ECHR judgment of 07 March 2017 in the case of "Cerovsek and Bozicnik" v. Slovenia "(applications N 68939/12 and 68949/12).
In 2012, the applicants were assisted in the preparation of applications. Subsequently, the applications were merged and communicated to Slovenia.
In the case, complaints were successfully examined for the preparation of motivated sentences by judges who did not participate in the trial. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants were convicted and sentenced for theft by a single judge. The judge resigned after the sentencing, without making a motivated version of the verdict. Three years later, two judges who did not participate in the trial, wrote a verdict based on the case file. The applicants' conviction was left unchanged when the complaint was examined in the absence of a direct review of evidence. In the conventional proceedings, the applicants complained under Article 6 § 1 of the Convention that there had been a violation of their right to a fair trial, since the judge did not indicate the reasons for their convictions.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. A motivated verdict is important for ensuring the proper administration of justice and preventing arbitrariness. A judge's awareness of the need to motivate his decision with objective grounds is one of the guarantees against arbitrariness. The duty of the judge to give reasons also contributes to the confidence of the public and the accused in the decision and allows to identify the possible bias of the judge. As the principle of the immediacy of criminal proceedings is recognized, the observation by a judge of the conduct of witnesses and applicants and the assessment of their reliability can constitute an important, if not decisive, element in establishing the facts on which the applicants' conviction is based. The judge had to state his observations in a written motivation justifying the sentences.
With regard to the issue of whether the judge's resignation, presumably a reason for the failure to submit motivated sentences, created exceptional circumstances that justified a departure from the standard domestic procedure, the Court noted that the date of her resignation should have been known to her in advance. Thus, it was possible to take steps to terminate the applicants' case on their own or with the involvement of another judge at an earlier stage of the proceedings. As far as it can be understood, the applicants' cases were dealt with separately, albeit by the same judge. The case was not particularly complex, and the applicants notified their intention to appeal the verdict as soon as it was announced. This meant that the judge was immediately informed of the need to produce a motivated verdict. It is especially surprising that, despite the 30-day period established by law, motivated sentences were not made approximately three years after the announcement.
The only way to compensate for the impossibility of presenting the motives for convicting the applicants by the judge was to decide on the revision. When the judge resigned, the sentences were already announced, and the testimony of the applicants and witnesses was attributable information. The higher courts left without a change the verdict of the court of first instance without direct hearing of the evidence. Consequently, it can not be asserted that this deficiency was eliminated by the appellate courts.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded EUR 5,000 to each applicant in respect of non-pecuniary damage.