Communicated on 9 February 2015
FIFTH SECTION
Application no. 21668/12
Marino POROPAT
against Slovenia
lodged on 5 April 2012
STATEMENT OF FACTS
The applicant, Mr Marino Poropat, is a Slovenian national, who was born in 1951 and lives in Portorož. He is represented before the Court by Mr B. Gvozdić, a lawyer practising in Sežana.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and R.H. are neighbours residing in a semi-detached house. They have been in conflict for several years and have both instituted several civil proceedings against each other, as well as lodged criminal complaints. In several of these proceedings K.C. was called to testify on behalf of R.H.
In 1999 the applicant was attacked and beaten by unidentified perpetrators.
A. The criminal proceedings against the applicant
On an unspecified date in the beginning of 2004, R.H. lodged a criminal complaint against the applicant. He alleged that the applicant had on 13 February 2004 when they had met in front of the house threatened him by yelling: “I have bought a gun, so it will all be over soon.”
On 29 October 2004 the Koper District Attorney’s Office lodged charges against the applicant for the offence of threatening the security of another person.
On 3 April 2007 the Piran Local Court held a hearing and acquitted the applicant.
On 21 November 2007 the Koper Higher Court upheld the appeal lodged by the District Attorney’s Office and remitted the case back to the first instance court.
On 10 April and 3 July 2009 the Piran Local Court held hearings in the remitted proceedings. It examined the applicant, R.H. and K.C., who was R.H.’s employee. The applicant denied committing the offence, claiming that he had not even met R.H. on the relevant day. K.C. testified that R.H. had called him after the event and told him that the applicant had threatened him. The applicant argued that K.C. could not be considered a reliable witness and requested the court to hear D.C., who could confirm his allegations. The applicant submitted with his request a statement written by D.C., in which the latter declared that R.H. had been influencing witnesses in the proceedings to which he had been a party. The court dismissed the applicant’s request to hear D.C. by reason that the witness at issue had not been present at the time when the event allegedly occurred and that his written statement did not refer to the proceedings before it. It also dismissed the applicant’s request to inspect the scene of the offence and to conduct a reconstruction of the event.
On 3 July 2009 the Piran Local Court found the applicant guilty and sentenced him to three months’ imprisonment on probation. It concluded that it was proven on the basis of the evidence given by R.H. and K.C. that the applicant had threatened the plaintiff by referring to the fact that he had bought a gun and that the threat had created feelings of fear in the injured party. It dismissed the arguments of the defence in respect of the credibility of the witnesses by concluding that it had found the statements given by R.H. and K.C. convincing enough and had no reasons not to believe them. It further held in respect of the dismissal to allow the evidence proposed by the applicant that
“...the court did not hear D.C. because nothing can be deduced from his written statement that would refer to the event which is the subject of [the present] proceedings. Also the inspection of the venue and a reconstruction of the event were not performed, since the manner how the event occurred and moreover the content of the words said can already be established from the other evidence produced.”
On 9 September 2009 the applicant lodged an appeal. He complained about the court’s refusal to hear D.C., stressing that the court should have taken into account the numerous proceedings to which the applicant and R.H. had been parties and that it should have therefore shown more diligence when awarding credibility to the statements of K.C., who had been testifying for the benefit of R.H. in almost all of the proceedings. He further alleged that the court could have doubted the credibility of K.C. on account of the fact that R.H. had mentioned his conversation with K.C. only six years after the event, namely after the applicant had initially been acquitted in the first set of proceedings. He also noted that, albeit the whole area of the house was under video-surveillance, R.H. had not provided footages from cameras in order to prove that he and the applicant had actually met on the relevant day – a fact the applicant was denying.
On 6 January 2010 the applicant became aware of the opening of a criminal investigation against K.C. in respect of the offence of aiding the attack on him in 1999.
On 3 February 2010 the Koper Higher Court dismissed the applicant’s appeal. It observed that the rights of the defence had not been violated by the refusal to hear D.C. or to admit other evidence he had wished to adduce and that the first instance court gave sufficient reasons in this respect.
On 15 February 2010 the applicant lodged a request for the protection of legality. In addition to repeating the arguments advanced before the lower courts, he further referred to the fact that in the meantime criminal proceedings had been opened against K.C. in respect of the 1999 attack. He argued that this confirmed his allegations that K.C. could not be considered a reliable witness.
On 12 April 2010 in a separate set of civil proceedings, D.C. testified that R.H. had been influencing witnesses in order to obtain statements to his advantage.
On 17 June 2010 the Supreme Court dismissed the applicant’s claim for the protection of legality.
On 30 August 2010 the applicant lodged a constitutional complaint. He reiterated his arguments concerning non-admission of evidence and in addition referred to the testimony given by D.C. on 12 April 2010.
On 25 October 2011 the Constitutional Court dismissed the applicant’s constitutional complaint by referring to Section 55.b of the Constitutional Court Act.
B. The enquiry into the attack perpetrated in 1999
Following the attack on the applicant in 1999 a police investigation was opened. The applicant alleged that the attack on him had been organised by R.H.
While a criminal investigation had been opened in respect of K.C. (see above), no person was formally charged for the offence.
In April 2010 the public prosecutor decided to terminate prosecution as time-barred.
The applicant instituted civil proceeding against the State, claiming compensation for non-pecuniary damages sustained by the infringement of his personal rights due to ineffective criminal investigation.
On 29 May 2014 the Constitutional Court decided that the attack had not been duly investigated and that this amounted to an infringement of the procedural aspects of the applicant’s rights to personal dignity and safety (Article 34 of the Constitution) and the inviolability of his physical and mental integrity (Article 35 of the Constitution). The Constitutional Court identified amongst the main deficiencies of the enquiry the failure to duly investigate the indices pointing to R.H. and K.C.
COMPLAINTS
1. The applicant complains under Article 6 § 1 and § 3 (d) of the Convention that the proceedings taken as a whole were unfair and that the Piran Local Court’s decision was arbitrary. He notes in particular that his conviction was based solely on the evidence given R.H. and the latter’s employee and friend K.C., two witnesses that in his opinion were not reliable. He considers that the domestic court did not give sufficient reasons in this respect.
2. The applicant further complains that he was not able to obtain the attendance of witnesses on his behalf under the same conditions as the witnesses against him. He notes that the court dismissed his request to examine D.C., who could have confirmed his allegations about the unreliability of the evidence given by K.C. He further argues that the court’s reasoning in this respect was not logical, since both D.C. and K.C. – who was admitted as a witness – were not present when the incident allegedly occurred.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?
2. In particular, was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
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