Supreme Court, E.M.L. had been consistent in identifying the applicant as the person who had shot H.C.Z. In view of this, the Government took the view that the applicant’s presence at E.M.L.’s questioning would not have had any impact on the domestic courts’ assessment of the evidence.

2. The Court’s assessment

(a) General principles

60. The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Doorson v. the Netherlands, 26 March 1996, § 70, Reports of Judgments and Decisions 1996-II). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein).

61. As regards the introduction of statements by witnesses who do not attend a trial and who cannot be questioned by the accused at any stage of the proceedings, the Court has elaborated the relevant principles in its judgment in the case of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119‑147, ECHR 2011). The principles were recently further clarified in the Grand Chamber’s judgment in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100‑131, 15 December 2015), in which the relationship between them was scrutinised and each of the principles was developed in more detail. Essentially, the Court has found that in determining whether the admission of such evidence was compatible with the right to a fair trial it had first to be established that there was a good reason for the non-attendance of the witness. Secondly, the Court must examine whether the evidence of an absent witness was the sole or decisive basis for a conviction, and thirdly, whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place. Moreover, the Court has pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial.

(b) Application of these principles to the present case

62. That being said, the situation in the present case should be distinguished from that in the above-mentioned cases where neither the defendants nor their counsel were given an opportunity to test, under cross-examination, the evidence given by the only direct witness or witnesses to the crime at issue. Nor is the present case akin to cases such as Doorson, (cited above) where the defendant’s counsel was able to cross-examine anonymous witnesses without, however, being able to raise any issues which might lead to their identification (ibid., §§ 68-76). Thus, in those cases the defence faced considerable difficulties in challenging the reliability and credibility of the prosecution witnesses’ testimonies, either because an individual witness was not available for questioning, or because the range of admissible questions was limited so as to exclude, for example, all issues related to a prior relationship with the accused. In the present case, however, the applicant was familiar with the identity of E.M.L., the only direct witness to the shooting at issue, who refused to attend and testify at the trial for fear of retribution. Further, while the applicant himself was not allowed to attend E.M.L.’s questioning, his counsel was able to cross-examine E.M.L. on all relevant aspects of the case, including the shooter’s identity (see paragraph 32 above).

63. The present case therefore involves the impossibility for the applicant to personally cross-examine the key witness for the prosecution, who gave his statement outside of the public hearing. This restriction did not, however, apply to the applicant’s counsel, who had the opportunity to question E.M.L. and challenge his credibility. In this connection, the Court reiterates that the statement of a witness does not always have to be made in court or in public if it is to be admitted as evidence; in particular, this may prove impossible in certain cases (see Asch v. Austria, 26 April 1991, § 27, Series A no. 203). Moreover, the Court has accepted that in exceptional circumstances there may be reasons for hearing evidence from a witness in the absence of the person against whom the statement is to be made on the condition that his lawyer was present (see Hilden v. Finland (dec.) no. 32523/96, 14 September 1999, and the references cited therein); nevertheless, it has also emphasised that such exceptions should be subject to restrictive interpretation (see Melich and Beck v. the Czech Republic, no. 35450/04, § 53, 24 July 2008).

64. Further, as regards the criteria developed by the Convention organs to examine whether the absence of direct confrontation in an individual case complies with the requirements of Article 6 §§ 1 and 3 (d) of the Convention, it is noted that the first question addressed is identical to the one applicable to cases involving absent or anonymous witnesses, namely whether there was a good reason to hear evidence from a witness in the absence of the accused. In cases where it was found that such a good reason existed, the Convention organs further examined whether the applicants had been substantially affected in the exercise of their defence on account of the lack of such confrontation (see X. v. Denmark, no. 8395/78, Commission decision of 16 December 1981, Decisions and Reports (DR) 27, p. 55; Kurup v. Denmark, no. 11219/84, Commission decision of 10 July 1985, Decisions and Reports (DR) 42, p. 292-93, and Hilden, cited above). In the light of the fact that defence counsel had been able to hear the respective witnesses’ statements and to put questions to them, of which the applicants had subsequently been informed, it was held that the interests of the defence had been sufficiently safeguarded by defence counsel’s involvement in the domestic proceedings.

65. Nevertheless, the Court must allow for the possibility that in an individual case the absence of a direct confrontation between a witness and the accused might entail a handicap for the defence. In such a case, the Court must further assess, following the same considerations as those developed in respect of absent or anonymous witnesses, whether there were sufficient counterbalancing factors in place to compensate for the difficulties encountered by the defence as a result of the absence of direct confrontation (see Schatschaschwili, cited above, §§ 114-16 and 125-31).

66. As regards the decision of the Novo Mesto District Court to have E.M.L. examined by the Dutch authorities, the Court notes that E.M.L. had been summoned to appear before the Novo Mesto District Court twice before without success (see paragraphs 22 and 27 above). According to the statement made by E.M.L. to the investigating judge of the Regional Court of The Hague, he was not willing to attend the trial hearing in Slovenia (see paragraph 29 above). In view of the fact that E.M.L. was a Dutch national and lived in his home country, it does not appear likely, or even possible, that the Slovenian authorities were in a position to compel him to appear at the trial. Thus, the Court considers it reasonable for the district court to attempt to obtain his testimony by other means, namely by requesting the Dutch authorities to take his statement in the Netherlands in the applicant’s presence (see paragraph 31 above).

