FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 76965/01
by Hisham Ibrahim KARMO
against Bulgaria
The European Court of Human Rights (First Section), sitting on 9 February 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
andMrS. Nielsen, Section Registrar,
Having regard to the above application lodged on 16 August 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hisham Ibrahim Karmo, is a Syrian national who was born in 1969 and is serving a sentence of life imprisonment in Bulgaria.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The murder of the taxi driver
The applicant arrived in Bulgaria on 23 July 1993 with two Syrian acquaintances, Mr A. and Mr M. They rented an apartment together and started to look for work despite not having obtained residence or work permits. Soon thereafter, the applicant befriended another Syrian national, Mr H., who was married to a Bulgarian citizen.
On 6 October 1993 the applicant was at the apartment of Mr H. and was to stay overnight, but for unknown reasons decided to go to the apartment he was renting with his two acquaintances. He apparently took the keys to Mr H.’s car and several other items from the house and left.
In the early hours of 7 October 1993 a taxi driver was murdered and his car was stolen. He had been stabbed repeatedly and his body had been dumped in the street. The murder weapon, a knife, was found at the scene of the crime. Thereafter, a preliminary investigation was apparently opened.
When on the morning of 7 October 1993 Mr H. established that his car was missing he called the police who informed him that it had been crashed and abandoned after the driver had failed to stop at the order of a police patrol. The driver had run away on foot.
2. The investigation stage of the proceedings
Acting on a tip off from neighbours, the applicant was arrested by the police on the morning of 7 October 1993 in the vicinity of the apartment he was renting with his two acquaintances while he was cleaning the taxi of the victim from blood stains. He had also switched the registration plates of the vehicle with those of another car.
Later in the day, the applicant apparently gave a blood or urine sample, which showed that he had not consumed any alcohol nor had he taken any sleeping pills or other such substances. The applicant was also found to have several cuts.
Mr A. was questioned by investigators on 7 and 8 October 1993 and gave statements that the applicant had returned to their rented apartment covered in blood, had told them of the murder he had committed, had changed his clothes and had then left with the registration plates of another car which they had in the apartment. The applicant had also apparently informed him of his intention to clean the victim’s car, to drive it somewhere and to burn it. Mr A. left Bulgaria on 15 October 1993.
The applicant’s other acquaintance, Mr M., was questioned on 13 October 1993 and gave a similar statement to that of Mr A. He also left Bulgaria on 15 October 1993.
The Bulgarian wife of Mr H. was questioned on 20, 22 and 26 October 1993. On the last of those days, an experiment was conducted at which she identified the murder weapon as a knife which she had previously seen in the possession of the applicant. A similar experiment of the same day with Mr H. was inconclusive.
The victim’s son was questioned on 15 December 1993.
On an unknown date, the investigators commissioned a medical report of the victim and the applicant in order to ascertain their wounds and injuries and the manner of their infliction.
On an unspecified date, the preliminary investigation concluded and an indictment was entered against the applicant for the murder of the taxi driver and for having stolen the car and several items from Mr H.
3. The court stage of the proceedings
It is unclear how many hearings were conducted before the Sofia City Court. The only known hearing was conducted on 12 March 1996 at which several witnesses were questioned, including the Bulgarian wife of Mr H.
On an unspecified date the victim’s son joined the proceedings as a civil claimant.
The applicant was assisted by a lawyer and at least one interpreter at the court stage of the proceedings. He pleaded innocent and claimed that Mr H. had willingly given him the car, that on the way to his apartment the police had tried to stop him, but that he had evaded them because he had no identity documents or residence permit. After crashing the car of Mr H. he had fled and had then found the taxi driver already dead in his car, had removed the body from the vehicle and had simply taken the taxi in order to return to his apartment.
On 27 November 1995 the applicant’s lawyer petitioned the Sofia City Court to commission an expert’s report in order to determine the position of the victim’s body after the murder and how long it had remained in that position. The applicant also requested that the court summon his two Syrian acquaintances who had left the country on 15 October 1993. The court apparently declined the applicant’s requests.
By judgment of 12 March 1996 the Sofia City Court found the applicant guilty of premeditated murder with hooligan motives, committed with extreme viciousness and in a manner particularly cruel to the victim, as well as of the theft of the car, a razor, a watch and 550 Bulgarian levs from Mr H. The court imposed the death penalty as joint punishment for the offences and ordered the applicant to pay damages to the victim’s son.
In reaching its decision, the Sofia City Court relied, inter alia, on the results of the investigative experiments, the reports of the identification of the murder weapon, the crime scene inspection’ report, the testimonies of witnesses given before the court and the statements of Mr A. and Mr M. given before the investigators. In the course of the proceedings, the court also obtained several experts’ reports, such as physicochemical, chemical, ballistics, psychiatric and economic. It also relied on the conclusions of the medical examinations of the victim and the applicant.
