Communicated on 16 June 2014
FIFTH SECTION
Application no. 59868/08
Danas VIZGIRDA
against Slovenia
lodged on 2 December 2008
STATEMENT OF FACTS
The applicant, Mr Danas Vizgirda, is a Lithuanian national, who was born in 1980 and lives in Kaunas. He is represented before the Court by Mr R. Završek, a lawyer practising in Ljubljana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 March 2002 four men wearing masks entered the Radovljica branch of Gorenjska banka (the Bank of Gorenjska). One of the men was carrying a handgun and waited at the entrance, holding three clients at gunpoint. The others jumped over the counter and pushed two bank employees to the floor. One of the men then emptied the cash registers and the other two guarded the bank employees. After having collected the money from the cash registers, the men got into a car and fled towards the railway station.
Informed of the bank robbery, the police set to search the area. In the nearby woods they discovered an abandoned car, and shortly thereafter saw four men running away. One of the men, later recognised as A.V., was seen carrying a bag, which he dropped when the police officers started to approach. The bag was later found to contain some of the money stolen from the bank, a handgun and two masks, on one of which biological traces belonging to the applicant and another man (E.B.) were found.
All four men were caught, arrested and taken to police custody. They were later identified as the applicant, A.V., M.K. and E.B., all of them Lithuanian nationals. It appears that the applicant, at the time “an unidentified person”, was informed of the reasons for his arrest at 2.00 p.m. An interpreter translated the information into Russian for him orally.
Later the same day the police twice stopped a car with a Lithuanian number plate close to the area where the applicant and other three men were caught. The second time they arrested the driver, a Belarusian national L.K., and took him to police custody. In the evening, a van with a Lithuanian number plate, which had been seen close to the scene of the robbery, was stopped in Ljubljana. The police arrested the two men inside the vehicle, who were identified as N.U. and G.V., Lithuanian nationals.
On 15 March 2002 the applicant was questioned by the investigating judge in the presence of a district state prosecutor, his court-appointed counsel with whom he communicated in Russian, and the Russian interpreter. The applicant only gave his first name, but refused to provide any other information, for fear that he would never again be allowed to see his small child. He also stated that he had no job in Lithuania and that he wished to go home.
Five other suspects denied their involvement in the robbery. A.V., however, confessed that he had participated in the robbery, stating that he and the applicant, who had come to Slovenia together and were staying with L.K., had met M.K., E.B., N.U. and G.V. a few days before. Having run out of money, they decided to rob the bank in question.
Following the questioning, the investigating judge ordered all seven suspects including the applicant to be placed in detention on remand. On 10 April 2002 the Kranj District Court held a hearing at which it reviewed the applicant’s and other suspects’ detention. Their detention was subsequently extended.
On 28 May 2002 the district state prosecutor lodged an indictment, charging the applicant, A.V., M.K. and E.B. with robbery, one count of theft of a motor vehicle and two counts of attempted theft of a motor vehicle. L.K., N.U. and G.V. were charged with aiding and abetting the robbery.
On 10 and 11 July 2002 the Kranj District Court held a hearing in Slovene; again, a Russian interpreter was provided to the applicant and his five Lithuanian co-defendants. When the charges were read to the defendants, all of them confirmed having understood them.
At the hearing, A.V. changed his statement and claimed that a man had offered to find work for him and the applicant. Once they had given him their passports, he had demanded that they take part in the robbery. The applicant had allegedly been too scared to participate, so they had left him in the woods to wait for them. The applicant gave a similar account of the events, claiming that he had not been among those who had robbed the bank, but had waited for their return in the woods. According to the record of the hearing, the applicant answered questions of the presiding judge, the district prosecutor, his counsel and one of his co-defendants’ counsel. The other five defendants maintained that they had taken no part in the robbery.
In addition to hearing the defendants, the court also heard a number of witnesses. In this connection, if follows from the record of the hearing that the applicant had trouble with the translation of one of the witness statements and could only understand it upon re-reading it. He did, however, ask a question to one of the police officers called as a witness and comment on another police officer’s statement that a mobile phone had been seized from him during the arrest, stating that that was not true.
