FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23065/07
by Genci FEJZULLA and Jonuz MAZREKU
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 31 May 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,

and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 18 April 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to a letter submitted by the Italian Government on 12 July 2010 indicating that they did not wish to exercise their right to intervene in the proceedings in respect of the first applicant (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court),

Having regard to the fact that the Albanian Government, having been duly informed, did not exercise their right to intervene in the proceedings in respect of the applicants,

Having regard to the fact that, on 1 February 2011, the Court changed the composition of its Sections (Rule 25 § 1) and this case was assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Genci Fejzulla (“the first applicant”) and Mr Jonuz Mazreku (“the second applicant”), are Albanian nationals who were born in 1970 and 1953, respectively and they live in Fier, Albania. The first applicant, who is the second applicant’s nephew, also has Italian citizenship. They are represented before the Court by Mr M. Vujik and Mr E. Milanov, lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 13 January 2005 the public prosecutor filed an indictment with the Skopje Court of First Instance (“the trial court”) charging the applicants and Mr R.A., Mr I.N. and Mr P.G. with drug trafficking. According to the indictment, on 12 December 2004 the first applicant and Mr R.A. had bought 18.95 kg of heroin from a certain Mr Dz.N. in Istanbul, Turkey. After the drugs had entered the respondent State, they had been handed over to Mr R.A. so that he could take them to Albania. On 19 December 2004 the applicants, together with Mr R.A., had arrived at a car park near the Skopje Fortress. Mr I.N. and Mr P.G. had also arrived and had loaded the drugs into Mr P.G.’s truck. Seventeen cakes of heroin had been stored in the spare tyre and twenty-one cakes had been put in a special compartment in the front of the truck. The charges were based, inter alia, on an expert opinion of 20 December 2004, three search reports, seven certificates for temporarily seized objects, and a list of passengers (“the list”) indicating the names of the first applicant and Mr R.A. as having travelled in a bus from Istanbul to Skopje on 13 and 14 December 2004. The list had been sent by border police on 20 December 2004 to the Ministry of the Interior (“the Ministry”), as was the case with a special report, no.10.2.3-5305 of 20 December 2004, produced by the Ministry. According to the latter, on 19 December 2004 the Ministry had requested (request no.20.4-21558), and the public prosecutor had ordered, an audio-visual recording of the car park. The recording had been made on that date between 11 a.m. and 3.55 p.m. Two digital video cameras and one digital photo camera had been used.

In the proceedings before the Court, the Government submitted a copy of the Ministry’s request no.20.4-21558 of 19 December 2004, according to which the Ministry had requested that the public prosecutor authorise the audio-visual surveillance because it believed that a significant quantity of heroin was to be trafficked and prepared for transportation outside the respondent State. For that purpose, unidentified persons had been expected to arrive at the car park in a vehicle with Albanian car plates and meet with other unidentified persons. They also submitted another report by the Ministry dated 20 December 2004 (report no.10.9-01/350), according to which the total duration of the video of the car park recorded with both cameras was sixty-two minutes and thirty-three seconds. This report was admitted in evidence in the domestic proceedings. They also submitted a copy of the search report of the truck dated 19 December 2004. That search had been ordered by an investigating judge and had been attended by Mr P.G. and two witnesses.

At a hearing on 4 March 2005, the first applicant stated that he had not met Mr R.A. in Istanbul, as alleged by the prosecution, but rather on the bus while travelling to the respondent State. He had never met him before then. On that occasion, they had discussed the possibility of trading coffee machines. For that reason, he had gone to Skopje with the second applicant, who was a taxi driver. He had not told the second applicant the reason for, or the duration, of his stay in Skopje.

The second applicant stated that he had gone to Skopje at the request of the first applicant so that the first applicant could discuss business matters with a third person. The first applicant had told him that their stay would be short, a day or two. He denied that he had known Mr I.N. and Mr P.G.

Mr P.G. stated that he had not known, and had never seen, the applicants before.

On 18 March 2005 the trial court found the defendants guilty and sentenced them to a prison term. The second applicant received the shortest sentence (five years’ imprisonment). All the other defendants, including the first applicant, were sentenced to eight years’ imprisonment. An expulsion order of indefinite duration (казна протерување засекогаш) was also issued against the applicants. Mr R.A. and Mr I.N. were convicted in absentia because they had escaped from the car park and had not been found since. The applicants had had no prior criminal records in the respondent State.

The trial court found that the defendants had acted in concert, as described in the indictment. It established that on 13 December 2004 the first applicant and Mr R.A., having bought the heroin from Dz.N., had arrived in the respondent State on a bus from Istanbul. The list supported that finding. The first applicant had continued on to Albania. On 17 December 2004 the applicants had arrived in Skopje. During their stay, they had met up with Mr R.A. and Mr I.N. several times. Mr P.G. had arrived in Skopje with his truck. On 19 December 2004 he had met up with Mr I.N. at a previously determined place. As already agreed upon, all the defendants met at the car park near the Skopje Fortress, where Mr I.N. and Mr P.G. had loaded the drugs into the latter’s truck, as described above. After Mr P.G. had left the scene, the remaining defendants had embraced each other and had left, satisfied with the job done. The applicants’ car had been stopped by police upon leaving the city. These facts were established, inter alia, on the basis of a VHS tape of the video recording of the car park on 19 December 2004. In the proceedings before the Court, the applicants submitted a copy of the VHS tape used in court. The total length of the video material recorded on the car park was sixty-three minutes and twenty seconds.

The trial court rejected the applicants’ denial that they had been involved in the crime. It further rejected their arguments that a purely visual recording without sound could not be relied upon to establish the facts: the court explained that it had been impracticable to obtain an audio recording.

The applicants appealed against this decision, arguing that, inter alia, there had been no evidence supporting the trial court’s opinion that the first applicant had bought the heroin in Turkey and that the defendants had acted in concert. They stated that the visual recording, as the only evidence on which their conviction rested, had been incomplete and inaccurate. They further reiterated that there had been no audio recording, as required under section 142-b § 1 (3) of the Criminal Proceedings Act, which consequently made the recording inadmissible.

At a public session held on 4 July 2005, the Skopje Court of Appeal allowed the applicants’ appeal and quashed the trial court’s decision, which it found to have been inconsistent and unreasoned. It also held that the video material had not been properly admitted in evidence.

At the new trial, the applicants reiterated their objections concerning the credibility and probative value of the video material recorded on the VHS tape. In this connection, they argued that there had been time gaps and interruptions in the video and requested that the trial court admits the original video material in evidence. The court refused this request and said that there was no doubt that the video material recorded on the VHS tape was identical to the original video material recorded by the digital cameras. The applicants further argued that the recording had been unlawful because it had been authorised by the public prosecutor, instead of by an investigating judge, on the basis that the Ministry had known the identity of the possible perpetrators (see section 142-d § 3 of the Criminal Proceedings Act). In this connection the court allowed the applicants’ request and admitted the public prosecutor’s order for the audio-visual recording of the car park (order KON.br.5530/04). According to the order, the recording would last twenty-four hours and be stopped should the identities of the suspects be discovered. The court, however, refused to admit the Ministr