FIFTH SECTION
Application no. 29187/10
Rudolf ŠMAJGL
against Slovenia
lodged on 6 May 2010
STATEMENT OF FACTS
The applicant, Mr Rudolf Šmajgl, is a Slovenian national, who was born in 1959 and lives in Mirna.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was engaged in a business providing internet services with sexual content, which had its seat in Všenory in the Czech Republic. He cooperated with certain enterprises in the Netherlands as well as in the United States of America. It appears that in 2001 there existed a certain dispute as to whether the applicant was to continue cooperation with the Dutch partners, one of them being Mr B. Before meeting B. in September 2001, the applicant connected his studio to the network of his partners in the United States.
On 18 September 2001, the applicant, his brother M. and another Slovenian citizen A. were in a certain villa in Všenory. B. and his bodyguard L., also a Dutch national, came to the villa to meet with the applicant. Ms S. was also present in the villa, more specifically she was in the living room through which they entered. The applicant, M., B. and L. then met in a bedroom, where B. was shot to death. After hearing the gun shots, S. saw L. running out of the villa, followed by A., the applicant and M. who carried a gun.
Following preliminary investigating proceedings conducted by the Czech authorities, which included examination and video recording of the scene, autopsy of B., ballistic examination and examination of witnesses, the applicant was charged with murder of B. The indictment was served on his ex officio appointed lawyer on 10 October 2001.
In January 2002 the Slovenian authorities took over the case and the trial was conducted before the Novo Mesto District Court. Medical expert Š. and forensic ballistic expert F. were asked to prepare reports in the case.
In the course of the proceedings the applicant defended himself alleging that it was his brother who shot B. and that L. must have confused him for his brother who looked almost alike. He requested to cross-examine L. in person and that L. be confronted with both him and M., in order to recognise the shooter. After obtaining a report from a forensic ballistic expert residing in Croatia who had criticised in certain points the report prepared by expert F., the applicant requested the court to appoint a new ballistic expert. He also requested that a special 3D reconstruction of the crime scene be carried out.
During the proceedings, the Novo Mesto District Court requested the judicial authorities in the Hague (the Netherlands) to examine L. and a certain A.B. Their examination was first carried out without the applicant or his lawyer being informed, for which reason the Slovenian Supreme Court on 19 May 2005 remitted the case to the district court for re-examination with an instruction that the applicant be given an opportunity to examine L., who was considered the key witness in the case. However, the investigative judge at the respective court in the Hague refused to allow the applicant to attend the examination, finding that L. would not have been willing to testify in his presence. The second examination of L. was therefore carried out in the presence of the applicant’s lawyer only. He was able to put questions previously prepared by the applicant. L. replied to them. At this examination, L. said that he would not be willing to be examined by the applicant through a video conference.
At the trial hearing, the court heard M., A., ballistic expert F. and medical expert Š. It read out statements of S., which had been given during her pre-trial examination, at which the applicant had been present, and statements given by two witnesses, whose whereabouts were later unknown to the court and who had testified on the role of the applicant in the business in question. It also read out statements given by L. and A.B. during their examination in the Hague.
M. testified in the proceedings that he had shot B. in self-defence and that he had later thrown away the gun he had used.
On 12 September 2006 the Novo Mesto District Court delivered a judgment finding the applicant guilty of murder and sentenced him to fifteen years in prison. The court relied predominately on the testimony given by L., to whom it referred as the key witness in the case and who had maintained that he had seen the applicant shooting at B. It also relied on the testimony of S., who had described that, immediately after she had heard the shooting, the three men had run out of the bedroom. It also referred to the indications of the applicant’s role in the business in question and his apparent dispute with the Dutch partners. As regards M.’s testimony, the court found it unreliable. In particular, it found that M. had no motive to kill B. and that the gun, by which B. had been shot and for which M. had said to have thrown it away on the run, had been found in 2006 perfectly preserved in the possession of the applicant. The court noted that L., when asked to make a sketch of the scene, had confused the position of the applicant and M. It nevertheless found his statement that the applicant, whom he had known, had been the one who had shot B., persuasive. The court explained that it had refused the applicant’s request for a 3D forensic reconstruction because ballistic expert F. had explained that this method would have not been reliable in the circumstances of the case. The court moreover refused to appoint another ballistic expert finding that any doubts raised by the ballistic report prepared by an expert hired by the defence had been removed by questioning of F. at the hearing.
On 1 February 2007 the Ljubljana Higher Court rejected 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 participate at the examination of L. 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 L.’s examination. It further noted that L. had provided a credible and consistent testimony which had not been refuted by any of the expert reports.
On 24 January 2008 the Supreme Court decided on the applicant’s appeal on points of law. It rejected the applicant’s complaint of a violation of his defence rights due to the inability of examining the main witness, finding that L. had been consistent in his testimony throughout the proceedings and that the applicant had been familiar with the testimony and had therefore been able to effectively challenge it through the assistance of his lawyer. It further noted that L.’s testimony had been corroborated by other evidence, in particular by S.’s testimony.
The applicant subsequently appealed to the Constitutional Court, which dismissed the appeal as unfounded on 6 April 2010.
B. Relevant domestic law
Section 178 of the Criminal Procedure Act (Zakon o kazenskem postopku, official consolidated version ZKP-UPB4, Official Gazette no. 32/2007) read, in so far as relevant, as follows:
“...
(4) The prosecutor, the accused and the defence counsel may attend the examination of a witness. The investing judge may order that the accused be removed from the examination room, if the witness does not want to testify in his presence, if the circumstances indicate that the witness would not tell the truth in the accused person’s presence or for the purposes of conducting eyewitness identification. The accused should not be present at the examination of a witness who is younger than 15 years and was a victim of one the criminal offences mentioned in the third paragraph of section 65 (sexual assault, neglect of a minor and trafficking in human beings) ...”
COMPLAINTS
Invoking Article 6 § 3 (d) of the Convention, the applicant complains that he was unable to examine the key prosecution witness L., either directly or through a vide-conference. He also complains that in view of his allegations that L. was mistaken in his identification of the defendant, the authorities should have performed video or confrontation identification which would have proven his innocence. In this connection, the applicant argues that there was sufficient evidence calling into question his identification as the suspect, such as the fact that he and his brother were of a similar appearance, that L. had confused the position of him and his brother on the drawing of the scene and that S. had admitted to have seen only the applicant’s brother with the gun. The applicant submits that there were no legitimate grounds for protecting L. from a direct examination.
In addition, the applicant complains that the court unfairly refused to allow a 3D reconstruction of the scene and his request to appoint a new ballistic expert. He also complains that Article 6 of the Convention was violated on account of the lack of reasoning of the Constitutional Court’s decision.
QUESTION TO THE PARTIES
Has there been a violation of Article 6 § 1 alone or in conjunction with § 3 (d) on account of the refusal to allow the applicant to examine L. in person or through a video conference or with respect to the dismissal of his request that a video or confrontation identification by L. be carried out?
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