67. The investigating judge of the Regional Court of The Hague complied with the District Court’s request so far as E.M.L.’s questioning was concerned; however, he did not allow the applicant to personally attend his examination, finding that E.M.L.’s safety could be put at risk and that he might not be willing to testify (see paragraph 31 above). Indeed, in the light of the statements made by E.M.L., but also by A.B. to the investigating judge (see paragraph 30 above), E.M.L.’s fear of the applicant does not appear to be unfounded. E.M.L. was the only direct witness to the shooting of H.C.Z. and, when fleeing from the scene of the crime, he was pursued by the applicant, A.S. and M.Š., the latter carrying a gun (see paragraph 10 above). Therefore, the Court considers that there was a good reason for the Dutch court’s refusal to allow the applicant to be present at E.M.L.’s hearing. Accordingly, the fact that E.M.L.’s testimony was admitted into evidence by the Novo Mesto District Court did not constitute, in and of itself, a breach of Article 6 §§ 1 and 3 (d).

68. Secondly, regarding the question of whether the applicant’s defence rights were substantially affected by the absence of direct confrontation, it cannot be disregarded that E.M.L. was the only person who had seen H.C.Z. being shot and at the same time was not found to be implicated in the crime. It is true that E.M.L.’s account of how the events at issue unfolded was corroborated by the reports of the ballistic and forensic experts (see paragraphs 20 and 21 above) and, so far as the events prior to and after the shooting were concerned, also by M.S.’s testimony (see paragraphs 11 and 28 above). Still, E.M.L. was the only uninvolved eyewitness to the shooting itself, and his statement was the only evidence directly incriminating the applicant of H.C.Z.’s murder. Having regard to the fact that M.Š. confessed to that same crime, it is very questionable whether the applicant could have been convicted without E.M.L.’s testimony. In this regard, it is evident that the Novo Mesto District Court considered that E.M.L.’s testimony pointed persuasively to the applicant’s guilt, and relied on it in the reasoning of its judgment (see paragraph 38 above). Thus, while the applicant’s conviction was based on a considerable body of evidence, E.M.L.’s testimony must be considered decisive in that respect.

69. The Court further notes that the applicant maintained in the domestic proceedings and before this Court that, when identifying him as the shooter, E.M.L. had confused him for his brother M.Š., who had in fact shot H.C.Z. Indeed, the similarity between the applicant and his brother was also acknowledged by E.M.L. himself, who in his statements to both the Czech and Dutch authorities described M.Š. as looking very much like the applicant (see paragraphs 10, 29 and 32 above). However, E.M.L. had seen the applicant twice before the evening of the shooting and testified at all his hearings that it had been him, and not the similar-looking man who had pulled the gun and fired at H.C.Z. Furthermore, E.M.L.’s accounts of the events at issue given at the hearings before the investigating judge of the Regional Court of The Hague on 28 March 2006 and 4 July 2006 (see paragraphs 29 and 32 above) were largely consistent with his statements given to the Czech police on 19 and 20 September 2001, in the two days following the shooting of H.C.Z. (see paragraphs 9 and 10 above). Nevertheless, in his second interview before the investigating judge, E.M.L. switched the positions of the shooter and the witness on the floor plan of the bedroom where the shooting had taken place in relation to his statements given to the Czech police four and a half years earlier (see paragraph 32 above) and to the Dutch investigating judge some three months earlier.

70. In the light of the above circumstances the Court considers that the applicant’s allegations of mistaken identity warranted particularly careful scrutiny. Reiterating that it is normally desirable that witnesses should identify a person suspected of serious crimes in person if there is any doubt about his or her identity (see Dorsoon, cited above, § 74), the Court can accept that, in the circumstances of the present case, the absence of an identification might have caused difficulties to the defence.

71. It therefore remains to be examined whether the applicant was provided with sufficient counterbalancing factors to compensate for those difficulties. In this regard, the Court reiterates that E.M.L. was first questioned during the investigation in the Czech Republic, and again, approximately four and a half years later, during the applicant’s trial for the murder of H.C.Z. E.M.L.’s initial statement was read out at the applicant’s first trial in 2003; thus there can be no doubt that the latter was well acquainted with its contents. It follows that, as also observed by the Supreme Court (see paragraph 42 above), the defence had the opportunity to compare E.M.L.’s pre-trial and trial testimonies for any inconsistencies and to challenge their veracity, including the reliability of E.M.L.’s identification of the applicant as the shooter. Furthermore, the second questioning of E.M.L. by the investigating judge of the Regional Court of The Hague was conducted in the presence of the applicant’s counsel, who had the opportunity to cross-examine E.M.L. In this connection, the Court considers it relevant that, since the applicant was aware of E.M.L.’s initial statement, he was able to prepare his defence against E.M.L.’s submissions and to give his counsel instructions as to what questions should be put to E.M.L.

