BAJIĆ v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Communicated on 19 September 2017

FIRST SECTION

Application no. 2833/13
Branko BAJIĆ
against the former Yugoslav Republic of Macedonia
lodged on 3 January 2013

STATEMENT OF FACTS

The applicant, Mr Branko Bajić, is a Serbian national who was born in 1951 and lives in Belgrade. He is represented before the Court by Mr Ch. Winterhoff and Mr G. Schwendinger, lawyers practising in Hamburg, Germany.

The circumstances of the case

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

1. Background to the case

The applicant was a shipbuilding engineer and an authorised inspector of German Lloyd (GL), a ship classification society which, under an agreement concluded in 2007 with the respondent Government, was authorised to verify whether vessels on Lake Ohrid were fit to navigate. The applicant was appointed the authorised GL surveyor who carried out inspections of boats on Lake Ohrid and issued certificates confirming their fitness to navigate. Ilinden (hereinafter “the boat”) was one of the vessels on Lake Ohrid that was subject to such an inspection.

On 5 September 2009 the boat capsized and sank, causing the death of fifteen Bulgarian tourists who were among the fifty-four passengers on board. The tragic incident attracted domestic and international attention.

2. Criminal proceedings against the captain of the boat and the applicant

On 6 September 2009 an investigating judge opened an investigation against the captain of the boat on account of a “serious crime against people’s safety and property by a means of transport”.

During the investigation, the applicant was examined as a witness by the investigating judge. On that occasion, he submitted in evidence two reports that he had drawn up on 7 September 2009 regarding 2008 and 2009 inspections of the boat. In those reports, inter alia, he had stated “the captain [was] informed that, while the boat is sailing, passengers [are] only allowed to stay in closed compartments below the upper deck”.

According to a court-commissioned report from the Faculty of Mechanical Engineering in Skopje, the accident had come about as a result of a part of the steering system breaking, which had caused a sudden change in the boat’s navigation direction and its inclination to the right. The boat had subsequently inclined to the left, where water had entered through a window which had been open. That inclination could have been caused by the panicked reaction of passengers on the open deck of the boat. The technical opinion limited the number of authorised passengers in the compartments below deck to thirty-five.

On 8 April 2010 a public prosecutor indicted both the captain and the applicant for the same offence, namely a “serious crime against people’s safety and property by a means of transport”. The applicant was accused of acting in bad faith in examining the boat in 2007, 2008 and 2009 and issuing certificates for those years without ordering the captain to 1) dismantle part of the superstructure (benches and a sunshade) mounted on the boat’s deck and 2) limit the number of authorised passengers to thirty-five instead of forty-three (the figure specified in the certificates). Those certificates stated that the boat “had been duly surveyed” and that “the condition of the hull, machinery and equipment was satisfactory”. They contained no other remark. The indictment relied on, inter alia, the applicant’s reports of 7 September 2009 (see above).

The applicant, who did not attend the trial, was represented by two local lawyers.

On 5 July 2011 the Ohrid Court of First Instance found both the captain and the applicant guilty as charged and sentenced them to a year’s imprisonment each (the most lenient sentence available for that offence). The court established that, according to the boat’s licence of 1989, it was registered to transport forty-three passengers who should only have been in the compartments below deck. That information had been valid at the time of the accident. During a technical check of the boat carried out by a local commission in 2003, the captain had been informed that the maximum number of authorised passengers on board was thirty-four (given some modifications made to the compartments below deck), and that they could not be transported on deck until the stability of the boat (given the superstructure) was verified. It further established that the applicant had examined the boat’s technical ability to sail in 2006 and had issued a certificate containing a note stating that “[passengers must only be transported] in compartments below deck. No transportation of passengers is allowed until the boat’s stability is verified”. Relying on the court-commissioned expert report (see above), the court held that two factors had been crucial in relation to the accident: the boat’s technical flaw, and the fact that it had been overloaded with passengers who had not been positioned in an appropriate area of the boat (most of them had been seated on the benches on deck, which had not been authorised as an area in which passengers could be transported). During the trial, the court heard oral evidence from an expert who had been involved in drawing up that report, who stated that nothing would have happened had the boat been carrying a weight corresponding to the weight of forty-three passengers, that is, eight passengers more than the authorised limit of thirty-five.

The captain’s guilt was based on the following: he had not kept the navigation system of the boat in good condition, notwithstanding his knowledge that this could have life-threatening consequences; he had failed to ensure that there was one more crew member with appropriate vocational training during the cruise in question; he had positioned the passengers on the benches on deck, contrary to the technical specifications of the boat, although he had known that such transportation would negatively affect the boat’s stability; he had transported fifty-four passengers during the cruise in question, notwithstanding the fact that he had known that only forty-three passengers were allowed on board (thirty-five passengers, given the modifications made); the passengers had not been properly seated during the cruise – most of them had been placed on the open deck despite the fact that the captain had known that they were only allowed to remain in the compartments below the deck.

