FIRST SECTION
CASE OF BAVČAR v. SLOVENIA
(Application no. 17053/20)
 
 
JUDGMENT
 
Art 6 § 2 • Presumption of innocence • Statements made by the Minister of Justice and Prime Minister concerning an important political and economic figure who had been convicted of money laundering at first instance and had subsequently appealed • Close temporal proximity between first-instance conviction, Minister’s statement and subsequent adjudication of appeal by Higher Court • Cumulative effect of statements capable of prejudicing the decision-making of the Higher Court and encouraging the public to believe applicant guilty before proven so with final effect • Domestic courts examined impugned statements through the prism of lawfulness of decision-making
Art 7 • Retroactivity • Domestic courts’ interpretation and application of domestic law consistent with essence of the offence in question and foreseeable

 
STRASBOURG
7 September 2023
 
FINAL
 
19/02/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bavčar v. Slovenia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Alena Poláčková, President,
 Lətif Hüseynov,
 Péter Paczolay,
 Ivana Jelić,
 Erik Wennerström,
 Davor Derenčinović, judges,
 Vasilka Sancin, ad hoc judge,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 17053/20) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Igor Bavčar (“the applicant”), on 3 April 2020;
the decision to give notice to the Slovenian Government (“the Government”) of the complaints concerning Article 6 §§ 1 and 2 with regard to a public statement made by the Minister of Justice of Slovenia during pending criminal proceedings, and Article 7 with regard to the applicant’s criminal liability for money laundering committed with indirect intent, and to declare inadmissible the remainder of the application;
the decision of the President of the Section to appoint Ms V. Sancin to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court), Mr M. Bošnjak, the judge elected in respect of Slovenia, having withdrawn from sitting in the case (Rule 28 § 3);
the parties’ observations;
Having deliberated in private on 27 June 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s right to a fair trial by an independent and impartial court under Article 6 § 1 of the Convention and to the presumption of innocence under Article 6 § 2 of the Convention, on account of a public statement by the Minister of Justice of Slovenia. Given its timing, that statement was allegedly understood to be an instruction and a threat to the Ljubljana Higher Court to uphold the applicant’s conviction. 2. Furthermore, the application concerns the right to no punishment without law under Article 7 of the Convention. The domestic courts’ interpretation – that indirect intent could engage the applicant’s criminal liability for money laundering – allegedly violated the principle of legality. THE FACTS
3. The applicant was born in 1955 and lives in Stari trg pri Ložu. He was represented by Čeferin, Pogačnik, Novak, Koščak and Partners (Odvetniška družba Čeferin, Pogačnik, Novak, Koščak in partnerji), a law firm based in Grosuplje. 4. The Government were represented by their Agent, Ms A. Grum, Senior State Attorney. 5. The facts of the case may be summarised as follows. The applicant and the Government had certain disagreements about the facts. 6. The applicant is a former Slovenian politician who played an important role in the independence process of Slovenia, in particular as the Minister of the Interior during the ten-day war in June 1991. He remained an important figure of the political establishment. He also served as the Minister for European Affairs. 7. In 2002 the applicant moved to the private sector. From 1 June 2007 until 15 May 2009 he was the president of Istrabenz PLC, one of the largest Slovenian holding companies. He allegedly resigned owing to the circumstances related to criminal proceedings against him and the media exposure. Criminal proceedings
8. On 2 August 2012 the Specialised State Prosecutor (Specializirano državno tožilstvo) brought criminal charges in respect of offences of economic crime against the applicant and his three co-accused: B.Š, the then director of the Laško Brewery (Pivovarna Laško), K.S., a member of the board of Istrabenz, and his brother, N.S., owner and director of the company Microtrust d.o.o. 9. After a number of hearings, on 19 July 2013 the Ljubljana District Court rendered a judgment finding the applicant guilty of inciting (napeljevanje) abuse of a position or rights when carrying out an economic activity (zloraba položaja in pravic pri opravljanju gospodarske dejavnosti) and money laundering (pranje denarja), under Article 244 and Article 252 respectively of the Criminal Code as it stood at the relevant time. The court established in particular that the applicant had received, through illegal means, an amount totalling 21,680,000 euros (EUR) in his bank account and then disposed of the funds. The applicant and his co-defendants were found guilty. He was sentenced, inter alia, to seven years’ imprisonment. 10. On 30 May 2014, after the applicant and his co-defendants had appealed, the Ljubljana Higher Court (“the Higher Court”) quashed the monetary fines proprio motu and reduced the prison sentence of one co‑defendant. It upheld the applicant’s main sentence of seven years’ imprisonment and restitution of the illegally obtained assets (premoženjska korist). 11. On 12 September 2014 the applicant filed an application for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court. His co-defendants also filed similar applications (see paragraph 15 below). Proceedings concerning the serving of the prison sentence