The court examined in detail all of the applicant’s arguments and his claimed version of events and found them to be unsubstantiated and not to be supported by any of the other evidence in the case. On the contrary, based on its findings, the court concluded that the applicant had stolen the car and the other items from Mr H., had fled from the police when they tried to stop him, had for unknown reasons murdered the victim in his car by stabbing him viciously over eleven times, had dumped the body in the street and had then taken the taxi.
The applicant appealed against the judgment on 14 March 1996 arguing that the first-instance court had wrongly applied the law, that the facts were inconclusive and that the sentence was unjustified. Due to the alleged delay of the first-instance court in preparing the motives to its judgment, the applicant’s appeal was forwarded to the second-instance court more than a year later on 14 April 1997.
Subsequently, the applicant apparently submitted further arguments in support of his appeal, which were essentially the same as those currently before the Court.
It is unclear how many hearings were conducted before the Supreme Court of Cassation.
By judgment of 17 April 1998 the Supreme Court of Cassation upheld the first-instance court’s judgment but reduced the sentence to life imprisonment, because it found it to be more lenient for the applicant.
In reaching its decision, the Supreme Court of Cassation re-examined and reassessed all the evidence in the case before it. The court also addressed all the arguments of the applicant, which were essentially the same as those currently before the Court, and dismissed them as unsubstantiated. In respect of the inability to call the witnesses who had left the country, the court noted that the addresses they had given were either false or inaccurate and that the attempts to locate them had been unsuccessful, which made it impossible for the trial court to summon them for cross-examination.
The applicant appealed against the judgment, essentially repeating his arguments before the second-instance court.
By final judgment of 12 March 2001 the extended panel of the Supreme Court of Cassation dismissed the applicant’s appeal and upheld the lower-courts’ judgements. In reaching its decision, the Supreme Court of Cassation concurred with the findings and the assessments of the courts, found them to be supported by the evidence in the case and to be well reasoned. It also addressed the applicant’s arguments, which were essentially the same as those currently before the Court, and dismissed them as unsubstantiated and as not being supported by any of the other evidence in the case.
B. Relevant domestic law
1. The Criminal Code
The forms of penalty envisaged for aggravated murder under Article 116 of the Criminal Code, as in force in 1993, were fifteen to twenty years’ imprisonment or death. By amendment of 1995 the penalty of “life imprisonment” was introduced. In 1998 the death penalty was abolished.
2. The Judiciary Act (1994)
Section 105(2) provides that if a defendant does not speak Bulgarian, then the court must appoint him an interpreter, the expenses for which are borne by the courts.
COMPLAINTS
1. The applicant submitted several fairness complaints under Article 6 of the Convention: (a) that he was not able to mount an adequate defence because he was not provided with a translation of the indictment in a language that he could understand; (b) that the first-instance court refused to commission two experts’ reports in order to establish whether he could have committed the murder allegedly after having taken sleeping pills and also what the position of the body had been after the murder; (c) that the domestic courts had failed to consider the relevance of certain items found in the taxi, the ownership of which had never been determined; (d) that the first-instance court failed to call three witnesses who had given statements before the investigators pointing to his guilt and whose testimonies had only been read in court, thereby denying him the right to cross-examine them. The applicant submitted that the witnesses could have provided testimony in respect of whether he owned the murder weapon, whether he was prone to violence and in respect of his demeanour at the time; and, (e) that he was required to pay for the translation services provided to him by the domestic courts.
2. The applicant complained that the length of the criminal proceedings against him were excessive and therefore in contravention with Article 6 of the Convention.
3. The applicant complained under Article 7 of the Convention that the domestic courts imposed a sentence of life imprisonment on him, which was not provided for under national law at the time the offences were committed and considered that he should have been sentenced to not more than twenty years’ imprisonment.
THE LAW
A. Complaint under Article 6 of the Convention concerning the fairness of the criminal proceedings
The applicant raised several complaints that he was denied a fair trial, which the Court finds should be examined under Article 6 §§ 1 and 3 (a), (d) and (e) of the Convention, the relevant part of which provide as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...
....
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
1. Complaints regarding the admissibility and assessment of evidence and that the applicant was unable to cross-examine witnesses
As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under Article 6 §§ 1 and 3 (d) taken together (see, among many other authorities, A.M. v. Italy, no. 37019/97, § 23, ECHR 1999-IX; and Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, p. 711, § 49).
The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see Laukkanen and Manninen v. Finland, no. 50230/99, § 33, 3 February 2004; Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 46; Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, p. 31, § 68). More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system; it “does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as is indicated by the words ‘under the same conditions’, is a full ‘equality of arms’ in the matter”. The concept of “equality of arms” does not, however, exhaust the content of paragraph 3 (d) of Article 6, nor that of paragraph 1 of which this phrase represents one application among many others (see, among other authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33, Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89; and Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001‑X).
