[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
Legal Guarantees in Criminal Proceedings
By Decision No. Up-381/14, dated 15 February 2018, the Constitutional Court decided on the constitutional complaint of a complainant who was convicted of the criminal offence of insulting someone determined by the first and second paragraphs of Article 169 of the Criminal Code. Although the Constitutional Court established that all the allegations made by the complainant were unfounded, it nevertheless adopted in the decision several important constitutional positions that refer to procedural guarantees in criminal proceedings.
As regards the allegation regarding the right to an impartial trial as determined by the first paragraph of Article 23 of the Constitution, the Constitutional Court stressed that impartiality entails that the person adjudicating on a matter is disinterested as regards the outcome of the proceedings and is open to the evidence proposed and the motions made by the parties. In the assessment of whether in proceedings an individual was ensured the right to an impartial court, the position already established in the constitutional case law is that the impartiality of a court must be assessed according to its effects. The impartiality of a judge is ensured where there are no circumstances relating to him or her that in a reasonable person would raise a justified doubt as to the judge’s capacity to decide impartially on the request at issue (i.e. the subjective aspect of impartiality). Furthermore, from the right to an impartial trial there also follows the requirement that, when acting in concrete cases, courts create or maintain the appearance of impartiality (i.e. the objective aspect of impartiality). The impartiality of judges as the bearers of the judicial function in individual courts must thus also be assessed according to its outward expression, i.e. how the partiality or impartiality of judges is understood by the parties to proceedings and by the public. As regards the alleged violation of the right to an impartial court, the complainant only referred to certain conclusions of the courts regarding evidence with which he did not concur; therefore, the Constitutional Court decided that the constitutional complaint is manifestly unfounded in that part.
The Constitutional Court assessed the alleged violation of the right to present evidence to the benefit of the defendant from the viewpoint of the third indent of Article 29 of the Constitution, namely on account of the fact that the court at issue dismissed his motion to hear six witnesses. In accordance with this provision, anyone charged with a criminal offence has, in addition to absolute equality, the right to present all evidence to his or her benefit. The Constitutional Court stressed that, in accordance with the established constitutional case law, it follows from the third indent of Article 29 of the Constitution that courts, considering the principle of the free assessment of evidence, shall independently decide which evidence they will allow the presentation of and how they will assess the credibility thereof. Courts are not obliged to allow every piece of evidence proposed by the defence; a proposed piece of evidence must be substantively relevant and the defence must substantiate the existence and legal relevance of the proposed evidence with the necessary degree of probability. In doing so, courts must take into account that, when in doubt, every motion of the defence to present evidence benefits the defendant and courts must allow it, unless it is manifest that the evidence cannot be successful. According to the Constitutional Court, the wording of the Constitution that “anyone charged with a criminal offence must be guaranteed the right to present all evidence to his [or her] benefit” should not be interpreted in such a manner that courts should allow every motion to present evidence made by the defence that could merely substantively benefit the defendant. The phrasing implies the following criteria as to the substantive relevance of evidence: a piece of evidence that is not substantively relevant is irrelevant and hence cannot “benefit the defendant”. Furthermore, courts do not have to allow the presentation of evidence proposed by the defendant indefinitely; they only have the duty to allow such evidence if the defence carries out its burden of proof and substantiates with the necessary degree of probability the legal relevance of the proposed evidence. This is also a question that constitutionally depends on whether the evidence benefits the defendant. Namely, motions to present evidence that merely delay the proceedings cannot substantively benefit the defence. The wording of the Constitution is not focused on the benefit that the defence could derive from obstructing the criminal proceedings by delaying them. The position of the Constitutional Court is that the third indent of Article 29 of the Constitution includes the presumption that, when in doubt, every motion to present evidence benefits the defendant. Courts must allow such motions, unless it is manifest that the evidence cannot be successful. Courts may reject the presentation of a piece of evidence if further presentation of evidence to clarify the matter would be redundant, if the fact that the proposed piece of evidence would prove is already proven or irrelevant for the case, or if the means of evidence is inappropriate or unreachable.
The courts at issue dismissed the complainant’s motions to hear witnesses, arguing that they are irrelevant, as the incriminated statement did not refer to concrete historical events or the conduct of the private prosecutor (i.e. the facts), but instead entailed a value judgment of the defendant regarding the private prosecutor, the credibility of which, however, cannot be proven. When assessing the violation determined by the third indent of Article 29 of the Constitution, the Constitutional Court took into account that the complainant was convicted due to the criminal offence of insulting someone and alleged that he submitted the motions for evidence with the purpose of proving the credibility of his statement and that he had reasonable grounds to believe in its credibility, and thus exonerated himself from criminal liability for making the incriminated statement. Therefore, the Constitutional Court assessed the alleged violation within the context of the freedom of expression determined by the first paragraph of Article 39 of the Constitution and Article 10 of the ECHR, as the criminal offence of insulting someone entails a collision between the right to the protection of one’s honour and good reputation, on the one hand, and the right to freedom of expression, on the other.
When assessing the collision between the right to the protection of one’s honour and good reputation, on the one hand, and the right to freedom of expression, on the other, the differentiation between facts and value judgments must be taken into consideration. Namely, the existence of facts can be proven, whereas the veracity of value judgments cannot be proven. Nevertheless, a negative value judgment that harms one’s honour and good reputation must be based on facts in order to be admissible. The person making the statement is exonerated and his or her liability for such statement is excluded if there exists a sufficient basis in the facts for the value judgment in question. In accordance with the established constitutional case law and the case law of the ECtHR, a negative value judgment is inadmissible when it does not have a sufficient basis in the facts. In conformity therewith, the defendant can also be exonerated from (criminal) liability for a negative value judgment if he or she demonstrates that he or she had a sufficient basis in the facts therefor. In view of the above, the position of the courts that the proposed evidence (i.e. the hearing of six witnesses) is not relevant because the prohibited statement does not refer to concrete historical events is in itself incompatible with the right to present evidence to the benefit of the defendant determined by the third indent of Article 29 of the Constitution. In the case at issue, the actual basis for negative value judgments (insults) allegedly followed from hearsay originating from third persons whose examination the complainant proposed. According to the Constitutional Court, hearsay can entail a sufficient factual basis for a negative value judgment if the holder of the value judgment believes in the veracity of the bases therefor. Therefore, the evidence by which defendants wish to prove facts relating to hearsay can be substantively relevant. However, in such case, the allegation that in the circumstances of the case at issue the proposed evidence was not allowed did not give rise to the conclusion that there was a violation of the right to present evidence to the benefit of the defendant as determined by the third indent of Article 29 of the Constitution. Consequently, the Constitutional Court dismissed the constitutional complaint.