Communicated on 13 July 2017
FIRST SECTION
Applications nos 71034/13 and 73778/13
Ljube BOŠKOSKI against the former Yugoslav Republic of Macedonia
lodged on 8 November 2013 and 16 November 2013 respectively
STATEMENT OF FACTS
The applicant in both cases, Mr Ljube Boškoski, is a Macedonian and Croatian national, who was born in 1960 and lives in Skopje. He is represented before the Court by the “Helsinki Committee for Human Rights of the Republic of Macedonia”, and by Mr D. Godžo and Mr A. Godžo, lawyers practising in Ohrid.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is chairman of the political party “United for Macedonia” (Обединети за Македонија), which participated in the 2011 parliamentary elections in the respondent State.
1. Events of 6 June 2011
On 6 June 2011, the day after the elections, the applicant was arrested on suspicion of abuse of office and breach of the rules on funding an electoral campaign. He was brought before an investigating judge (Judge M.K.). In the presence of a lawyer of his own choosing, the applicant remained silent. Judge M.K. opened an investigation and remanded the applicant in custody. The applicant remained in detention during the entire proceedings.
In a separate decision, Judge M.K. decided that a witness would be examined under a special arrangement for protected witnesses whereby his identity and face would be concealed. He was to produce evidence under the pseudonym “3-1” with the use of a special streaming device which would distort his voice and face.
The relevant part of the decision reads as follows:
“... having regard to the nature and gravity of the crimes subject to investigation and in respect of which the witness should produce evidence; the manner in which they were committed and the level of risk, the investigating judge considers that the conditions for special examination of a witness are fulfilled ...”
The applicant, who was served with the decision, did not appeal against it, notwithstanding the explicit legal instruction in this respect.
The investigation concerned allegations that the applicant had received, on three occasions (in a house in Skopje and in two different restaurants), 10,000 euros (EUR), EUR 20,000 and EUR 100,000 respectively, from the protected witness, a foreign national, to finance the electoral campaign of his political party. This constituted the offences of abuse of office and breach of the rules on funding an electoral campaign, as defined in Articles 353 and 165-a of the Criminal Code.
The protected witness, “3-1”, gave a statement before Judge M.K. The applicant did not produce a copy of the court record of that statement.
2. Criminal proceedings against the applicant
Proceedings before the Skopje Court of First Instance (“the trial court”)
On 25 July 2011 the public prosecutor indicted the applicant on charges of abuse of office and breach of the rules on funding an electoral campaign. The applicant was accused, as chairman of the political party and organiser of the electoral campaign, of breaching the applicable rules on financing of political parties and electoral campaigns, namely “relying on his long acquaintance with the protected witness”, he had received from him, on the above dates, funds in foreign currency to finance his political party. The indictment relied on the statement given by the protected witness before the investigating judge; audio and video material of the critical meetings between the applicant and the protected witness when money had changed hands; a statement given by a competent person within the applicant’s political party; and search records, fingerprint expert reports and other material evidence. An objection to the indictment lodged by the applicant was to no avail.
The applicant’s case was heard by a five-judge panel of the trial court presided by Judge R.V. At the trial, the applicant was represented by four lawyers of his own choosing.
At hearings held on 20 and 25 October 2011 in the presence of the applicant and his representatives, the trial court examined video and audio recordings of the three meetings between the applicant and the protected witness (whose face was concealed) when money had changed hands. It also admitted in evidence the orders of Judge M.K. for the use of special investigative measures. The applicant was allowed to inspect the orders, but he was not allowed to have a copy since “although no longer classified, they were only for judicial use”. The applicant also unsuccessfully requested that the trial court set aside the decision of Judge M.K. conferring on 3-1 the status of a protected witness. The trial court read the statement of the protected witness given before Judge M.K. The public was excluded from those hearings.
At a hearing held on 15 November 2011, from which the public was also excluded, the trial court heard 3-1 after rejecting an objection lodged by the applicant to his being regarded as a protected witness. Judge R.V., the president of the bench, established the witness’s identity and found that “the risk to (his) life, health and physical integrity” still persisted. The protected witness was placed in a special room that was physically separated from the courtroom in which the bench (including Judge R.V.), as well as the applicant and his representatives, were present. The examination of the witness was followed via a streaming device which distorted the witness’s face (the screen was pixelated and was half black and half white) and voice. In reply to questions put by the defence, the witness confirmed that he had known the applicant for years and that the money had been intended to finance the electoral campaign. He stated that the meetings with the applicant had been previously arranged, but he “did not remember” who had chosen the meeting places. The witness stated that he still considered the applicant to be his friend. He replied to a number of questions with “I don’t know” and “I have the right not to reply to this question”. The trial court did not allow the defence to put several questions, including whether the applicant, his wife or any other close member of the applicant’s family had ever threatened the witness and whether he had known that the critical meetings with the applicant had been recorded.