On 16 July 2002 the five-member panel of the Kranj District Court rendered judgment convicting the applicant, as well as A.V., M.K. and E.B. of robbery and acquiring unlawfully gained property (a stolen car). The applicant and M.K. were sentenced to eight years and four month imprisonment, E.B. to eight years and seven months, while A.V. was sentenced to five years and four months in prison. L.K., N.U. and G.V. were all found guilty of aiding and abetting the robbery and sentenced to five year imprisonment.
On 6 August 2002 the applicant’s court-appointed counsel appealed against the district court’s judgment, arguing, inter alia, that the court had based its decision to a decisive extent on the statement given by A.V. in the investigation. However, neither A.V. nor the applicant had been afforded an interpreter in the preliminary proceedings. Moreover, the applicant had only been informed, in a language he could understand, of the reasons for his arrest by the investigating judge, who questioned him forty-eight hours after he had been placed in police custody. According to the applicant’s counsel, that amounted to a breach of procedural rules. Also the applicant himself lodged an appeal against the first-instance judgment.
On 14 November 2002 the Ljubljana Higher Court, while partially upholding the applicant’s and other defendants’ appeals, dismissed the applicant’s complaint that he had neither been informed of the reasons for his arrest nor questioned by the police in a language he could understand. The higher court noted that no mention of that had been made in the case-file. In any event, the court was of the view that, if the applicant had not understood the reasons for his arrest, he would have mentioned that during his questioning before the investigating judge. The applicant was served with a Russian translation of the judgment whereby his conviction acquired the force of res judicata.
On 25 February 2003 the applicant sent to the Kranj District Court an application entitled “an appeal to the Supreme Court” in which he complained that his right to use his own language in criminal proceedings had been violated. He alleged that during his first questioning, he had not been represented by a counsel, and neither had he been provided with an interpreter. Thus, he had not understood the reasons for his arrest. He also claimed having stated at the court hearing that he did not understand Russian very well. Regardless, the Kranj District Court had not provided him with interpretation into Lithuanian.
The application was written in Lithuanian, with the exception of the introductory explanation in Slovene, in which the applicant informed the court that he spoke neither Russian nor Slovene and that he understood only a little Russian and could not write in it.
The Kranj District Court made inquiries and established that there were no interpreters or translators of Lithuanian listed in the directory of court interpreters. In such a case, the Slovenian authorities could contact the Lithuanian embassy and arrange for a translation into English, German or Russian, which would then allow for the text to be translated into Slovene. Thereupon, the district court instructed the applicant to submit his application in Russian, the language that he had used throughout the criminal proceedings. As the applicant made no reply, on 29 April 2003 the district court rejected his application as incomprehensible.
The applicant lodged a constitutional complaint against this decision, alleging that the Kranj District Court had violated his right to a defence and to use his own language and script. He explained that he could not speak or understand Russian very well, and in particular was not able to read decisions and other written documents in the Russian language due to the different script, which had prevented him from effectively defending himself. The constitutional complaint was written in Lithuanian, however, it appears that one of the inmates in the prison where the applicant was serving his sentence was fluent in Lithuanian and translated it into Slovene. The Kranj District Court replied to the applicant’s allegations, stating that he had never informed the courts that he had any trouble understanding Russian.
On 24 March 2005 the Constitutional Court annulled the impugned decision of the Kranj District Court and remitted the applicant’s “appeal to the Supreme Court” for fresh consideration. The court pointed out that the right to use one’s language and script was one of the fundamental principles of criminal proceedings and, accordingly, imposed a duty upon a court to provide the necessary translation of documents and/or interpretation at main hearings. Moreover, defendants who, like the applicant, were deprived of their liberty had the right to submit applications in their own language. The court emphasised that written communication required a higher level of knowledge than oral communication, which meant that even if the applicant could follow the main hearing with the assistance of the Russian interpreter, he was not precluded from lodging his written applications in Lithuanian. In this regard, the Constitutional Court also noted that the applicant’s court-appointed counsel had been relieved of his duty when the second-instance judgment had been adopted, rendering his conviction final. Thus, the applicant had lodged the remedy by himself.
