Communicated on 12 February 2014
FIRST SECTION
Application no. 1784/11
Amit AZIZI
against the former Yugoslav Republic of Macedonia
lodged on 23 December 2010
STATEMENT OF FACTS
The applicant, Mr Amit Azizi, is a Macedonian national who was born in 1963 and lives in Tuin, Kičevo. He is represented before the Court by Mr A. Godžo and Mr D. Godžo, lawyers practising in Ohrid.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Criminal proceedings against the applicant
On 7 October 2008 the Kičevo Court of First Instance found the applicant guilty of possession of weapons and ammunition (недозволено држење на оружје) and of three offences of aggravated theft. It sentenced him to four years' imprisonment. Both the applicant, who had legal representation, and the public prosecutor appealed against the judgment. The applicant did not ask to be notified of the date of the session (седница) of the Gostivar Court of Appeal. On 16 June 2009 the prosecutor from the Higher Public Prosecutor's Office (Јавен обвинител во Вишото јавно обвинителство, “the Higher Public Prosecutor”) filed written submissions in which he requested that the applicant's appeal be dismissed and the lower prosecutor's appeal upheld.
On 30 September 2009, at a private session held in the absence of the applicant, the Gostivar Court of Appeal dismissed the applicant's appeal, upheld the public prosecutor's appeal and increased the sentence to six years' imprisonment. The Higher Public Prosecutor attended the private session. In the judgment, the court referred to the prosecutor's submissions of 16 June 2009.
On 29 June 2010 the Supreme Court dismissed the applicant's request for extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда). In its judgment it referred to the State Public Prosecutor's written submissions of 18 June 2010 which had been filed in reply to the applicant's request.
B. Relevant domestic law
The relevant provisions of the Criminal Proceedings Act (“the Act”) (Закон за кривична постапка), as in force at the time, concerning the attendance of parties at sessions before the Court of Appeal are described in the Atanasov case (see Atanasov v. the former Yugoslav Republic of Macedonia, no. 22745/06, §§ 12 and 13, 17 February 2011).
Section 361 § 2 of the Act provided that the competent public prosecutor could submit a written proposal concerning the appeals against the trial court's judgment or announce that he or she would make oral submissions at the session of the Court of Appeal.
Under Section 413 § 1, a request for extraordinary review could be submitted where there was: a violation of specific provisions of the Criminal Code to the detriment of the accused; a violation of specific provisions of the Criminal Proceedings Act and a violation of the rights of defence of the convicted person by the trial court; or an infringement of the procedural rules in the appeal proceedings if relevant to the adoption of a just decision.
Under Section 414 § 4, the Supreme Court served a copy of the request for extraordinary review on the competent prosecutor, who had fifteen days from the date of service of the request within which to submit a reply.
COMPLAINTS
The applicant complains under Article 6 of the Convention that there was no adversarial hearing and alleges a violation of the principle of equality of arms in the proceedings before the Court of Appeal and the Supreme Court.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the request for extraordinary review of a final judgment an effective remedy for the purposes of this provision in respect of the applicant's complaints concerning the proceedings before the Court of Appeal? The Government are invited to provide copies of relevant (court) decisions regarding the effectiveness of this remedy with respect to the applicant's complaints.
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of equality of arms and adversarial hearing respected as regards the presence of the Higher Public Prosecutor (vis-à-vis the applicant's absence) at the session of the Court of Appeal and the alleged lack of communication to the applicant of the submissions of the Higher and State Public Prosecutor before the Court of Appeal and the Supreme Court respectively?
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