12. On 17 September 2014 the applicant received a summons to serve his prison sentence. On 19 September 2014 he filed an application to stay the execution of the prison sentence under section 24(1) of the Enforcement of Criminal Sanctions Act, as it stood at the material time, on the basis that he could not serve the sentence owing to a serious illness, namely severe and lasting heart problems (angina pectoris), which were potentially life‑threatening. The courts repeatedly rejected the applicant’s subsequent applications for a stay owing to the deterioration of his health. The applicant filed a constitutional complaint challenging the rejections. 13. Subsequently, the applicant’s medical condition further deteriorated and he faced emergency hospitalisation. On 9 February 2015 the applicant underwent bypass surgery. After receiving new submissions, on 12 February 2015 the Higher Court stayed the execution of the applicant’s sentence until 30 April 2015. On 13 February 2015 the Constitutional Court rejected the applicant’s constitutional complaint, on the basis that he no longer had any legal interest in pursuing it. 14. On 29 April 2015 the applicant asked for an extension of the stay owing to post-operative complications. On 21 May 2015 the President of the Ljubljana District Court granted the extension until 11 June 2015. On 10 June 2015 the applicant applied again for the extension of the stay of his prison sentence (see paragraph 16 below). Remittal of the case by the Supreme Court and retrial
15. On 18 June 2015, in the main criminal proceedings, the Supreme Court quashed the part of the Higher Court’s judgment in respect of the applicant which related to his criminal liability, in particular since the description of the criminal offence did not cover all statutory elements and remitted the case to the Ljubljana District Court for a retrial. 16. On the same day, by a separate decision, the Supreme Court decided to postpone (odloži) the execution of the applicant’s prison sentence. On 11 September 2015 the proceedings concerning the execution of the prison sentence were terminated, given that the convictions had been quashed. 17. In the retrial, after a number of hearings, on 5 September 2016 the Ljubljana District Court acquitted the applicant of the criminal offence of inciting abuse of a position or rights and found him guilty of money laundering under Article 252 §§ 1 and 3 of the Criminal Code, an offence committed between 11 January 2007 and 31 December 2008. The District Court held that the money which was the subject of the criminal proceedings stemmed from the predicate criminal offence of abuse of a position or rights under Article 244, an offence committed by B.Š. in 2007 at the expense of the Laško Brewery. 18. The District Court found that the applicant had acted with direct intent when he had received the money in his personal bank account by two bank transfers made by Microtrust d.o.o. on 24 October 2007 and 4 February 2008, further to a compensation agreement for a waiver of rights (Dogovor o nadomestilu zaradi odpovedi pravicam). Compensation agreements had been concluded on 29 March 2007 between K.S. and Microtrust d.o.o., and on 30 August 2007 between the applicant and Microtrust d.o.o., following the signing of “original” option contracts (opcijski pogodbi) for two share packages on 11 January and 14 May 2007. Furthermore, two subsequent option contracts for shares that the applicant had signed were antedated (bearing the date of the “original” option contracts). This had constituted a sham formal legal basis for the transaction, the actual purpose being to conceal the illegality of the money’s origin. The amount in question was part of the illegal capital gain obtained by Microtrust d.o.o. and based on an illegal transaction with the shares of Istrabenz d.o.o., specifically, the difference between the purchase and sale price of the shares. The director of Microtrust d.o.o. had made several money transfers to the accounts of the co-accused. 19. In particular, the Ljubljana District Court inferred the applicant’s knowledge of the money’s illegal origin and the purpose of concealing this from specific circumstances, such as the conditions under which the above arrangement had been concluded and the fact that the applicant lacked any financial means to conclude option contracts. Every illegal transaction with the proceeds gave the impression that the transfer was part of a regular transaction, thereby making the identification of the origin of the money and its location more difficult. 