The drafting of the reasoning of a court decision by another judge rather than by the judge in the case constitutes a violation of the fair trial
JUDGMENT
Cerovšek and Božičnik v. Slovenia 7-3-2017 (no. 68939/12 and 68949/12)
SUMMARY
The case concerned their allegations of the applicants regarding the fairness of their conviction for theft. Both were found guilty by the same judge, who came retired before drawing up the reasoning of the conviction. This was done by other colleagues who did not participate in the trial. The applicants objected before the competent courts but their appeal were dismissed. Referring to Article 6 § 1 (right to a fair trial), the applicants complained that their right to a fair trial had been violated because the grounds for their sentence had been issued by judges who had not participated in the verdict and trial. The ECtHR found that the Convention had indeed been violated
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicants, Silvo Cerovšek and Štefan Božičnik, are Slovenian nationals who were born in 1962 and 1946 respectively and live in Bizeljsko and Artiče (Slovenia). The case concerned the fairness of their criminal convictions for theft.
The applicants were both charged with separate instances of theft by cutting down and taking trees from a forest belonging to another person, and appropriating the wood. They were both tried by a professional judge, A.K., sitting as a single judge. The judge found both Mr Cerovšek and Mr Božičnik guilty in oral verdicts delivered in June and July 2007. The applicants were ordered to pay the victims compensation, and sentenced to six and seven months’ imprisonment, respectively, which in both cases was suspended for three years.
Both applicants gave notice of their intention to appeal. This gave rise to an obligation on the part of Judge A.K. to draw up written grounds for her verdicts. However, the judge then retired. In 2010 two different judges delivered written grounds for A.K.’s original verdicts, setting out the reasons for the defendants’ conviction and sentence.
The applicants appealed against the judgments, complaining that the fairness of the proceedings had been undermined by the fact that the grounds for their convictions had been provided by judges who had not participated in the trial and had not convicted them. However, the appeals were both dismissed by the Ljubljana Higher Court – as were further applications for the protection of legality made by the applicants to the Supreme Court. The applicants made constitutional complaints about the judgments to the Constitutional Court, but the court refused to admit these on 3 April 2012.
THE DECISION OF THE COURT
Relying on Article 6 § 1 (right to a fair trial), the applicants complained that their right to a fair trial had been violated because the reasons for the convictions had been given by judges who had not reached the verdict and had not participated in the trial.
Violation of Article 6 § 1
Just satisfaction: EUR 5,000 each Mr Cerovšek and Mr Božičnik (non-pecuniary damage), and EUR 2,500 each (costs and expenses)
