KOČEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 36309/10
Kiril KOČEVSKI
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 24 May 2016 as a Chamber composed of:

Ledi Bianku, President,
Mirjana Lazarova Trajkovska,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Robert Spano,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having regard to the above application lodged on 23 June 2010,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kiril Kočevski, is a Macedonian national, who was born in 1947 and lives in Skopje. He was represented before the Court by Mr Ž. Hadži-Zafirov, a lawyer practising in Skopje.

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

A. The circumstances of the case

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

1. Background to the case

4. On 10 September 1996 bankruptcy proceedings were opened against a formerly socially-owned company (“S.”).

5. On 13 March 2000, while the bankruptcy proceedings were still pending, the applicant was appointed acting manager of S.

6. By a decision which became final on 26 September 2000 the Skopje Court of First Instance upheld a claim (утврдува пријавено побарување) against S. in favour of a certain Mr D.T. (a former employee of S.) in the amount of 55,270 Macedonian denars (MKD).

7. On 24 December 2001 the bankruptcy proceedings against S. were stayed and consent (согласност) was given for proceedings to be instituted for the restructuring of S. under the Transformation of Socially-Owned Companies Act (see paragraph 30 below).

8. According to a document (аналитичка картица) issued on 26 December 2005 by S., Mr D.T. owed S. MKD 9,067,814.

2. Criminal proceedings against the applicant

9. On 28 April 2006 an investigating judge questioned the applicant and opened an investigation against him and four other people suspected of abuse of office (злоупотреба на службената положба и овластување).

10. At a hearing held on 30 November 2006, the trial court dismissed an application lodged by 203 former employees of S. to be represented as victims (оштетени) at the trial. It is not evident from the case file whether Mr D.T. was among those employees.

11. On 6 February 2007 the applicant was remanded in custody. Subsequently, he submitted several requests to be released on bail which were to no avail. In those requests he made no reference to his state of health.

12. On 22 February 2007 the Skopje Prison (“the prison authorities”) requested that the Skopje Court of First Instance (“the trial court”) allow the applicant to be medically examined as his health had deteriorated. The request referred to a note of the same date in which the prison doctor diagnosed the applicant as suffering from sindroma psihoorganicum incipiens (presumably early-stage psycho-organic syndrome). On 23 February 2007 Judge V.M. granted that request. No information was submitted as to whether the applicant was examined or the results of the examination.

13. On 1 March 2007 the prison authorities requested that the trial court allow the applicant to undergo a psychological examination. They referred to a note dated 28 February 2007, in which the prison doctor had made the same diagnosis (see paragraph 12 above).

14. At a hearing held on 12 April 2007, the applicant, who was represented by two lawyers, lodged his own request for his psychological examination. The trial court dismissed both requests on the grounds that they were not sufficiently detailed. At that hearing the court examined two witnesses. Тhe applicant questioned one of them.

15. On 30 April 2007 a three-judge panel of the trial court presided by Judge V.M. convicted the applicant and sentenced him to six years’ imprisonment. The court found that in the period between 2000 and 2002 the applicant had ordered the four co-accused to acknowledge false claims made by another company, E. (also undergoing bankruptcy proceedings) against S. and to transfer those claims to a third company, B., which had been owned by the applicant. The false claims had later been transformed into 98% of S.’s capital, on the basis of which B. (subsequently renamed to company S.1) became S.’s main shareholder. The court found that a programme for the financial transformation of S. (“the programme”) had been prepared at the applicant’s request. On 19 November 2001 appendices to the programme had been prepared, but they had not been presented to the creditors in the bankruptcy proceedings or to the Privatisation Agency. The court concluded that the competent institutions had taken a positive stance (позитивно се произнеле) concerning S.’s transformation, but that they had been unaware of the circumstances concerning the acknowledgment of the debt towards E. and concerning the transformation of the debt into a share in S. The judgment further stated that, as a result of the alleged debt, S. had been brought to insolvency (негативна состојба) and that without that debt, the deficit of S. would have been significantly smaller and could have been consolidated by selling some of S.’s immovable property.

16. On 10 May 2007 S. complained to the State Judicial Council that Judge V.M. had been biased, since Mr D.T. was the unmarried partner of Judge V.M. and a former employee of S. He had rented business premises from S. for which he owed S. approximately MKD 4,000,000 in unpaid rent. He allegedly owed S. a further MKD 271,220. A claim against S. had been established by a court decision (see paragraph 6 above).