In the remitted proceedings, the Kranj District Court regarded the applicant’s appeal as a request for the protection of legality (an extraordinary remedy) and referred it to the Supreme Court.
On 26 January 2006 the Supreme Court dismissed the applicant’s request for the protection of legality, having established on the basis of the case-file that immediately after placing the applicant in police custody, the police had informed him of the reasons for his arrest with the assistance of the Russian interpreter. When questioned two days later by the investigating judge, the applicant had also been assisted by his court-appointed counsel. The Supreme Court found that the applicant had not been informed of his right to use his own language in the proceedings either by the investigating judge or by the Kranj District Court, which could constitute a serious breach of procedural rules if it had any impact on the legality of the final judgment. However, the Supreme Court noted that in the case at issue, the records of the main hearing included no mention by the applicant that he could not understand Russian. Moreover, according to the Supreme Court, the applicant’s participation in the main hearing, where he gave a statement and commented on a statement made by one of the witnesses, did not show that he could not understand Russian.
The applicant lodged a constitutional complaint against the Supreme Court’s judgment.
On 3 July 2008 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that the Supreme Court’s conclusion that the applicant’s right to use his own language had not been violated, since he had not requested to use his language at the main hearing, was not inconsistent with the constitutional guarantees of fair trial, having regard to the circumstances of the case at issue and the reasons given by the Supreme Court for its decision.
B. Relevant domestic law
The relevant provisions of the Criminal Procedure Act governing the use of language in the criminal proceedings read as follows:
Article 4
(1) Any arrested person shall be advised immediately, in his mother tongue or in a language he understands, of the reasons for his arrest. An arrested person shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of a counsel of his own choice and that the competent body is bound to inform upon his request his immediate family of his apprehension.
Article 7
(1) Charges, appeals and other submissions shall be filed with the court in the Slovenian language.
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(3) A foreigner who has been deprived of freedom shall have the right to file submissions with the court in his language; in other cases foreign subjects shall be allowed to file submissions in their languages solely on the condition of reciprocity.
Article 8
(1) Parties, witnesses and other participants in the proceedings shall have the right to use their own languages in investigative and other judicial actions and at the main hearing. If a judicial action or the main hearing is not conducted in the languages of these persons, the oral translation of their statements and of the statements of others, and the translation of documents and other written evidence, must be provided.
(2) Persons referred to in the preceding paragraph shall be informed of their right to have oral statements and written documents and evidence translated for them; they may waive translation rights if they know the language in which the proceedings are conducted. The fact that they have been informed of their right, as well as their statements in this regard, should be entered in the record.
(3) The translation shall be done by a court interpreter.
COMPLAINTS
The applicant complains under Articles 5 § 2 and 6 §§ 1 and 3(a) and (e) of the Convention that he was not promptly informed, in a language he could understand, of the reasons for his arrest and the charges against him, and that the interpretation and translation of the relevant documents into Russian, instead of Lithuanian, his native language, prevented him from participating effectively in the ensuing criminal trial. The applicant claims that he was only able to communicate orally in basic Russian, but was not at all versed in the Cyrillic script and could not read the judgments and other documents. Moreover, he was not informed of his right to use his own language in the proceedings, as required under domestic law. Lastly, the applicant alleges that the domestic courts had denied him effective judicial protection in respect of the violations committed with regard to his right to use his language in the proceedings.
QUESTIONs TO THE PARTIES
1. Did the information about the reasons for the applicant’s arrest, which was conveyed to him in the Russian language, satisfy the requirements of Article 5 § 2 of the Convention?
2. Were the criminal proceedings against the applicant compatible with Article 6 § 1 taken in conjunction with Article 6 § 3(a) and (e) of the Convention. In particular did the applicant’s knowledge of Russian, which was not his native language, enable him to understand the information on the nature and cause of the accusation against him and to participate effectively in the trial process?
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