20. As regards the money that the applicant had later transferred from his account between 24 October 2007 and 31 December 2008 (seven transfers, including an investment (a 100% stake) in a company in the Netherlands, a gift to his daughter, and purchases of real estate and shares), the court considered that he had acted with indirect intent (recklessly) because he had been aware that he had further concealed the money’s origins and had accepted the consequences of such an action. It relied on the Supreme Court’s recent case-law on money-laundering cases (see paragraphs 69 and 71 below). 21. The applicant was convicted of the criminal offence of money laundering, an offence committed by two separate alternative legally prohibited acts under Article 252, namely (i) accepting and then (ii) further disposing of considerable amounts of money (EUR 21,680,000) which he had known had been obtained in a predicate criminal offence and whose origin he had concealed. 22. The applicant was sentenced to five years in prison. His real estate was confiscated, and he was ordered to pay EUR 18,478,267.02 as a sum equating to the remainder of the illegally acquired property (protipravna premoženjska korist). The aggrieved party, the Laško Brewery, was directed to institute civil proceedings. 23. The applicant was notified of the judgment on 7 November 2016. Footage of the applicant playing basketball
24. On 27 September 2016 the site 24ur.com published footage of the applicant playing basketball, recorded a day earlier, with the title “Video revealing that Igor Bavčar looks as healthy as a fish (zdrav kot dren) and plays basketball”. The description read “When he has to go to prison, he is seriously ill, otherwise Igor Bavčar, as a member of the Old Boys’ basketball team in Ljubljana Moste, fights for the ball and jumps towards the basket. [This is how] it was on Monday night, as he led his team in the role of the heavyweight centre. So was the illness which [meant] he never went to prison just a disguise with which he deceived the Slovenian judiciary?”
25. Other print and electronic media in Slovenia extensively reported the footage. Television interview with the Minister of Justice and reactions of high-ranking State officials in the media
26. On 27 September 2016, given the media attention, the then Minister of Justice, Mr Goran Klemenčič, gave an interview to POP TV (a commercial television station)[1] against the background of allegedly problematic medical opinions and a system which allowed the execution of prison sentences to be postponed. 27. The interview was entitled “Mr Klemenčič: If the Bavčar case becomes time‑barred, a lot of people will have to answer [for that]”, and included the relevant passages (translation, emphasis added):
“Mr Slak [journalist]: ... if you are influential and have money, you can buy yourself a medical opinion in order not to go to jail. When the case is getting close to becoming time-barred, you happily play basketball. ... Mr Klemenčič, at a political level, you are politically responsible for ensuring the functioning of the judiciary, [and] that there are no such anomalies. But today it seems to me a mockery of both prosecutors and police officers and, last but not least, judges who reached a [decision about] conviction in this case, that Mr Bavčar apparently, having pretended that he was sick (maybe he will sue me for that word), now plays basketball. Is that justified? ... Mr Klemenčič: What is happening now, however, is absolutely a slap in the face for the Slovenian rule of law. Last year we were also sitting in this studio, presenting the amendments to the Enforcement of Criminal Sanctions Act, leading to significant tightening of the conditions under which, or the [situations where] it is possible to avoid serving a sentence for health reasons. We adopted them not because of Mr Bavčar, but in spite of [him]. Why do I say ‘in spite’ of [him]? Because it was very difficult to get this bill through the legal procedure, which is in a way understandable, if you perhaps recall that, in the previous government, the Minister of the Interior, Dr Vinko Gorenak, met with him and had lunch. What [has been] forgotten is that the judgment against Mr Bavčar was issued at the time when we changed the law, [and] under [that law] he should have gone on to serve his sentence and could no longer avoid serving his sentence owing to his so‑called ‘medical reasons’, which may or may not have been justified (I am not a doctor), [except the judgment] was overturned by the Supreme Court, and today he is a free man. Mr Slak: A free man. ... But Mr Podržaj [Director of the Dob Prison] says he could also play basketball at Dob [a prison], which is a popular sport, but there is something wrong with the system. Mr Klemenčič: Absolutely. No, he has to be convicted with final effect to play ... Mr Slak: Make no mistake, none of us, none of us here, is calling upon (ne apelira tukaj, da mora sodišče obsoditi) the court to convict Mr Bavčar. It’s about everyone having equal power in their hands. And now I will ask you this, Mr Klemenčič: the case may become time-barred, since the judge has been writing the verdict for three weeks, although the trial at first instance was undeniably swift. Do you think