EHRM, 07-03-2017, nr. 68939/12, nr. 68949/12

The applicants argued that the criminal proceedings against them had been unfair owing to the fact that the judge who had conducted the trial and had convicted them had not given reasons for her decision. Instead, written judgments had been given, three years later, by judges who had not participated in the applicants' trials. Those judges had had to justify a decision which had not been theirs and had therefore not had freedom of action. The applicants argued that the separation of the roles of the judge who had conducted the trial and pronounced the verdicts in their case and the judges who had then written the judgments had not been envisaged in the relevant legislation and had not been consistent with the principle of immediacy. They alleged in this connection that the credibility of their defence and the witnesses' statements had been decided by judges who had not been able to make any direct assessment of those statements and arguments.

The applicants, moreover, argued that the breach of their right to a fair trial had not been remedied by the higher courts.

The Government asserted that the proceedings against the applicants had been fair. In particular, the applicants had not shown that the reasoning in the written judgments had been incorrect or deficient. Referring to the Supreme Court's view (see paragraph 19 above), they argued that the principle of immediacy had been respected because the verdict had been given by Judge A.K., who had directly observed and examined the evidence. All the evidence in the present case had been presented at the main hearing, which had been presided over by A.K. The latter had pronounced her verdict and had given brief reasons for it orally, as required by the procedural law (see paragraph 22 above.) The verdict had been binding and could only have been overturned on appeal. The Government further submitted that it was only the verdict that had become final and that the reasoning had served merely to control the correctness of the verdict by way of appeal.

The Government further argued that although, as a rule, the same judge that reached the verdict should also give the written grounds for it, there could always be exceptional circumstances that prevented this from happening, such as death, sickness or other events leading to the suspension of the judicial function. Such circumstances were not explicitly regulated in the legislation, but it was reasonable to assume that when they came about the written grounds were to be prepared by another judge, otherwise the case could become time-barred. A judge asked to draft the written grounds in such exceptional circumstances based them on documents, including the records of hearings, and not on a direct assessment of witnesses' credibility. In that connection, the Government pointed out that neither of the applicants had disputed the exactness of the court transcripts.

Lastly, the Government argued that the higher court had examined the written grounds in both cases and had found that they complied with the requirements set out in law (see paragraph 25 above).

37. The Court reiterates that in determining issues of the fairness of proceedings for the purposes of Article 6 of the Convention, it must consider the proceedings as a whole, including the decisions of the appellate courts. Moreover, it is not its function to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings in their entirety were fair (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34; Mishgjoni v. Albania, no. 18381/05, § 49, 7 December 2010; and Saranchov v. Ukraine, no. 2308/06, § 45, 9 June 2016).

In the present case, the Court is called upon to determine whether the applicants had a fair trial despite the fact that the reasons for the verdicts, that is their conviction and sentence, were not given by the judge who had pronounced them but by other judges, who had not participated in the trial.

The Court begins by noting that the present case concerns a trial before a professional judge sitting as a single judge (see paragraph 6 above) and, secondly, that the applicants' situation was a departure from the procedure envisaged in the Slovenian Criminal Procedure Act. Indeed, pursuant to that Act, the judge who conducts the trial and who deals directly with the evidence is supposed to give the verdict and provide written reasons relating to the relevant factual and legal aspects of it, if so requested by the parties (see paragraphs 22 to 24 above). The situation in the present case, referred to by the Government as being of an exceptional nature (see paragraph 35 above), arose because the judge who had examined all the evidence produced during the trial had retired after pronouncing her verdict, without providing written grounds.

The Court takes note of the Government's position, which is a reiteration of the view of the Supreme Court, that the failure of the judge who had conducted the trial to issue written grounds could have had no impact on the fairness of the trial because the primary purpose of such grounds was to allow for review of the verdict by way of appeal (see paragraphs 19 and 34 above). However, it cannot agree with that assertion. It reiterates that although the grounds for the decision are indeed relevant in that they make it possible for the accused to exercise usefully the right of appeal (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252), that is to make full and proper use of that right, they are also important in a more general sense in that they ensure the proper administration of justice and prevent arbitrariness (see, mutatis mutandis, Lhermitte v. Belgium [GC], no. 34238/09, § 67, 29 November 2016). In particular, the Court notes that a judge's awareness that he or she has to justify his or her decision on objective grounds provides one of the safeguards against arbitrariness. The duty to give reasons also contributes to the confidence of the public and the accused in the decision reached (see, mutatis mutandis, Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010, and Lhermitte, cited above, § 67) and allows for possible bias on the part of the judge to be discerned (see, for instance, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 119 and 130–133, ECHR 2005-XIII), and remedied by, for instance, a rehearing before another judge or judges.

