Communicated on 22 November 2019
SECOND SECTION
Applications nos. 35199/18 and 43635/18
Boris POPOVIĆ against Slovenia
lodged on 17 July 2018 and 3 September 2018 respectively
SUBJECT MATTER OF THE CASE
The applications concern the domestic courts’ refusal to call and examine numerous witnesses proposed by defence in order to establish the existence of a sufficient factual basis for the applicant’s incriminating statement.
The applicant was convicted of insult under section 169(1) and (2) of the Criminal Code and was sentenced to two months of a suspended prison sentence for the following statement he had made on a public TV on 15 May 2008:
“... [the president of the anti-corruption agency] has a part-time employee who is a former chief of the criminal police in Koper, ... [L.V. ], who is responsible for all the crime that has taken place in Koper all these years, for trafficking drugs and for everything else, for pornographic material and [for making it available] to the minors.”
During the trial the applicant argued that several individuals had informed him of L.V.’s questionable activities, which led him to make the impugned statement. He intended to prove this by calling those individuals as witnesses. The Koper District Court heard three of them and dismissed as irrelevant the applicant’s request to call the remaining six defence witnesses, holding that the incriminating statement was a value judgment which had not been made in relation to a historic event. The judgment was upheld before the Koper Higher and the Supreme Courts.
The Constitutional Court, by six votes to two, dismissed the constitutional complaint. The majority held that the applicant, by trying to prove that he had had a sufficient factual basis to support his statement, could have mounted a valid defence leading to his acquittal. It also found that the lower courts had erred in dismissing as irrelevant the hearing of the defence witnesses. It nevertheless concluded that the applicant’s right to present evidence to his benefit had not been violated because of the way he had argued his position in his constitutional complaint. In particular, in his constitutional complaint the applicant put forward reasons justifying the calling of the witnesses which were different from those he had provided before the first-instance court.
In both applications, the applicant complains under Article 6 of the Convention that his right to a fair trial was violated because he could not obtain the attendance and examination of defence witnesses and was therefore deprived of the opportunity to prove the existence of the factual basis of the impugned statement. In application no. 35199/18, the applicant in this respect also relies on Article 10 of the Convention. Under Article 13 he complains that the Constitutional Court, by examining the applicant’s request to call witnesses instead of remitting the case for re-examination of the first-instance court, deprived him of an effective remedy. In addition, in application no. 43635/18, the applicant complains under Article 6 that the Constitutional Court erred in dismissing his complaint, arguing that he had substantiated the necessity of the witnesses’ hearing in his complaint in the same way as in his request submitted to the Koper District Court on 19 December 2011.
QUESTIONS TO THE PARTIES
QUESTIONS IN RESPECT OF BOTH APPLICATIONS
1. Has there been a breach of Article 6 §§ 1 and 3(d) of the Convention as a result of the domestic courts’ refusal to hear defence witnesses as requested by the applicant (see Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 139-168, 18 December 2018)? Did the domestic courts provide relevant reasons for dismissing the applicant’s request to call witnesses (see, for instance, Topić v. Croatia, no. 51355/10, § 42, 10 October 2013)?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 of the Convention regarding the dismissal of his request to call witnesses, as required by Article 13 of the Convention?
QUESTION IN RESPECT OF APPLICATION NO. 43635/18
3. In that connection, did the Constitutional Court examine and provide relevant reasons for dismissal of the applicant’s request to call witnesses in respect of the arguments provided in the request he had submitted to the Koper District Court on 19 December 2011?
QUESTION IN RESPECT OF APPLICATION NO. 35199/18
4. Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention, on account of the domestic courts’ refusal to examine defence witnesses, who the applicant proposed to have examined with the view to proving the existence of a sufficient factual basis for his incriminating statement (see Castells v. Spain, 23 April 1992, §§ 47-48, Series A no. 236, and Jerusalem v. Austria, no. 26958/95, §§ 45 and 46, ECHR 2001‑II)?
Full & Egal Universal Law Academy