Justice Minister’s statements violated presumption of innocence (ECtHR)

Statements made by the Minister of Justice and Prime Minister concerning an important political and economic figure who had been convicted at first instance and had subsequently appealed violated presumption of innocence.

In Chamber’s judgment dated 7.9.2023 in the case of Bavčar v. Slovenia (application no. 17053/20) the European Court of Human Rights held that there had been by 6 votes to 1, a violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights, and unanimously, no violation of Article 7 (no punishment without law).

Facts 

The applicant is a former Slovenian politician who played an important role in the independence process of the country as the Minister of the Interior and later also served as Minister for European Affairs. Subsequently, he became president of one of the largest Slovenian holding companies. In 2016, in retrial proceedings, he was convicted by the first-instance court of two acts of money laundering, namely, accepting and then disposing of over 21 million euros which he had known had been obtained in a predicate criminal offence and whose origin he concealed.

Following the applicant’s first conviction in 2015 his prison sentence was stayed upon his request owing to his poor state health. However, shortly after his conviction on retrial and while the applicant was waiting to be notified of the judgment, video footage emerged of him playing basketball. On the same day, given the widespread media attention, the then Minister of Justice (“the Minister”) in the context of a television interview stated, among other things, “What is happening now, however, is absolutely a slap in the face for the Slovenian rule of law ... he has to be convicted with final effect to play [basketball] ... If this case [Bavčar] becomes time-barred, let me say here: I have made a commitment many times on your show, and I hope that I have delivered. Here I will do everything possible to make heads roll. ... [I will do this] not because someone should be convicted or acquitted ..., but because the time-barring of any court case, and we have too many of them, is the worst possible result. I believe this will not happen, but if it does ... I think a lot of people will have to answer [for that] and I will be the first to demand answers. ...”

The statement caused a reaction by the President of the trial court and the then Prime Minister. In particular, the latter, during a parliamentary session, stated that the government had to ensure that “those who should probably be serving a prison sentence would not be playing basketball”.

The applicant’s appeals and constitutional complaints were unsuccessful.

Law – Article 6 § 2:

The applicant was one of the important political and economic figures of the country and his activities had been of great interest to the general public. He had faced charges involving a considerable amount of money, with serious economic repercussions, involving the flagships of Slovenian economy. The interest thus that the media had shown in the high-profile criminal proceedings against him had been fully understandable. Further, there had been a close temporal proximity between the applicant’s conviction at first instance, the impugned statement by the Minister and the subsequent adjudication of his appeal by the Higher Court. It was also understandable that the video footage showing him playing basketball, while he had previously sought not to be imprisoned on health grounds, could call for a reaction by the highest State officials.

The Minister’s impugned statement, in particular “if this case becomes time-barred … I will do everything possible to make heads roll” had triggered a reaction by the President of the trial court and the then Prime Minister.

The President of the trial court, expressing the views of his fellow judges, had perceived the impugned statement as an announcement of sanctions and a determination of judges’ responsibility.

Both the Minister and the Prime Minister, two of the highest representatives of the State’s executive branch, had been duty-bound to respect the principle of the presumption of innocence. The blunt and imprudent language used by the Minister responsible for the organisation and proper functioning of the courts, had been likely to influence public opinion as regards the applicant’s guilt and to give the impression that it had been high time for the domestic courts in question to convict the applicant, with final effect. He should have therefore been particularly careful not to say anything that might have given the impression he had wished to influence court proceedings. Although the impugned statement had been made after the first-instance court had found the applicant guilty, it had been clear that the principle of presumption of innocence had still applied. The applicant had challenged that judgment on several grounds, including on the grounds of substantial violation of criminal procedure provisions. If the appeal had been granted and the case remitted for retrial, it had been almost certain that the criminal proceedings would have become time-barred and thus discontinued. Although the Minister had taken no action to trigger proceedings against the judges it was not for the Court to speculate what he would have done had the case been remitted for retrial. The words he had used had been capable of prejudging the decision-making of the Higher Court.

The Prime Minister’s statement, essentially expressing doubt about the applicant’s innocence, had further reinforced the impression given by the Minister’s interview.

The cumulative effect of the imprudent statement of the Minister, in particular considering the potential threat as perceived by the domestic judges and its timing, and of the statement of the Prime Minister had been capable of prejudging the decision-making of the Higher Court. Given that both officials had held senior positions, they should have exercised particular caution in their choice of words concerning the pending criminal proceedings. Their statements could have encouraged the public to believe that the applicant had been guilty before he had been proved guilty with final effect in accordance with the law.

The domestic courts at all levels of jurisdiction had addressed the applicant’s complaints about the impact of the impugned statements on the pending criminal proceedings. The Constitutional Court had also relied on the Court’s case-law in respect of the presumption of innocence under Article 6 § 2. However, the applicant’s allegations had been examined through the prism of a potential breach of the lawfulness of decision-making, determining thus whether the decisions had lacked material consistency, which was a different issue. In this connection, the Court found that the approach of the Slovenian courts revealed a similar conceptual deficiency as that of the Croatian courts in Peša v. Croatia. The Court recalled in this respect that alleged breaches of distinct fair-trial guarantees under Article 6 should be duly and thoroughly examined by domestic courts, the presumption of innocence being above all a procedural safeguard and one of the elements of a fair trial.

Conclusion: violation (six votes to one).

The Court also held, unanimously, that there had been no breach of Article 7 in relation to the applicant’s complaint concerning his conviction of the second legal act of money laundering which had been based on indirect intent, further to a domestic case-law development. The domestic courts’ interpretation and application of domestic law had been consistent with the essence of the offence in question and had been foreseeable.

Article 41: EUR 10,000 in respect of non-pecuniary damage; claim for pecuniary damages dismissed. (source: echr.coe.int/ photo: freepik.com)

Full text of judgement is available here

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Editorial

Editorial
George Kazoleas, Lawyer

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