The applicant was convicted of having carried out the boat’s inspections between 2007 and 2009 in bad faith. This was because he had failed to order the captain to remove part of the superstructure (benches and sunshade) on the boat and limit the authorised number of passengers to thirty-five. The court dismissed the applicant’s arguments that: there had been no negligence on his part in the performance of his duties as an authorised surveyor; the boat had been in good condition when he had issued the 2009 certificate, and any technical flaws after that date could not be attributed to him; he had not contributed to the accident in any way; and it had been the responsibility of the local port authority to control the number of passengers transported on boats. The court held that the applicant should have ordered the captain to remove part of the superstructure from the deck and should also have withheld the 2007, 2008 and 2009 certificates until he had complied with that order. His reports of 7 September 2009 confirmed that he had known about the relevant part of the superstructure. However, the ban on passengers being transported above deck contained in the reports had been self-serving. Furthermore, the applicant had not specified that the authorised number of passengers was thirty-five.

The applicant appealed against that judgment, arguing, inter alia, that the relevant part of the superstructure, which weighed 60 kg, had not in itself affected the stability of the boat; it was the fact that passengers had been seated on the benches during the journey in question. Accordingly, the reasoning in the impugned judgment was not proper, because the basis on which he had been found guilty (failing to order the removal of the benches) was not related to what had caused the boat to sink (the positioning of the passengers on the benches). It had not been the applicant’s responsibility to control how the benches placed on deck were used during journeys. The same argument applied to the other grounds on which the trial court had based his conviction, namely his failure to reduce the number of passengers allowed on board. The expert evidence admitted at trial (oral evidence from the expert) confirmed that the fact that there had been eight additional passengers on board had played no part in the accident. In any event, the number of authorised passengers indicated on the certificates (forty-three) corresponded to the number of passengers specified in the boat’s official records. Lastly, the applicant complained that the trial court had used and relied on his written reports of 7 September 2009 that he had produced in evidence while being examined as a witness.

On 28 February 2012 the Bitola Court of Appeal dismissed the applicant’s appeal, finding no grounds to depart from the established facts and the reasoning set out in the lower court’s judgment.

The applicant challenged that judgment before the Supreme Court, reiterating the arguments raised in his appeal. He further maintained that the captain had known that passengers could not be transported on deck. The boat’s 1989 registration licence, as well as the inspections of 2003 and 2006, specified that passengers (the maximum number being set at forty-three) could only be transported in the compartments below deck. Inspections of 2003 and 2006 had explicitly banned passengers being transported while on the deck benches. In the absence of any modifications to the boat, that ban had still been valid at the time of the accident. Moreover, there had been no statutory provision requiring the applicant to reiterate the ban specified in the 2006 certificate in the 2007, 2008 and 2009 certificates.

The applicant’s application was communicated to the State public prosecutor, who submitted written observations in reply, seeking for the Supreme Court to dismiss the application. According to the applicant, those observations were not forwarded to him.

On 5 June 2012 the Supreme Court, noting the public prosecutor’s written reply, dismissed the applicant’s application. It found that the applicant’s omissions identified by the lower courts signified that he had acted in bad faith in the performance of his duty – carrying out the technical check of the boat. That judgment was served on the applicant’s lawyers on 3 July 2012.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the reasons contained in the impugned judgments did not prove his guilt in respect of the crime of which he was convicted. He also alleges that the prosecutor’s observations submitted in reply to his application before the Supreme Court were not communicated to him. Lastly, he alleges that the use in evidence of the written reports of 7 September 2009, which he produced during his examination as a witness, violated the privilege against self-incrimination.

QUESTIONS TO THE PARTIES

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:

(a) did the impugned judgments contain sufficient reasons for the applicant’s criminal responsibility in respect of the offence of which he was convicted?

(b) was the applicant denied the right to an adversarial trial in the proceedings that preceded the Supreme Court’s judgment of 19 July 2012? In particular, was he given the opportunity to have knowledge of the observations which the State prosecutor had submitted in reply to his application for an extraordinary review of the final judgment?

(c) Did the use in evidence of the applicant’s written reports of 7 September 2009, on which reliance was placed at his trial, violate his privilege against self-incrimination under Article 6 of the Convention? The parties are invited to produce all relevant information about the applicant’s examination as a witness during the investigation against the captain.

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