FOURTH SECTION
 
 
 
 
 
 
 
CASE OF SVETINA v. SLOVENIA
 
(Application no. 38059/13)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
22 May 2018
 
FINAL
 
22/08/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Svetina v. Slovenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ganna Yudkivska, President,
 Vincent A. De Gaetano,
 Paulo Pinto de Albuquerque,
 Iulia Motoc,
 Carlo Ranzoni,
 Marko Bošnjak,
 Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 27 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38059/13) 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 Matjaž Svetina, on 5 June 2013. 2. The applicant was represented by Mr B. Gvozdić, a lawyer practising in Sežana. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney. 3. The applicant alleged that Articles 6 and 8 of the Convention had been breached on account of the examinations of two mobile telephones in the course of the criminal proceedings. 4. On 25 August 2015 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and lives in Koper. A. Circumstances of X’s death and preliminary police inquiry
6. After going missing on 4 November 2007, X was found dead near the local Komen-Branik road, close to the town of Komen, on the morning of 5 November 2007. He had been repeatedly stabbed and cut with a knife and then run over by a car. The police were called to the scene, as were the district state prosecutor and the duty investigating judge. 7. On examining the crime scene, X’s mobile telephone was found in his car. The incoming and outgoing calls and the text messages sent to and from X’s telephone number were checked by police officers at the scene. It appeared from the telephone records that on 4 November 2007 X had communicated only with a person using a certain telephone number, from which a message of an explicitly sexual nature had also been sent to X. After the telephone directory was checked it was established, presumably by the police, that the telephone in question belonged to a woman who happened to be the applicant’s grandmother, with whom, as established on the basis of the official records, the applicant lived. Furthermore, having been informed that X’s mobile telephone had been found, the district state prosecutor requested the duty investigating judge to order the 
S company – the mobile network operator in question – to produce records of telephone calls made and text messages sent from the telephone. 8. On the same day (5 November 2007) the investigating judge of the Koper District Court issued an order for a search of X’s home and ordered the S company to provide data concerning communication undertaken via X’s mobile telephone. The S company on the same day submitted to the Koper District Court a disk containing X’s telephone records. 9. On the morning of 6 November 2007 the police stopped the applicant’s car and subjected him to a so-called “security check” (varnostni pregled), finding a knife (allegedly bearing traces of what could be blood) and a mobile telephone in the applicant’s pocket. After examining his telephone they established that he had used the aforementioned telephone number from which the aforementioned calls had been made and the aforementioned message sent to X. They seized these objects and arrested the applicant. 10. On the same day (6 November 2007), relying mostly on information found in X’s and the applicant’s telephones pointing to a link between X and the applicant, the investigating judge issued a search order in respect of the applicant’s home and the cars he was using. The state prosecutor furthermore requested that a court order for the obtaining of the applicant’s comprehensive telephone records be issued. 11. On 7 November 2007 the investigating judge issued an order that the M company – a mobile network operator – provide data concerning the applicant’s mobile telephone record. The M company provided a disk containing the requested data on the same day. 12. In the course of the preliminary inquiry, the investigating judge ordered a post-mortem examination of X, a DNA analysis and a comparison of biological traces found on the applicant’s clothes and other objects seized during the home search with those found on X’s body. She also ordered a medical examination of the applicant with a view to establishing any injuries. 13. The applicant, represented by counsel, was heard on 8 November 2017 and was subsequently detained on remand. B. Judicial criminal investigation against the applicant and the indictment
14. On 16 November 2007 the investigating judge opened a judicial criminal investigation against the applicant in respect of the criminal offence of aggravated murder. She, inter alia: ordered that a reconstruction be carried out at the crime scene; appointed a psychiatrist and a psychologist to examine the applicant and prepare opinions; ordered forensic experts in vehicle science and car crash investigations to prepare reports on specific aspects of the case; and again ordered that the M company and the S company provide traffic data relating to X’s and the applicant’s telephones. She also examined a number of witnesses. 15. On 29 November 2007 the applicant was, at his request, heard by the investigating judge, to whom he admitted to running over X, but submitted that this had merely been an accident. 16. On 24 December 2007 the state prosecutor filed an indictment for aggravated murder against the applicant, alleging that he had killed X by stabbing him thirteen times and cutting him at least nine times on his head, neck, chest and other parts of the body and running over him in his car. C. Trial
17. Following his unsuccessful objection to the indictment, the applicant was put on trial for aggravated murder. A number of hearings were held at which witnesses, experts and evidentiary material were examined and various expert reports ordered and subsequently read out. 18. On 10 June 2008 the Koper District Court found the applicant guilty as charged and sentenced him to thirteen years in prison. 19. On 12 December 2008 the Koper Higher Court, after an appeal by the applicant, quashed the first-instance judgment, finding that the lower court had failed to clarify the facts surrounding a possible shoe imprint on the victim’s back, which could have indicated the presence of a third person at the scene of the crime. The case was remitted to the Koper District Court for fresh examination. 20. In the retrial proceedings, several hearings were held and the applicant lodged an application for the exclusion of all evidence from (i) the records of the crime-scene investigation until (ii) the records of the last hearing in the first set of proceedings, on the grounds that that evidence had allegedly been tainted by the unlawful examinations of his and X’s telephones. He argued that the examinations of his and X’s telephones had violated his and X’s rights under Article 37 of the Constitution (see paragraph 32 above) and that the relevant court orders had been issued a week too late. He also requested that the police officers who had subjected him to a security check (see paragraph 9 above) and arrested him be examined in this connection. Both requests were refused by the court. 21. On 4 September 2009 the Koper District Court convicted the applicant for the aggravated murder of X and sentenced him to twelve years’ imprisonment. In view of (i) the expert opinions regarding the shoe traces on X’s back which had led to the conclusion that the presence of another person at the crime scene prior to X’s death could not be excluded, and (ii) the fact that the knife with which X had been stabbed and cut had not been found, the Koper District Court held that there was insufficient proof that the applicant had stabbed and cut X. However, the court found on the basis of the forensic medical evidence that X had still been alive before he had been run over by the car and that the injuries to X’s chest, spine and aorta, which had been the direct cause of his death, had been caused by the applicant having intentionally run him over with his car. It further found it proven on the basis of the evidence at the scene – such as (i) a piece of rubber tube belonging to the applicant’s car, (ii) the applicant’s biological traces found on X’s body, (iii) X’s biological traces found on, inter alia, the applicant’s clothing (which was blood-stained) and on the outside of the applicant’s car – that the applicant had been beyond doubt at the crime scene and had had contact with X. Referring, in particular, to the findings of the experts in vehicle science, who had performed reconstructions at the scene testing the applicant’s versions of events, the court discounted the possibility that the applicant had run over X by accident. The court furthermore found that the applicant and X had known each other, which was confirmed by the applicant’s statements as well as by telephone records and witness testimony. Lastly, the court referred to the telephone records, together with other evidence such as medical evidence and X’s petrol bill, when elaborating on the time of death, finding that it had undoubtedly occurred on 4 November 2007 – probably sometime after 6.24 p.m., when the last (missed) call from X’s telephone had been recorded on the applicant’s telephone. 22. As regards the procedural decisions taken during the proceedings the court gave the following explanation:
- It refused a request lodged by the applicant for access to the police notes on the examination of his telephone because it would have been unlawful to include in the file evidence obtained without a court order.
- In view of the foregoing conclusion that the examination of the applicant’s telephone could have not been admitted to the file, the court refused as unnecessary a request by the applicant for the examination of the officers who had seized the applicant’s telephone (see paragraph 20 above).
- As regards the exclusion of evidence (see paragraph 20 above) the court explained that the applicant had become a subject of investigation following the examination of the data in X’s telephone, which had not interfered with the applicant’s rights under Article 37 of the Constitution (see paragraph 32 below). It further noted that the examination of the applicant’s telephone had amounted to a violation of the said provision but carried no evidentiary weight, as at that point the police had already obtained the necessary information from X’s telephone. In addition, the court noted that the results of this examination had not been included in the file and had not been relied on by the court. D. Appeals
23. On 9 November 2009 the applicant appealed, complaining, inter alia, that the judgment had violated his defence rights. In particular, he alleged that the district court should have excluded all evidence from the file because it had been based on the police’s examinations of X’s and his own mobile telephone without the necessary court order. He further stated as follows:
“It is irrelevant that the police, by [their] unlawful interference with [X]’s mobile telephone, did not directly violate the appellant’s right under Article 37 of the Constitution [“Privacy of correspondence and other means of communication”], because the fact remains that the police obtained that evidence (data from [X]’s mobile telephone) without a court order – that is to say unlawfully.”
24. The applicant moreover argued that the examination of X’s telephone alone had not adduced enough evidence to arrest the applicant and that that had been possible only after the applicant’s telephone had been examined. Thus, in his view, the impugned judgment should not have concluded that the examination of his telephone had had insignificant evidentiary value. 25. On 27 January 2010 the Koper Higher Court allowed the applicant’s appeal in part and reduced his sentence to nine years in prison. The court agreed with the applicant that the act of which he had been convicted – that is to say running over X with his car – did not in itself constitute murder with aggravating factors (that is to say aggravated murder), as the first‑instance court had not proved that X had sustained severe physical pain or psychological suffering. However, all the other applicant’s complaints, including the one regarding the unlawful examinations of his and X’s mobile telephones, were dismissed. 26. As regards the examination of X’s telephone the higher court found that, regardless of whether the police officers had examined X’s telephone before the issuance of the court order, what was crucial was that they had received the court order for the telephone records to be produced before they had identified and located the applicant. Therefore, the examination of X’s mobile telephone, which had constituted an urgent step in the police inquiry, had not been conducted in violation of his constitutionally guaranteed right to protection of the privacy of communication. As regards the examination of the applicant’s mobile telephone, the higher court agreed with the lower court that “the examination of the applicant’s telephone [had been] ... unconstitutional, but this violation had not been important in the evidentiary sense”. The higher court also upheld the lower court’s decision not to obtain from the police their notes on the examination of the applicant’s telephone. 27. On 8 April 2010 the applicant lodged an appeal on points of law, complaining of, inter alia, the allegedly unlawful examinations of X’s and the applicant’s telephones and reiterating the arguments he had put forward in his appeal (see paragraphs 23 and 24 above). In particular, he argued that the police had obtained crucial evidence – that is to say the message with explicitly sexual content – when examining X’s telephone without having a court order to do so, and that his arrest had been based on a subsequent unlawful examination of his telephone. 28. On 22 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law. Firstly, as regards the police examination of X’s mobile telephone, the Supreme Court pointed out that the applicant had not even argued that the examination of X’s telephone had directly violated his own right to privacy. While not excluding the possibility that the examination of a deceased’s person’s telephone might impinge upon the most intimate spheres of his or her dignity, it considered that in the case at hand it had not interfered with X’s right to privacy, as personality rights ceased at death. Neither had, in the Supreme Court’s view, the applicant’s own constitutionally guaranteed privacy rights been interfered with, as the examination had not revealed his identity. Moreover, the district state prosecutor and the duty investigating judge had been present at the scene of the crime when the police had discovered the telephone in X’s car, and the applicant had been arrested only after the court order for the examination of X’s telephone had been issued. The Supreme Court concluded that the police’s examination of X’s mobile telephone had not interfered with the applicant’s right to privacy and that the impugned examination had not been causally related to the incriminating evidence. 29. Secondly, with regard to the police’s examination of the applicant’s mobile telephone, the Supreme Court noted that it had been undertaken without a court order and referred to the Koper Higher Court’s finding that the examination had been unconstitutional. However, in the Supreme Court’s view, the information on whether the text message with sexual content had been sent from the applicant’s telephone would have inevitably been discovered, either (i) by means of a simple call to the number from which the message had been sent, (ii) by checking the applicant’s telephone’s SIM card (for which, in the Supreme Court’s view, no court order would have been necessary), or (iii) on the basis of a court order, which had in point of fact later been issued. In view of this conclusion, the Supreme Court considered that, regardless of the fact that the police had examined the applicant’s telephone without a court order, the identification of the applicant’s mobile telephone number as the one from which the text message in question had been sent did not constitute inadmissible evidence that should have been excluded from the case file. E. Constitutional complaint
30. The applicant lodged a constitutional complaint, reiterating the allegations made in his previous appeals. Relying on Article 37 (see paragraph 32 below) the applicant argued that the examinations of his and X’s telephone had been unlawful and that the examination of his telephone had violated the aforementioned provision, as well as Article 8 of the Convention. Relying on Article 15 of the Constitution (again, see paragraph 32 below), the applicant argued that the lower courts should have excluded the evidence obtained unlawfully. In particular, as regards the examination of X’s telephone, the applicant argued that he “had not sought redress for the violation of X’s right to privacy (mental integrity) and freedom of communication as he had not been entitled to do so [... but rather] had exclusively pointed out that the violation had occurred and the [trial] court had based its decision [to convict the applicant] on the consequences of that violation ...” In this connection he, referring to X’s “right to piety” (pravica do pietete), disputed the Supreme Court’s view that X’s right to privacy had ceased with his death and pointed out that a court order had been nevertheless subsequently issued. With regard to the Supreme Court’s finding that the evidence in question would have been inevitably discovered, the applicant argued that the domestic law contained a strict rule requiring the exclusion of all evidence obtained by means violating human rights (“the domestic exclusionary rule”). He furthermore argued that there had been a violation of Article 29 (see paragraph 32 below) of the Constitution because the first-instance court refused to obtain from the police their notes on the examination of his telephone. 31. On 28 January 2013 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration, pursuant to section 55b(2) of the Constitutional Court Act (see paragraph 37 below). II. RELEVANT DOMESTIC LAW
A. The Constitution
32. The Constitution of the Republic of Slovenia (Official Gazette nos. 33/91-I, 42/97, 66/2000, 24/03, 69/04, 68/06), provides, in so far as relevant, as follows:
Article 15
(Exercise and Limitation of Rights)
“Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution. The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary owing to the particular nature of an individual right or freedom. Human rights and fundamental freedoms shall be limited only by the rights of others and in such cases as are provided by this Constitution. Judicial protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed. ...”
Article 26
(Right to Compensation)
“Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or authority performing such a function or activity within a state or local community authority or as a bearer of public authority. Any person suffering damage also has the right to claim, in accordance with the law, compensation directly from the person or authority that caused such damage.”
Article 29
(Legal Guarantees in Criminal Proceedings)
“Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights:
...
the right to present all evidence to his benefit; ...”
Article 37
(Protection of the Privacy of Correspondence and Other Means of Communication)
“The privacy of correspondence and other means of communication shall be guaranteed. Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where this is necessary for the institution or conduct of criminal proceedings or for reasons of national security.”
B. Criminal Procedure Act
33. Section 18 of the Criminal Procedure Act (Official Gazette no. 8/06), as applicable at the material time, provided:
“(1)  The right of a court and the State bodies who participate in criminal proceedings to establish whether a certain fact is established or not is not bound or constrained by any formal rules of evidence. (2)  [Such a] court should not base its judgment on evidence obtained in violation of the human rights and fundamental freedoms guaranteed by the Constitution, or on evidence obtained in violation of the criminal-procedure rules which pursuant to this law could not be relied on by a court, or obtained on the basis of such impermissible evidence.”
34. A judgment based on inadmissible evidence could be challenged on appeal on the grounds of a substantial violation of provisions of the criminal procedure. In this connection, Section 371 of the CPA provides as follows:
“(1)  A substantial violation of the provisions of criminal procedure shall be deemed to exist:
... (8)  if the judgment relies on evidence which was obtained by a violation of human rights and fundamental freedoms guaranteed by the Constitution, or evidence that it should not have relied on, in accordance with the provisions of the present Act, or evidence which was obtained on the basis of such impermissible evidence; ...”
35. Moreover, Section 149b, in the chapter regulating measures to be taken by the police during a preliminary inquiry, provides:
“(1)  If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed, is being committed or is being prepared or organised, and information on communications using electronic communications networks needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the investigating judge may, at the request of the state prosecutor adducing reasonable grounds, order the operator of the electronic communications network to furnish him with information on the participants and the circumstances and facts of electronic communications, such as: the number or other form of identification of users of electronic communications services; the type, date, time and duration of the call or other form of electronic communications service; the quantity of data transmitted; and the place where the electronic communications service was performed. (2)  The request and order must be in written form and must contain information that allows the means of electronic communication to be identified, an indication of reasonable grounds, the time period for which the information is required and other important circumstances that dictate use of the measure. (3)  If there are grounds for suspecting that a criminal offence for which the perpetrator [thereof] is prosecuted ex officio has been committed or is being prepared, and that information on the owner or user of a certain means of electronic communication whose details are not available in the relevant directory (as well as information on the time that the means of communication was or is in use) needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, then the police may request that the operator of the electronic communications network furnish them with this information, at their written request and even without the consent of the individual to whom the information refers. (4)  The operator of electronic communications networks may not disclose to its clients or a third party the fact that it has given certain information to an investigating judge (see the first paragraph of this section) or the police (see the preceding paragraph), or that it intends to do so.”
C. Civil Code
36. The Civil Code (Official Gazette, no. 83/2001 with amendments) contains detailed provisions concerning civil claim for non-pecuniary damage for, inter alia, violation of personal rights. Its sections 148 and 179 read, in so far as relevant, as follows:
Section 148
“(1)  A legal entity is liable for damage caused to a third person by its body in relation to the performance of its duties. ...”
Section 179
“(1)  For physical pain endured, for psychological anguish resulting from ... the infringement of personal freedom or personal rights ... the injured party may, if it is established that the circumstances of a case (and in particular the degree of pain and fear and the duration thereof) justify it, be awarded just monetary compensation, irrespective of any compensation for material damage, and even if there is no material damage. (2)  The amount of compensation for non-pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation; it should, however, not nurture aspirations that are not consistent with its nature and objective.”
D. Constitutional Court Act
37. Section 55b, paragraph 2, of the Constitutional Court Act (Official Gazette no.

Outcome for Article 6: no_violation