The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, A.M. v. Italy, cited above, § 24; Van Mechelen and Others, cited above, p. 711, § 50; Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 67; Solakov v. the former Yugoslav Republic of Macedonia, cited above, § 57; and, mutatis mutandis, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43; Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, p. 20, § 41; and Unterpertinger v. Austria, judgment of 24 November 1986, Series A no. 110, p. 14, § 31). In particular, the rights of the defence are restricted to an extent that is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see Van Mechelen and Others, cited above, p. 712, § 55; and Solakov, cited above, § 57).
Turning to the specifics of the present case, the Court observes that the domestic courts based their findings of guilt on the testimonies of witnesses given before the court and the statements of Mr A. and Mr M. given before the investigators, the results of the investigative experiments, the reports of the identification of the murder weapon, the crime scene inspection’ report, several experts’ reports (such as physicochemical, chemical, ballistics, psychiatric and economic) and on the conclusions of the medical examinations of the victim and the applicant. The factual and legal basis for the courts’ judgments are set out in detail as is the reasoning on which the courts relied when making their findings that the applicant had committed the offences for which he was found guilty. The Court finds no indication that the applicant was prevented from properly arguing his case or from submitting his arguments before the courts. Moreover, he was assisted by a lawyer and at least one interpreter. In addition, the domestic courts addressed and dismissed the applicant’s complaints currently before the Court. The applicant did not adduce any other evidence capable of casting doubt on the courts’ findings in this respect.
In respect of the witnesses whom the applicant could not cross-examine because they had left the country, the Courts finds that the domestic courts did not base the applicant’s conviction solely, or in a decisive manner, on their statements. In particular, the applicant’s presence at the scene of the crime was corroborated by his own statements, the murder weapon was identified as a knife that he had previously had in his possession and he was detained while cleaning the taxi of blood stains and after having switched its registration plates. In essence, the principle circumstance to be elucidated was whether the applicant had murdered the taxi driver or, as he claimed, had found him dead, had removed from him the car and had simply taken the vehicle to return home. In finding that the applicant had in fact murdered the victim before taking his car, the domestic courts relied on the crime scene inspection’ report, the experts’ opinions, the medical reports and the different types of analyses rather than on the statements of the witnesses who had left the country.
In conclusion, the Court is satisfied that the applicant was given an adequate and proper opportunity to present his defence. The non-attendance, at the trial stage of the proceedings, of the witnesses who had left the country, coupled with the domestic courts’ inability to summon them and the fact that his conviction was not based solely, or in a decisive manner, on their statements, did not restrict his defence rights to an extent that he was not afforded a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention (see, mutatis mutandis, Solakov, cited above, § 67).
It follows that these complaint are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Complaints that the applicant was not provided free assistance of an interpreter and a translation of the indictment
In respect of the applicant’s complaints that he was ordered to pay for the services of the interpreter or interpreters before the domestic courts and that he was not provided with a translation of the indictment, the Court considers that he has failed to substantiate these complaints. In particular, he did not present any court order, agreement or receipt evidencing that he was required to pay or paid for the services of the interpreter or interpreters who assisted him during the proceedings. Nor has the applicant presented a copy of the indictment against him or submitted information or data pertaining to how and when he was informed of the nature and cause of the accusations against him.
It follows that these complaint are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Articles 6 § 1 of the Convention concerning the length of the criminal proceedings
The applicant complained of the excessive length of the criminal proceedings against him.
Article 6 § 1 of the Convention provides, as relevant:
“In the determination of ..., any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
C. Complaint under Article 7 § 1 of the Convention in respect of the sentence imposed on the applicant
The applicant complained under Article 7 of the Convention that the domestic courts imposed a sentence of life imprisonment on him, which was not provided for under national law at the time the offences were committed.
Article 7 of the Convention provides as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
The Court recalls that according to the Court’s case-law, Article 7 § 1 of the Convention embodies generally the principle that only the law can define a crime and prescribe a penalty and prohibits in particular the retrospective application of the criminal law where it is to an accused’s disadvantage (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260‑A, p. 22, § 52; and G. v. France, judgment of 27 September 1995, Series A no. 325‑B, p. 38, § 24).
The Court notes that in the present case the domestic courts, arguing that the applicant should have been sentenced to death, imposed a joint sentence of “life imprisonment”, which they found to be more lenient then the death penalty. Accordingly, the amendment of the forms of penalties envisaged in the Criminal Code for the most severe offence for which the applicant was found guilty operated in the applicant’s favour and he received a more lenient penalty than was envisaged for that offence at the time it was committed.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to adjourn the examination of the applicant’s complaint concerning the length of the criminal proceedings (Article 6 § 1);
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy