Challenged act: Resolution of the Superior Court of Ljubljana, no. Kp 145/96, of Feb. 7, 1996.

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1 Case number: Up-47/96 ECLI: ECLI:SI:USRS:1996:Up Challenged act: Resolution of the Superior Court of Ljubljana, no. Kp 145/96, of Feb. 7, Resolution of the District Court of Kranj, no. K 5/96, of Feb. 2, Operative provisions: 1. The resolution of the Superior Court of Ljubljana and the resolution of the District Court of Kranj shall be abrogated. 2. The case shall be returned for the retrial to the District Court of Kranj, which shall reach its decision in 24 hours. Abstract: The weight of the criminal offence, although murder is supposedly concerned, and the complainant's addiction to alcohol are still not sufficient basis for concluding that preventive detention is necessary for fear that the offence might be repeated. Thesaurus: Abrogation of a court decision and sending a case back to the competent authority for the retrial. Detention for fear of relapse into a crime. Criminal offence of murder. Ordaining the execution of a decision of the Constitutional Court. Legal basis: Constitution, Article 20. Criminal Proceedings Act (ZKP), Article 201, Paragraph 2, Item 3. Penal Code (KZ), Article 127. Constitutional Court Act (ZUstS), Article 40, Paragraph 1 of Article 59. Cases joined: In stating the reasons for this Decision the Constitutional Court makes reference to its decisions Up- 57/95, Up-74/95, Up- 75/95, Up-123/95). PDF Format: Up-47-96_English.pdf Full text: Up-47/96 Mar. 21, 1996 D E C I S I O N

2 In the process of deciding the constitutional complaint of H.G.O. from G., at the moment kept in detention, represented by M.L., a lawyer in K., the Constitutional Court at its session of March 21, 1996 d e c i d e d: 1. The resolution of the Superior Court of Ljubljana no. Kp 145/96 of Feb. 7, 1996 and the resolution of the District Court of Kranj no. K 5/96 of Feb. 2, 1996 shall be abrogated. 2. The case shall be returned for the retrial to the District Court of Kranj, which shall reach its decision in 24 hours. R e a s o n s: A. 1. On Feb. 23, 1996, the complainant filed a constitutional complaint against the resolution by which the Superior Court of Ljubljana dismissed her appeal against the resolution of the District Court of Kranj on extending her detention. The complainant considers that the danger of relapse into a crime as the reason for detention no longer exists and proposes to be released from detention. In her constitutional complaint she asserts that her constitutional right to personal liberty has been violated. Her other major claims are: - At the time when she supposedly committed the crime she was under the influence of alcohol and medicaments, and her capacity of mental apprehension and control was severely hampered (based on the expert opinion of psychiatrist dr.l); such finding was also confirmed by expert dr. B.Š. during the trial Jan. 31, Light was only shed on the circumstances relating to the tragic event and the mental condition of the complainant on the occasion of the trial; the state prosecutor and the panel which decided the case agreed that substantially reduced mental capacity was due to the simultaneous effect of alcohol and medicaments. - Now, when she is aware of the effect of the medicine "Phemiton" and when it is no longer necessary for her to take it, because it has been established that she does not suffer from epilepsy, the concurrent taking of the medicine and drinking of alcohol can no longer occur, and there is no danger that she might repeat the criminal offence. - Her treatment for alcoholism in 1987 was successful, and she was also a conscientious worker as a nurse; it was only in the second half of 1995 that, due to alienation on the part of her husband and his relation with another woman, she took to heavier drinking again. - Being in detention, she cannot perform her maternal obligations, and her two children, aged 8 and 11, are for this reason very much affected. 2. The District Court of Kranj in the trial of Feb. 2, 1996 with its resolution K 5/96 decided that the complainant should continue to be detained for the danger of relapse into a crime under Item 3 of Paragraph 2 of Article 201 of the ZKP. From the said resolution it is evident that at the trial the court found the complainant guilty of murder under Paragraph 1 of Article 127 in connection with Paragraph