17. The weekly newspaper Fokus (according to the applicant, in its edition of 11 May 2007) published an article about the criminal proceedings against the applicant. The article stated that Mr D.T. had both a claim against and a debt (which he had never paid) to S. and that he was Judge V.M.’s unmarried partner. It included a statement by the applicant’s brother according to which the applicant and his family had learnt about those facts the day the trial court’s judgment had been pronounced.

18. The applicant’s three representatives lodged three separate appeals against the judgment of 30 April 2007. A fourth appeal was lodged by the applicant’s son. In the appeals it was argued, inter alia, that the trial court had not been impartial given that Mr D.T., the unmarried partner of Judge V.M., owed S. money and had a claim against it. On 11 May 2007 details concerning Mr D.T.’s alleged financial relations with S. had been published in a weekly newspaper. It was further argued that the trial court had failed to obtain an expert opinion about the applicant’s poor state of health, which had affected his ability to follow the trial.

19. On 21 June 2007 a psychiatrist (V.V.) examined the applicant in the detention department of Skopje hospital. According to a handwritten note issued by V.V. on 25 June 2007, it was necessary to transfer the applicant to a psychiatric hospital. In view of his psychological state, he could not attend the trial, nor could his statements be considered valid until a definitive diagnosis was established.

20. The applicant stayed in the psychiatric hospital from 26 June to 22 October 2007.

21. On 5 July 2007 a psychologist drew up a report on the applicant’s psychological state, at his own request. The report stated, inter alia, that the applicant’s thinking process was slow and that he was unable to respond to complex tasks requiring an increased level of abstraction and generalisation. A memory deficit was noted. The report concluded as follows:

“The results of the psychological examination confirm affective and thought distortions of a depressive and paranoid character, as well as psycho-organic syndrome (психоорганицитет), which are deeply disrupting the mental state of the examinee resulting in profound psychological deviation. The examinee lacks insight and criticality for the condition in which he has been placed following the indictment”.

22. On 7 November 2007 the Skopje Court of Appeal (“the appellate court”) held a public session, which the applicant and his three representatives attended. The applicant notified the second-instance court of the deterioration in his health. The applicant’s lawyers argued that the applicant’s defence rights had been infringed at the hearing of 12 April 2007 because witnesses had been heard despite the fact that the applicant had requested a psychological examination in order to assess his capacity to follow the trial. They did not submit copies of the note of 25 June 2007 or of the report of 5 July 2007. The lawyers also repeated the arguments as to the alleged impartiality of Judge V.M. given that her partner had both a debt to and a claim against S.

23. On the same day, the appellate court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant parts of the judgment read as follows:

“The court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(1)(2) of [the Criminal Proceedings Act] ... that the unmarried partner of [Judge V.M.] had a direct interest in the outcome of these criminal proceedings ... but dismissed the complaint as groundless.

Namely, under the provision of section 381(1)(2) of [the Criminal Proceedings Act], there is an absolute substantial violation of procedural law only if a judge or a lay judge who needed to be excluded (section 36(1)(5)) participated at the trial. It is obvious from the complaints in this respect that they are based on an alleged existence of a reason for exclusion under section 36(2) of the Act, that is to say outside the reasons for mandatory exclusion under the provision of section 36(1)(5) of the Act ...

Subsequently, the court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(2) in conjunction with section 36(1)(2) of [the Criminal Proceedings Act] with the same content, but did not accept it as grounded, because on the basis of the established facts of the case it cannot be found that there existed a direct link between the pecuniary interests of the unmarried partner of [Judge V.M.] and the object of these criminal proceedings, which would be of such a nature as to put into doubt the impartiality of the Judge in the performing of her adjudicating function in the criminal proceedings.

The court assessed the complaint concerning an [alleged] substantial violation of procedural law ... that the trial court, contrary to law, had examined witnesses ... on 12 April 2007 outside the trial, ... [notwithstanding that there had been a] previous request for a psychiatric examination of the [applicant] in order to assess his mental capacity to follow the trial, but dismissed the complaint as groundless.

Namely, it is evident from the record from the witnesses’ ... questioning ... [that] all of the accused who were present at the hearing had the right to put questions to the witnesses, [and] this right was exercised by some of the accused, including [the applicant], which clearly points to the conclusion that [the applicant] was not only capable of following the trial, but he could also actively participate by putting questions to the witnesses as one of the corpus of minimum rights guaranteed to each accused by the Constitution ..., the Criminal Proceedings Act and the European Convention on Human Rights as a basic international document on the matter.”

24. The court further found that the bankruptcy proceedings against S. had been opened on 10 September 1996 and stayed on 24 December 2001. On the latter date, consent (согласност) had been given for the institution of proceedings for the transformation of S. on the basis of the programme for financial and ownership transformation, which had been approved by the Privatisation Agency.

25. The applicant challenged that judgment by means of a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда). He reiterated his complaints concerning the alleged lack of impartiality of Judge V.M. and concerning his request for a psychological examination. He did not submit a copy of the report of 5 July 2007 (see paragraph 21 above).

26. On 23 December 2009 the Supreme Court dismissed the applicant’s request and upheld the lower courts’ judgments. It referred to section 36(1) (2) of the Criminal Proceedings Act and found as follows:

“In the present case... it does not transpire (никаде не произлегува) that the unmarried partner of [Judge V.M.] submitted a compensation or [other] pecuniary claim ... in these proceedings. ... neither in the preliminary proceedings nor at the trial did the unmarried partner of [Judge V.M.] lodge a compensation claim and he does not have the status of a victim in the proceedings, within the meaning of the provisions of the Criminal Proceedings Act. In such circumstances ... the impartiality of [Judge V.M.] in the performance of her judicial function in the criminal proceedings cannot be put into doubt.

... all those convicted who attended the examination (of the witnesses) had the right to question them, [and] this right was exercised by some of the accused, including [the applicant], which leads to a conclusion that [the applicant] was not only capable of following the trial, but he was also able to participate actively by putting questions to the witnesses ...”

27. On 25 December 2009, the applicant, who was transferred in the meantime to Idrizovo Prison, lodged a request for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната). The prison authorities immediately communicated the request to the Supreme Court. The request was accompanied by a medical report drawn up by the prison doctor on 23 December 2009 regarding the applicant’s health since 8 August 2002.

28. On 2 March 2010 the Supreme Court upheld the applicant’s request and reduced his sentence to five years and six months’ imprisonment. It took into account as new relevant circumstances the deterioration of his health and that of members of his family, as well as the positive opinion of the prison authorities.

B. Relevant domestic law

1. Criminal Proceedings Act (consolidated text) (Закон за кривичната постапка (пречистен текст), Official Gazette no. 15/2005)

29. The relevant provisions of the Criminal Proceedings Act in force at the material time provided as follows:

“Section 4

...

(2) Every accused person has the following minimum rights:

...

- to have sufficient time and possibilities (можности) to prepare his or her defence ...

Exclusion

Section 36

(1) A judge or a lay-judge cannot perform his or her judicial function if:

(1) he or she has suffered damages as a result of the criminal offence;

(2) the accused, his or her defence lawyer, the claimant (тужителот), the damaged party or their legal or other representative is a married or unmarried partner or a relative ...;

(3) he or she is a custodian, an adoptive parent, an adoptive child ... of the accused, his or her defence lawyer, the claimant or the damaged party;

(4) he or she has undertaken investigative measures in the same criminal proceedings or has participated in assessing the indictment before the trial, or has participated in the proceedings as a claimant, defence lawyer, legal or other representative of the damaged party or the claimant, or has been heard as a witness or as an expert; and

(5) in the same proceedings, he or she has participated in the rendering of the decision by a lower court or, in the same court, he or she has participated in the rendering of the decision challenged with the appeal.

(2) A judge or a lay-judge can be excluded from performing the judicial function, apart from the cases listed under subsection (1) of this section, if evidence is submitted casting doubts as to his or her impartiality.

Section 37

When he or she learns that a reason for exclusion of section 36 subsection (1) of the Act exists, a judge or a lay-judge is obliged to stop his or her work on the case and to inform the president of the court, who will name a replacement. ...

Section 38

(1) Exclusion can be also sought by the parties.

(2) The parties can seek exclusion until the commencement of the main hearing, and if they found out later about the reason for exclusion, immediately after finding out.

...

Section 321

(1) Apart from the cases explicitly provided for by this Act, the main hearing will be adjourned with a decision of the panel if it is necessary to obtain new evidence, or if during the main hearing it is established that, after the offence had been committed, the accused started suffering from a temporary psychological illness or temporary mental disorder or if there are other obstacles to the trial being conducted successfully.

...

Section 381

(1) There is a substantial violation of procedural law if:

...

(2) a judge or lay-judge who had to be excluded (section 36(1)(5)) participated at the trial...

(2) There is also a substantial violation of procedural law if the court, while preparing the trial or at the trial, or in adopting its decision did not apply or wrongfully applied a provision of this Act, or violated the right to defence at the trial, which affected or could have affected the lawful and correct adjudication.

...