there are sufficient reasons to take so long writing the judgment? Because, you know, if the case becomes time-barred, you and your President [Prime Minister] will [suffer] all the political consequences. ... The judiciary will say ‘Look, that was the law, Mr Klemenčič did nothing, we could not do anything’. Mr Klemenčič: It is always like this. The Ministry of Justice, although it has extremely little leverage to put pressure on the prosecution or the judiciary, is always blamed in the end. But I would like to say something. Writing what, I assume, is a very complex judgment in three weeks, I would not like to point the finger at the judge here. However, if in this case, in the case of Bavčar – not because he is Bavčar, but because this concerns one of the important transition stories in the history of the Republic of Slovenia. Mr Slak: On the basis of which the credibility of the judiciary and the trust in the rule of law is being assessed. Mr Klemenčič: [That] also. And on the basis of many other cases, and some that should be taken into consideration but are not...If this case 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. As you said, and we are both lawyers, Mr Slak, [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 [time‑barred cases], 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. ...”
28. Shortly after the Minister’s statement, the President of the Ljubljana District Court, Mr Marjan Pogačnik, responded publicly at a press conference, as reported on 29 September 2016 on the news portal 24ur.com, with the title “Pogačnik: no worries or panic” and the subheading “Pogačnik is offering his head to Klemenčič”[2]. According to the journalist, after the Minister’s statement, the president of the court said: if the Minister wants heads, I put mine on a plate (Če minister želi glave, mu na pladnju ponujam svojo.), and also that the Minister should rather “stick to his gardening” (naj se raje drži svojega vrtička) and not interfere with the independence of the judiciary. 29. Given that the parties had not yet been notified of the written judgment at the time, the president of the court stated at the press conference as follows: the case was very complex and voluminous, and it will not be possible to respect the thirty-day time-limit. The judge was working on writing the judgment tirelessly, even in her spare time. She will fulfil her duty within a reasonable time. 30. An article, published on the same portal on the same day and submitted by the applicant, conveyed the following: the president of the court stated that most of his colleagues in court had understood the statement as an announcement of sanctions and a determination of responsibility, for which there was no real basis at the material time. Responsibility within the judiciary was determined in prescribed proceedings by certain bodies, such as the Judicial Council, which appointed and dismissed court presidents. The Minister might have a role in proposing the procedure for potentially dismissing a president, but he was certainly not the person who could decide who would be president of a certain court. Mr Pogačnik further emphasised that he would not allow someone who had no competence in that area to threaten a judge before he or she had even made a mistake. The judge would continue to do everything possible so that time-barring would not become a realistic option. The content of the statements of the President of the Ljubljana District Court was not contested by the respondent Government which partly relied on them in their submissions (see paragraph 99). 31. Lastly, the material submitted by the applicant and the Constitutional Court’s decision indicate that on 14 November 2016, in a parliamentary debate on a legislative package for the prosecution of banking crime, the then Prime Minister, Dr Miro Cerar, stated in reply to a question put by a member of parliament, in relation to the amendments to the Enforcement of Criminal Sanctions Act, which made the conditions for the postponement of a prison sentence owing to health reasons more severe: “Therefore, our government is preventing something as no [government] has done before, as you said, that those who should probably be serving a prison sentence would not be playing basketball (Torej, naša vlada preprečuje to, kar ni nobena prej, da ne bodo, kot ste rekli, igrali košarko nekateri, ki bi morali verjetno prestajati zaporno kazen)”. The Higher Court’s judgment and the applicant’s appeal