72. The applicant’s main argument was that E.M.L.’s mistaken identification might only be clarified by a direct confrontation between E.M.L. and himself, either in person or by video link. However, it is noted that, having been informed that he could not attend E.M.L.’s examination in person (see paragraph 31 above), the applicant made no request with the Slovenian or Dutch authorities for E.M.L. to identify him by means of a video link, not even after the latter had switched the positions of himself and his brother during the shooting (see paragraph 33 above). The applicant instead insisted throughout the first-instance proceedings to be personally confronted with E.M.L., and only raised the possibility of identification by video link as a complaint in his appeal against the first-instance judgment (see paragraph 40 above). In this connection, the Court observes that the Slovenian legislation (sections 242 and 242a of the Criminal Procedure Act) provides for an identification procedure whereby the witness is shown the defendant together with other persons unknown to him, and is required to identify the perpetrator of the offence from among the group. Moreover, if there is a serious risk that the witness might lose his life or suffer physical harm as a result of identification, the procedure is conducted in such a way that he cannot be seen by the persons in the identification parade (see paragraph 44 above). The Court moreover considers that such an identification procedure where the perpetrator of the offence is picked out of a group of similar individuals is more reliable than the in-court identification where the witness does not see any other individual than the defendant, and is thus more likely to identify him as the perpetrator. Yet, as already stated, despite having a statutory basis for requesting identification, the applicant made no such request. Given that the applicant’s defence counsel put several questions to E.M.L. with regard to the shooter’s identity and drew special attention to the similarity between the applicant and M.Š. (see paragraph 32 above), the Court would consider it reasonable to expect that, if his doubts as to E.M.L.’s identification of the applicant had not been removed, he would have requested that the issue be further clarified.

73. The Court, moreover, considers that a possible confusion of identity could also have been tested by other means; the applicant could have requested that E.M.L. identify the shooter from an array of photographs including those of the applicant and M.Š. Yet there is no indication in the case file of such, or of similar request having been made either before the Slovenian or Dutch authorities; nor did the applicant claim that a request to that effect had been made; nor, indeed, that it had been refused by the Slovenian or Dutch authorities.

74. Furthermore, as regards the reliance of the Novo Mesto District Court on E.M.L.’s testimony, the Court observes that the District Court put emphasis on the fact that the applicant and E.M.L. had been acquainted prior to the shooting (see paragraph 38 above). Also, while the applicant’s and M.Š.’s version of the events was not found to be consistent with other evidence, especially forensic evidence presented at the trial (see paragraph 39 above), E.M.L.’s statement was corroborated by those same submissions (see paragraph 38 above). Assessing the available body of evidence in its entirety, the Novo Mesto District Court considered E.M.L.’s version of events and his identification of the applicant credible, despite his contradictory accounts as regards the position of the applicant and his brother during the shooting. In this connection, the Court notes that the District Court explicitly addressed the issue of E.M.L.’s divergent accounts of the shooter’s position, but decided to give more weight to E.M.L.’s prior acquaintance with the applicant and his firm conviction as to the shooter’s identity than to the applicant’s version of how the events at issue had unfolded.

75. Given, on the one hand, the fact that E.M.L. met the applicant twice in the days before the shooting (see paragraph 9 above) and, on the other, the more than four-year lapse of time between E.M.L.’s initial statement made immediately after the events at issue and his statements before the investigating judge of the Regional Court of the Hague, coupled with the fact that, with the exception of the shooter’s position in the room, E.M.L.’s subsequent accounts were mainly consistent with his initial statement and were supported by forensic evidence, the Court cannot criticise this view. That is especially so since, as pointed out by the Government, E.M.L.’s statements throughout the proceedings were unambiguous as regards the identity of the shooter.

76. Having regard to the foregoing considerations, the Court finds that there were sufficient counterbalancing factors in place to ensure that the limitations which were imposed on the rights of the defence were not such as to deprive the applicant of a fair trial.

77. Accordingly, the Court considers that there has been no violation of Article 6 §§ 1and 3 (d) of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

78. Furthermore, the applicant complained that the trial court had unfairly refused his request for a new ballistic expert to be appointed and for a 3D reconstruction of the scene of the crime to be ordered. He also complained that Article 6 of the Convention had been violated on account of the lack of reasoning of the Constitutional Court’s decision.

79. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

80. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares admissible the complaint under Article 6 §§ 1 and 3 (d) concerning the inability to confront the main witness for the prosecution, and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention;

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiAndrás Sajó
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment.

A.S.
A.N.T.

CONCURRING OPINION OF JUDGE SAJÓ

I share the view of my colleagues that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention. Irrespective of possible jurisprudential disagreements, it is uncontestable that the applicant (and his lawyer), despite having a statutory basis for requesting identification by video link (see § 72), made no such request. For the Court, this consideration came up as a problem of direct confrontation between a witness and the accused in court and is mooted as a possible handicap for the defence. Of course, equality of arms is a legitimate concern. However, it should be of equal importance for the fairness of a trial that the judge be granted the possibility of being confronted personally with the evidence and that the evidence be cross-examined in his presence. To my regret, the case law does not seem to pay sufficient attention to this aspect of fairness.

 

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