In the present case, the aforementioned purpose of the requirement to give reasons could not be achieved since the judge who conducted the trial, A.K., did not set down the reasons that had persuaded her to reach her decision on the issue of the applicants' guilt and their sentence. Furthermore, there is no indication in the records of the hearing that she gave any reasons orally (see paragraph 11 above). The written grounds given by Judges D.K.M and M.B. (see paragraphs 14 and 15 above), which were put together post hoc some three years later, and, as appears from the evidence before the Court, had no input from Judge A.K., could not compensate for that deficiency.

In addition, the Court is mindful of the two judges' lack of involvement in the evidence-gathering process. It observes that Judges D.K.M and M.B. did not participate in the trials in any way and drew up their grounds solely on the basis of the written case files. By contrast, Judge A.K.'s verdict was not based on documents only. In particular, Judge A.K. heard the applicants during the trial, examined a number of witnesses and must have formed an opinion as to their credibility. She must also have made an assessment of the elements of the alleged offences, including the subjective element, namely the applicants' intention to commit them, for which the direct hearing of the applicants was particularly relevant (see paragraphs 7 and 8 above, and Cutean v. Romania, no. 53150/12, § 66, 5 February 2014).

Therefore, as recognised through the principle of the immediacy in criminal proceedings (see Cutean, cited above, §§ 60 and 61, and P.K. v. Finland (dec.), no. 37442/97, 9 July 2002; see also the Slovenian Constitutional Court's decision of 11 October 2006 cited in paragraph 28 above), Judge A.K.'s observation of the demeanour of the witnesses and the applicants and her assessment of their credibility must have constituted an important, if not decisive, element in the establishment of the facts on which the applicants' convictions were based. In the Court's view, she should, for precisely that reason, address her observations in the written grounds justifying the verdicts. Indeed, under domestic law, such observations should form one of the essential components of written judgments (see section 364(7) of the Criminal Procedure Act, cited in paragraph 24 above).

As to the question whether Judge A.K.'s retirement, which was allegedly the reason for her failure to provide written grounds, gave rise to exceptional circumstances which justified a departure from the standard domestic procedure (see paragraph 35 above), the Court observes that the date of her retirement must have been known to Judge A.K. in advance. It should therefore in principle have been possible to take measures either for her to finish the applicants' cases alone or to involve another judge at an early stage in the proceedings. Moreover, it notes that the case was not a particularly complex one and that the applicants gave notice of their intention to appeal as soon as the verdict was pronounced (see paragraph 12 above). That means that Judge A.K. was immediately aware that she would have to provide written grounds. The Court therefore cannot agree with the Government that there were good reasons to depart from the procedure to which the accused were entitled under domestic law. Furthermore, it is particularly striking that despite a statutory time-limit of thirty days, the written grounds were not provided for about three years after the pronouncement of the verdicts, during which time the case files were lost and had to be reconstituted (see paragraphs 13 and 23 above). Those factors raise further concerns about the way the applicants' cases were handled by the domestic courts.

The Court appreciates that in some cases there might be administrative or procedural factors that render a judge's continued participation in the case impossible (see Cutean, cited above, § 61, and Mellors v. the United Kingdom (dec.), no. 57836/00, 30 January 2003). However, it notes, first, that it follows from the considerations in the above paragraph that no such factors arose in the present case. Secondly, even if they had arisen, the only way to compensate for Judge A.K.'s inability to produce reasons justifying the applicants' conviction would have been to order a retrial, by, for instance, the second-instance court remitting the cases to the first-instance court for a new hearing (see paragraph 26 above). The reason for that is because when Judge A.K. retired the verdicts had already been pronounced and the applicants' statements and witness testimony constituted relevant evidence for them (see paragraphs 40 to 43 above).

Lastly, the Court is aware that there is a possibility that a higher or the highest court might, in some circumstances, make reparation for defects in first-instance proceedings (see De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86). However, it notes that in the present case the courts at higher levels of jurisdiction upheld the first-instance Court's judgment without directly hearing any of the evidence (see paragraphs 17, 19, 21, 27 and 42 above, and, mutatis mutandis, Beraru v. Romania, no. 40107/04, § 71, 18 March 2014). It therefore cannot be said that the deficiency at issue in the present case was remedied by the appellate courts.

In conclusion, the Court considers that the applicants' right to a fair trial was breached because of the failure of the judge who conducted their trial to provide written grounds for her verdict and because of the absence of any appropriate measures compensating for that deficiency.

There has accordingly been a violation of Article 6 of the Convention.