3 2 of Article 16 of the KZ, and sentenced her to 5 years and 6 months imprisonment. As circumstances which supposedly justified the conclusion of the existence of danger of relapsing into crime the court took into consideration that she had committed one of the most heinous crimes, and the personality of the complainant - her addiction to alcohol. 3. The court finds that for nearly a decade the complainant has been addicted to alcohol and that her addiction to alcohol was the reasons for disharmony between her and her late husband. As a circumstance that showed the complainant's addiction to alcohol, the court also took into consideration that, at the time of committing the crime, she was intoxicated and that she caused a traffic accident on Oct. 7, In her blood she had 2.15 per mille of alcohol. In the opinion of the court, the complainant, being a person to whom the field of medicine is not unknown, should be aware of the detrimental effect of the medicine "Phemiton" in combination with alcohol. On the basis of the foregoing circumstances the court concludes that the complainant is an unstable personality, who should, "for her personality features and unpredictability such as had been observed already from her first treatment onwards, be considered to be a person liable to relapse into the crimes directed against life and body." 4. The Superior Court of Ljubljana with its disputed resolution dismissed the complainant's appeal against the above mentioned resolution on extension of detention as unjustified. The appellate court confirmed the opinion of the court of the first instance, that the complainant has "a personality which is unstable to such a degree that she should be deemed to be liable of relapsing into a crime, also a such that is directed against life and body". The court considered that the information accumulated, to which reference was made by the court of the first instance, showed clearly enough that the complainant was "an unsteady personality prone to alcoholism, which is why she is rather unstable." 5. The constitutional complaint was sent to the Superior Court in Ljubljana, which did not reply to it. For purpose of examination the court submitted to the Constitutional Court the dossier no. K 5/96. B. 6. At the session of the panel of Mar. 12, 1996, the Constitutional Court decided to consider the complaint. 7. The Constitutional Court examined the dossier of the District Court of Kranj no. K 5/ The Constitution in Paragraph 1 of Article 20 provides that a person, reasonably believed to have committed a criminal offence, may be arrested, but only by an order of a court and only where such an arrest is absolutely unavoidable for the proper course of the criminal proceedings or for the protection of society. 9. The Criminal Proceedings Act (Official Gazette of the RS, No. 63/94 and 70/94, hereinafter: ZKP) in Item 3 of Paragraph 2 of Article 201 prescribes that detention may only be ordered in the case when special circumstances give grounds for apprehension that the criminal offence will be repeated, that an attempted criminal offence will be finished, or that a threatened criminal offence will be committed. In its past decisions by which it decided on constitutional complaints relating to detention (Up- 57/95, Up-74/95, Up-75/95, Up-123/95), the Constitutional Court has defined certain criteria according to which it is admissible, in line with constitutional provisions and provisions of the ZKP, to give orders for detention on the grounds that the danger of relapse into a crime exists. In the said decisions, the Constitutional Court took a general position, that a court must establish the concrete circumstances from which it is possible to draw a specific conclusion based on life experience that a

4 real danger in fact exists (not just fear) that it is precisely the accused who might repeat a specific criminal offence. It especially pointed out that in determining whether real danger of relapse into a crime exists a court must take into consideration not only the degree of the crime and the circumstances relating to it, but also the personality of the accused, the environment and the conditions in which he or she lives, as well as his or her past history. 10. The detention justified by the danger of relapsing into a crime is admissible when absolutely unavoidable for the protection of society. Absolute necessity for the protection of society, however, can only be inferred from the danger arising from the circumstances relating to a crime committed already. On the basis of the judgement, which has not become final yet, the complainant was found guilty of the murder under Paragraph 1 of Article 127 of the KZ, which she supposedly committed in the state of substantially reduced mental capacity. She was sentenced to 5 years and 6 month imprisonment. In the case of the complainant, then, there is a high degree of probability that she committed murder, and the danger of relapse can only be inferred from the circumstances relating to the committal of the said crime. The complainant can only be a source of such dancer for the society that is in a reasonable causal connection with the committal of the crime, in reference with which the criminal proceedings are being conducted against her. The weight of the criminal offence, although murder is supposedly concerned, is still not sufficient basis for concluding that the preventive detention is necessary for fear that the offence might be repeated by the accused. 11. In addition to the degree of a crime committed, the two courts in determining the danger of relapse into a crime took into consideration just one of the circumstances, which is causally linked with the committed crime, that is, the complainant's addition to alcohol, without in any other way evaluating also other circumstances attending to the committal of the crime. As it is evident from the reasoning of the judgement of the first instance court, the disputed resolution and psychiatrists' opinion, numerous and profound clashes existed between the complainant and her husband, and these persisted over a period of several years. Nowhere, however, is it apparent that the complainant's addiction to alcohol was the sole reason for such quarrels. In the expert opinion of a psychiatrist, the basic reason for the complainant's tragic act was unharmonious marriage. Her addiction to alcohol further complicated her matrimonial situation. Just on the basis of finding the complainant addicted to alcohol, however, it is impossible to reasonably infer the existence of real danger that, once free, the complainant could again commit a criminal offence directed against life or body. The complainant has never been sentenced for committing a criminal offence against life or body. Also, the dossier does not contain any information that she had ever threatened to kill or cause to anybody bodily harm. The criminal offence concerned resulted from a combination of numerous circumstances of specific nature. The general claim, that in the case of the complainant there is the danger that she might relapse into a crime directed against human life of body, and ordering the prolongation of the detention based on such conclusion, is inconsistent with Paragraph 1 of Article 20 of the Constitution. From the circumstances attending the crime committed, from the personality of the accused and from her past history, real danger based on life experience must follow of relapse into an identical or other crime against which the protection is provided under the criminal law and by the statute. 12. The Constitutional Court for this reason considers that in the resolutions referred to in the holding hereof the two courts in connection with the prolongation of detention of the complainant failed to take into consideration the constitutional and statutory provisions, as well as the positions adopted by the Constitutional Court in its decisions cited in section 9 of the reasons for this decision, by which it had decided on the matter of detention. This is why it abrogated the two resolutions and returned the to the competent court, which will in the retrial have to take into account the reasons for this decision. On the basis of authorization under Paragraph 2 of Article 40 of the Constitutional Court Act (Official

5 Gazette of the RS, No. 15/94, hereinafter: ZUstS), the Constitutional Court ordained that a decision in teh retrial on detention of the complainant be reached in 24 hours. C. 13. This decision was made on the basis of Paragraph 1 of Article 59 of the ZUstS by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the Judges. The decision was reached with eight votes in its favour and one against it. Vote against was cast by Judge Jerovšek. President of the Constitutional Court: Dr. Tone Jerovšek Type of procedure: ustavna pritožba Type of act: drugi akti Applicant: Date of application: Date of Decision: Type of decision adopted: odločba Outcome of proceedings: razveljavitev ali odprava Published: OdlUS V, 63 Document: AN01114