On 29 November 2011 the trial court convicted the applicant as charged and sentenced him to seven years’ imprisonment. The judgment was based on considerable oral and material evidence. The court held that the audio and video recordings had been lawfully obtained; that that material had served the court to establish the place where money had changed hands, its amount and purpose, namely to finance the political campaign of the applicant’s political party; and that the protected witness had confirmed that the money had been given for the political campaign of the applicant’s party.
The applicant appealed against the judgment, arguing that, inter alia, he had not been allowed to obtain copies of the court orders for the use of special investigative measures (secret surveillance), which had no longer been classified; that 3-1 should not have been regarded a protected witness given that he was a friend of the applicant, the latter knew his identity and home address, and the witness had never been threatened either by the applicant or anyone else. In this connection, he argued that the trial court had not explained why it had considered that there had been a risk to the witness’s life and health. Furthermore, the screen showing the witness had been completely dark and the applicant could not see whether he had been alone in the room or whether there had been other people instructing him how to reply to the questions. Lastly, only Judge R.V. had established the witness’s identity before the examination had started, and not the entire judicial panel, and the trial court had not provided any reasons for excluding the public from part of the trial.
The higher public prosecutor submitted observations urging the Court of Appeal to dismiss the applicant’s appeal.
At a public hearing held on 23 April 2012, the Skopje Court of Appeal partly accepted the applicant’s appeal and reduced the sentence to five years’ imprisonment. It upheld the remainder of the judgment. The court held that the applicant had been allowed to inspect the relevant court orders, and the fact that he had not been permitted to obtain a copy of them did not violate his defence rights. Notwithstanding that the orders had no longer been regarded “State secret”, the Minister of the Interior had classified them as being “for restricted use”, namely for judicial purposes only. It further held that the trial court had given sufficient reasons for excluding the public from the part of the trial regarding the evidence obtained with the use of special investigative measures and from the protected witness. That decision had not violated the principle that the proceedings be public or Article 6 of the Convention. The appellate court also agreed with the findings of the trial court that 3-1 should be regarded as a protected witness. In this connection, it stated that “the risk is a personal feeling of the person concerned, and this witness felt that his life and physical integrity were seriously endangered, given the importance of his statement”.
The applicant challenged those judgments before the Supreme Court, raising the same complaints as those mentioned in his appeal. He further complained that he had not been provided with a copy of the written observations of the higher public prosecutor submitted in reply to his appeal.
The State public prosecutor submitted observations in reply, urging the Supreme Court to dismiss the applicant’s appeal.
By a judgment of 19 July 2012 the Supreme Court dismissed the applicant’s request for an extraordinary review of the final judgment and upheld the lower courts’ judgments. It held that the applicant had been convicted after the lower courts had correctly assessed all the material and oral evidence and had established the relevant facts. The court reiterated that all of the evidence against the applicant had been lawfully obtained. The protected witness had been examined in accordance with the law, and the use of a streaming device that distorted the witness’s face and voice was an established practice in other States. In this connection, the court stated that it “takes care of how the evidence is adduced and it ensures that it has been carried out in a lawful manner.” It added that the fact that the public had been excluded from the part of the trial concerning evidence obtained with the use of special investigative measures and from the protected witness did not violate the principle that the proceedings be public. The inability of the defence to obtain a copy of the court orders for the use of special investigative measures did not violate the principle of equality of arms. That had happened because those orders had been (classified) “for restricted use”, namely for the court proceedings. In any event, the applicant had been allowed to inspect the orders and acquaint himself with their contents. Accordingly, the fact that he had not obtained a copy had neither had any bearing on his defence rights nor had it put him in a disadvantageous position vis-à-vis the prosecutor. Similarly, notwithstanding that the observations submitted by the higher public prosecutor had not been served on the applicant, the latter had acquainted himself with their contents. Furthermore, those observations had not been binding for the Court of Appeal.
The impugned proceedings attracted huge media attention and the trial was followed by representatives of human-rights and other international organisations, as well as foreign embassies in the respondent State.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the proceedings were unfair, namely that the exclusion of the public from part of the trial was unlawful and unjustified; that he was denied the right effectively to participate in the proceedings (regarding the examination of the protected witness whose evidence was decisive for his conviction); and that the proceedings were not adversarial, contrary to the principle of equality of arms. In that connection, he referred in particular to the fact that the written observations of the higher public prosecutor and the State public prosecutor had not been communicated to him.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention? In particular,
- was the applicant able to examine the protected witness in a manner which did not restrict his defence rights to an extent incompatible with the guarantees of Article 6 of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011)?
- was the applicant denied the right to an adversarial trial in the proceedings that preceded the judgments of 23 April 2012 (Skopje Court of Appeal) and 19 July 2012 (Supreme Court)? In other words, was he given the opportunity to have knowledge of the observations which the higher public prosecutor and the State prosecutor had submitted in reply to his appeal and to his request for an extraordinary review of the final judgment, respectively?
2. Was the exclusion of the public from the hearings held on 20 and 25 October and 15 November 2011 in the present case “strictly necessary”, within the meaning of Article 6 of the Convention?
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