32. On 21 November 2016 the applicant appealed against the first‑instance judgment on several grounds, including on the grounds of substantial violation of the provisions of criminal procedure. He argued that the criminal offence of money laundering could not have been committed with indirect intent under the relevant provisions of the Criminal Code and the case-law as applicable at the time of the commission of the offence. 33. On 30 November 2016 the applicant supplemented his appeal, stating that the Minister’s statement had exerted undue pressure on the judges of the Higher Court, constituting a violation of the right to an independent and impartial court (Article 23 of the Constitution). He also cited the Prime Minister’s statement and referred to the infringement of the presumption of innocence under Article 27 of the Constitution (see paragraphs 31 above and 62 below). 34. On 12 April 2017 the Higher Court dismissed the applicant’s appeal and found that one could conceal the illegal origin of money with indirect intent, relying on the Supreme Court’s judgment of 30 January 2014 (see paragraph 69 below), which was also reflected in the legal doctrine. 35. Moreover, regarding the statements made by senior politicians, the Higher Court did not agree with the applicant’s arguments that such statements could influence the outcome of the appeal proceedings. Even if that were true, it considered that the statements were frivolous and intended to advance the standing of the person who had made them (Citirane izjave, če so resnične, pa [pritožbeno sodišče] ocenjuje kot neresne in namenjene bolj promociji dajalca izjav). The Higher Court held that such statements could not affect the outcome of the appeal proceedings. 36. Following the dismissal of the applicant’s appeal by the Higher Court, the judgment of the first-instance court became final on 23 May 2017. 37. On 27 June 2017 the applicant lodged an application for the protection of legality, relying on several grounds under Articles 371 and 372 of the Criminal Procedure Code and human rights violations under Articles 22, 23, 27 and 29 of the Constitution and Article 6 of the Convention. 38. As to the impugned statement of the Minister, the applicant argued that he could deduce from the second-instance court’s judgment that the court had not learned of that statement from the media sources quoted in the appeal. However, the court could have easily verified the veracity of the statement. Furthermore, the applicant also referred to the Prime Minister’s statement. The applicant considered that the Higher Court had not met the requirement of impartiality in this regard. He relied on the Constitutional Court’s judgment no. Up 57/14 and on Krause v. Switzerland (no. 7986/77, Commission decision of 3 October 1978, Decisions and Reports 13, p. 73), submitting that the presumption of innocence was not limited to procedural guarantees and bound all State authorities. 39. In particular, as to the development of the case-law in relation to money laundering committed with indirect intent, the applicant considered that the provisions of the Criminal Code had been overly interpreted by the courts in his case, which the applicant could not have foreseen, and had also been applied retroactively. He had thus been convicted of a criminal offence that, at the time of its commission, had not been considered a crime. This constituted a breach of the legality principle (Article 28 of the Constitution). 40. The applicant started serving his prison sentence on 18 September 2017. The Supreme Court’s judgment
41. On 5 February 2019, dismissing the applicant’s application, the Supreme Court held, inter alia, that Article 252 of the Criminal Code defined the acquisition, storage and disposal of illegal money as criminal money‑laundering activities. This was in line with international instruments on money laundering and the comparative practice and legal theory in Germany, Austria and the United Kingdom. In particular, the Supreme Court relied on the United Nations Convention against Transnational Organized Crime, the Council of Europe’s conventions on money laundering and the relevant directives of the European Union (EU) (see paragraphs 76-83 below). The Supreme Court also interpreted Article 252 of the Criminal Code in the light of the Slovenian Acts on money laundering, which further defined the different ways of committing a money laundering offence (alternativna izvršitvena ravnanja pranja denarja), such as the acquisition, possession and disposal of money or property derived from criminal activity (see paragraphs 66-67 below). 42. The Supreme Court stressed that the aim of criminalising money laundering was to prevent any spending of money stemming from a criminal offence or its introduction into the monetary system. Such money represented a threat to lawful financial and economic traffic (see paragraph 79 below). 43. As to the acquisition and storage of money derived from illegal activity, Article 6 § 1 (c) of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141, “the Strasbourg Convention”) stated that the acquisition and possession of such property, when the person in question knew at the time of receiving it that it was the proceeds of illegal activity, constituted money laundering (see paragraph 80 below). Other international instruments and comparative material cited above in paragraph 41 had similar provisions, allowing for a broad interpretation. 44. The first-instance court had described the applicant’s subjective attitude concerning the acquisition of the money as his awareness of the fact that the money derived from a criminal offence when he had received it and that he had intended to conceal its origin. By signing the antedated option agreements and the compensation agreement for a waiver of rights, the applicant had participated in the selling of shares, had been aware of the whole plan and had wanted it (“zavedel in ... hotel”). The applicant had therefore acted with direct intent. 45. Moreover, the Supreme Court held that Article 252 of the Criminal Code concerning a perpetrator’s subjective attitude was open to interpretation, and allowed for criminal offences being committed with either direct or indirect intent. Such an interpretation was not an arbitrary decision of the court, but a judicial interpretation of the legal provision (see paragraph  69 below). Relying on its case-law which had developed since the beginning of the trial, and the Slovenian Acts on money laundering (see paragraphs 66-67 below), the Supreme Court thus upheld the lower courts’ findings that the applicant had been aware that any further disposal of the money by a transfer within the banking system (nakazilo denarja znotraj bančnega sistema) would further conceal the money’s origin. The applicant had thus accepted the consequences of such an action and had acted with indirect intent. 46. The first-instance court had drawn conclusions as to the applicant’s subjective attitude from objective factual circumstances, which reflected Article 6 § 2 (c) of the Strasbourg Convention (see paragraph 80 below). The description of the subjective attitude of the perpetrator had not been in the operative part of the annulled first-instance judgment, and this had been rectified in the retrial. Lastly, the criminal offence of money laundering could even be committed through negligence (Article 252 § 5 of the Criminal Code). 47. Regarding the question of the Higher Court’s impartiality in view of the prominence of the case in the media and in politics, the Supreme Court held that the Higher Court’s reasoning corresponded to the standard required by the second-instance court, and that the trial had respected the standard of objective impartiality. 48. Concerning the allegations about other State authorities or parts of the judiciary, statements made and reactions to them “did not require a specific response, as their impact on the lawfulness [had] not [been] explained” ([Izčrpne navedbe zahteve] v zvezi z drugimi državnimi organi ali deli pravosodja ter posameznimi izjavami in odzivi nanje niti ne terjajo posebnega odgovora, saj njihov vpliv na zakonitost ni pojasnjen). Accepting the applicant’s allegations would mean that statements made by one branch of power could practically impede the functioning of another branch. The Supreme Court referred to the clear constitutional framework of checks and balances, and the judiciary’s independence in its decision-making. The Constitutional Court’s decision
49. Relying on Articles 14, 22, 23, 27, 28 and 29 of the Constitution (see paragraph 62 below), on 7 June 2019 the applicant filed two constitutional complaints, which he later supplemented. The applicant alleged that he had been unable to anticipate the relevant developments in the case-law which had expanded the criminalisation of the offence of money laundering. Bearing in mind the logical and linguistic interpretation of Article 252, he considered that money laundering could be committed with direct intent only. 50. Citing the impugned statement, the applicant further alleged that the Minister had threatened the Higher Court’s judges by saying that they would be removed from their judicial office if they issued a judgment which was contrary to his request. The ordinary courts were under pressure from politics, and had not responded adequately to the Minister’s statement, while the Higher Court had even feigned ignorance of the statement. The applicant also referred to the statement of the then Prime Minister, Dr Cerar, who had said that the government would prevent someone who should probably be serving a prison sentence from playing basketball (see paragraph 31 above). 51. On 12 December 2019, in its decisions nos. U-I-290/19-9, Up-657/19 and Up-660/19, the Constitutional Court refused to accept the applicant’s constitutional complaints and rejected his application for a review of constitutionality. It confirmed that Article 252 of the Criminal Code allowed for the interpretation that the offence of money laundering could be committed with direct or indirect intent. It relied on Del Río Prada v. Spain ([GC], no. 42750/09, ECHR 2013), and Koprivnikar v. Slovenia (no. 67503/13, 24 January 2017), reiterating that the development of the case‑law in relation to the determination of a criminal offence was not at odds with Article 7 of the Convention, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen (citing Vasiliauskas v. Lithuania [GC], no. 35343/05, § 155, ECHR 2015). 52. Relying on the international and EU instruments binding upon Slovenia, as well as on the recommendations of the Council of Europe’s second Conference on Money Laundering in States in Transition of 29 November 1994 and of the Financial Action Task Force, the Constitutional Court held that the lower courts had not exceeded the linguistic limits of the interpretation of the relevant provision and described how the commission of the offence had fulfilled all subjective and objective elements (subjektivni in objektivni znaki). 53. In its case-law, namely decision no. Up-758/03, the Constitutional Court had already noted that even in the case of indirect intent, a perpetrator consciously and willingly brought about the prohibited consequences (see paragraphs 73-74 below). Since the offence of money laundering could be committed even through negligence, it would make no sense for indirect intent, where the perpetrator had acted wilfully with respect to the prohibited consequence, not to be criminalised. The development of the case-law had therefore been consistent with the substance of the criminal offence in question and could reasonably have been foreseen by the applicant. 54. Regarding the Minister’s statement, the Constitutional Court relied on Article 23 of the Constitution and on the following Court judgments: Allenet de Ribemont v. France (10 February 1995, §§ 36 and 41, Series A no. 308); Turyev v. Russia (no. 20758/04, §§ 19-23, 11 October 2016); Krivolapov v. Ukraine (no. 5406/07, §§ 127-31, 2 October 2018); Daktaras v. Lithuania (no. 42095/98, § 44, ECHR 2000‑X); and Krause (cited above, p. 76). It stressed that, in addition to the procedural guarantees, it was important to alleviate the circumstances that could harm the appearance of the objective impartiality of judicial decision-making or cast doubt on it. In relation to the statements of the representatives of the executive power about pending criminal proceedings, the Court’s jurisprudence would consider them from the standpoint of the presumption of innocence (Article 6 § 2 of the Convention). When examining such statements, the Court considered all concrete circumstances and the choice of words. 55. In this regard, the Constitutional Court referred to the reasoning of the Higher Court and the Supreme Court (see paragraphs 35 and 48 above) and emphasised that it clearly indicated that both had distanced themselves from the Minister’s statement. The Constitutional Court pointed out that the applicant had not provided the full context in which the Minister had stated the disputed words, despite this being essential under the Court’s case-law. 56. After watching the relevant television programme, the Constitutional Court found that the programme covered public reactions to the video of the applicant playing basketball in spite of the fact that he had applied for a stay of execution of a prison sentence owing to a severe, life-threatening illness. The video had been released at a time when the case had been about to become time-barred. The television host had asked the Minister whether the applicant’s case becoming time-barred would make a mockery of the Slovenian judiciary and what the Ministry of Justice could do about it. The Minister had replied that his ministry had very little influence on the functioning of the judiciary, but that he would do everything in his power to ensure that, should the statute of limitations run out, heads would roll. 57. The case was important, not only because of the applicant himself, but because it was an important transition story. The Minister had also pointed out that this was not a question of whether the applicant would be convicted or acquitted, but of the time-barring of any criminal proceedings being the worst possible outcome and undermining people’s trust in the judiciary. A statement in such a context could obviously not, in the Constitutional Court’s view, affect the appearance of a fair trial. 58. Similarly, the statement of the then Prime Minister, Dr Cerar, could not have breached the applicant’s right to an impartial court, since it had not touched upon the applicant’s guilt, according to the Constitutional Court. Therefore, the Supreme Court’s stance that this statement had not required a specific response as its impact on the lawfulness had not been explained was not contrary to Article 23 of the Constitution (Zato stališče Vrhovnega sodišča, da ta izjava ne terja posebnega odgovora, ker da njen vpliv na zakonitost ni pojasnjen, ni v neskladju s 23. členom Ustave) (see paragraph 48 above). 59. The constitutional judge Mr Klemen Jaklič, PhD mult. submitted a dissenting opinion. He stated that according to the Court’s jurisprudence, prior public statements concerning decisions that could be taken only by a court were potentially problematic. 60. The dissenting judge considered that the Minister’s statement had not only constituted a certain pressure but had also – wittingly or unwittingly – not been completely innocent with regard to the determination of the applicant’s guilt. 61. On 23 June 2021 the applicant finished serving his prison sentence. RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND PRACTICE
The Constitution of the Republic of Slovenia
62. The relevant provisions of the chapter on Human Rights and Fundamental Freedoms of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) (Official Gazette, no. 33/91-I of 1991) read as follows:
Article 23
(Right to Judicial Protection)
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
Article 27
(Presumption of Innocence)
“Any person charged with criminal conduct shall be presumed innocent until found guilty by a final judgment.”
Article 28
(Principle of Legality in Criminal Law)
“No one may be punished for an act which had not been declared a criminal offence under law or for which a penalty had not been prescribed at the time the act was performed. Acts that are criminal shall be established and the resulting penalties pronounced in accordance with the law that was in force at the time the act was performed, except where a more recent law adopted is more lenient towards the offender.”
The Criminal Code
63. The offence of money laundering was introduced into the Slovenian Criminal Code (Kazenski zakonik, Official Gazette no. 63/94, as amended) in 1996. The relevant provisions applicable at the material time read as follows:
 Intent
Article 17
“A criminal offence shall be committed with intent if the perpetrator was aware of his conduct and wanted to [behave in this way], or if he was aware that his conduct could have a prohibited consequence, but accepted [the consequence of that action].”
Negligence
Article 18
“A criminal offence shall be committed by negligence if the perpetrator was aware that a prohibited consequence might result from his conduct but nevertheless recklessly believed that he would prevent it from occurring or that it would not occur; or if he was not aware that such a consequence might occur but should have and could have been aware of that possibility, in the given circumstances and with respect to his personal attributes.”
Money Laundering
Article 252
“(1) Whoever accepts, exchanges, stores, holds, disposes of, uses in an economic activity or in any other manner determined by the act, conceals or attempts to conceal by laundering the origin of money or property that was, to his knowledge, acquired through the commission of a criminal offence, shall be punished by [a period of] imprisonment of up to five years.
... (3) If the money or property referred to in paragraph ... one ... of this Article is of high value, the perpetrator shall be punished by [a period of] imprisonment of up to eight years and a fine.
... (5) Whoever should and could have known that the money or property had been acquired through a criminal offence, and whoever commits the offences referred to in paragraphs one or three, shall be punished by [a period of] imprisonment of up to two years. ...”
64. On 1 November 2008 the new Criminal Code (Official Gazette, no. 176/21) entered into force, which defined money laundering as a criminal offence under Article 245. The amended Criminal Code increased the potential sentence for that offence, while the description of the criminal offence remained the same. The Criminal Procedure Act
65. Section 370 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 8/06) provides for the following grounds on which a first-instance judgment may be challenged:
Section 370
“A judgment may be challenged:
(1) on the grounds of a substantial violation of provisions of criminal procedure;
(2) on the grounds of a violation of criminal law;
(3) on the grounds of an erroneous or incomplete determination of the factual situation;
(4) on account of a decision on criminal sanctions, confiscation of assets, the costs of criminal proceedings, indemnification claims and the announcement of the judgment in the press and on radio or television.”
Section 371
“(I) A substantial violation of the provisions of criminal procedure shall be understood to exist: ... (11) where the enacting terms of the judgment are incomprehensible or contradictory in themselves, or in contradiction with the reasons [given in] the judgment; where the judgment lacks reasons altogether, or reasons relating to crucial facts are not adduced or are completely vague or considerably inconsistent in themselves; or where there is a considerable discrepancy between the statement of reasons relating to the content of documents or the records of statements given in the course of proceedings on the one hand, and these documents or records themselves on the other.”
Section 372
“A violation of criminal law shall exist if the criminal law was violated in respect of the issue of:
(1) whether the act for which the defendant [was] prosecuted is a criminal offence; ...”
Section 388
“(1) The panel of the court of second instance may, in deliberations or on the basis of a trial, dismiss an appeal as out of time or inadmissible, or reject an appeal as unfounded and affirm the judgment of the court of first instance, or annul the judgment and return the case to the court of first instance for retrial and decision, or modify the judgment of the court of first instance. ...

Outcome for Article 6: violation