2. Extraordinary mitigation of a sentence

Section 425

Mitigation of a finally imposed sentence is allowed when, after the judgment became final, circumstances come to light which did not exist when the judgment was pronounced, or the court was not aware of their existence, and which would obviously lead to a more lenient conviction (поблага осуда).”

2. Transformation of Socially-Owned Companies Act (Закон за трансформација на претпријатијата со општествен капитал, Official Gazette nos. 38/93 and 21/98)

30. The relevant provisions read as follows:

“VI. TRANSFORMATION OF A COMPANY UNDERGOING BANKRUPTCY

(ТРАНСФОРМАЦИЈА НА ПРЕТПРИЈАТИЕ ВО СТЕЧАЈ)

Section 80

The creditors can apply to the bankruptcy panel for a temporary stay of the bankruptcy proceedings and for the company to be allowed to continue to operate.

...

Section 81

Within sixty days the executive board adopts a programme for financial and ownership transformation, which encompasses the measures, actions and activities for long-term consolidation of the company, and in particular ...              

- ...

- conversion of the debt into a permanent share (конверзијата на долгот во траен влог);

...

Section 83

After the recovery (санирањето) and reorganisation of the debtor company, the executive board adopts a decision to transform ownership to a joint stock company (акционерско друштво) or a limited liability company (друштво со ограничена одговорност).

On the basis of an opinion of the [Privatisation Agency] on the decision mentioned in ... [the paragraph above], the bankruptcy panel adopts a decision giving consent (согласност) to the institution of transformation proceedings, which stays the bankruptcy proceedings.

...

If the recovery and reorganisation of the debtor company do not provide the expected results, the executive board proposes that the bankruptcy panel continue the bankruptcy proceedings.

The bankruptcy proceedings are also continued if the bankruptcy panel does not give the consent mentioned in ... this section.”

COMPLAINTS

31. The applicant complained under Article 6 § 1 of the Convention that his case had not been decided by an impartial tribunal and that he had been unable to participate effectively in the trial.

THE LAW

32. The applicant alleged a lack of impartiality on the part of Judge V.M. due to the financial relations of her unmarried partner, namely Mr D.T., with the company S. He further complained of a violation of his right to participate effectively in the proceedings. He relied on Article 6 § 1 of the Convention, which in so far as relevant provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”

A. Alleged lack of impartiality on the part of Judge V.M.

1. The parties’ submissions

33. The Government concurred with the findings of the domestic courts that the impartiality of Judge V.M. had not been put into doubt. Her partner had not participated in any way in the impugned criminal proceedings. The fact that he had had a debt to and a claim against S. had not put into question Judge V.M.’s impartiality, given that both the debt and the claim had been previously established by means of final court decisions in proceedings unrelated to the criminal proceedings at hand. Moreover, the settling of the debt and the payment of the claim were unrelated to the impugned criminal proceedings. The applicant’s criminal responsibility had had no influence, and could not have had any influence, over the creditor-debtor relations, which had not been determined by the outcome of the criminal proceedings against the applicant. The applicant had not indicated how those relations could have affected the judge’s impartiality, nor had he specified any particular examples of partiality in her behaviour. The appellate court and the Supreme Court had reviewed and decided on the applicant’s complaint in this respect. The alleged relationship between the pecuniary interest of Judge V.M.’s partner and the impugned criminal proceedings was too speculative to raise any doubts as to her impartiality.

34. The applicant argued that, at the time when the criminal proceedings had begun, Judge V.M.’s partner had a claim against S. in the amount of MKD 55,270 and a debt to S. in the amount of MKD 9,067,814. After S. had declared insolvency, the applicant had managed the so-called “company recovery programme” (presumably the programme for financial transformation of S., see paragraph 15 above). The applicant’s conviction had led to a complete collapse of the programme, after which the State had taken over S. Judge V.M.’s partner had still not paid his debt to S. The failure of the programme could mean that the payment of that debt would be prolonged or even become time-barred. Judge V.M. had been obliged to report her partner’s relations with S. and his financial interests to the President of the court under section 37 of the Criminal Proceedings Act; her failure to do so confirmed the doubts regarding her impartiality. Moreover, that doubt had persisted throughout the trial, during which Judge V.M. had dismissed on several occasions requests for the applicant’s psychological examination. In addition, the media in the respondent State had raised the question of the objective appearance of partiality on the part of Judge V.M. (see paragraph 17 above). The domestic courts had not given substantial reasons in their decisions to dismiss the applicant’s arguments in respect of this issue.

2. The Court’s assessment

(a) General principles

35. The Court observes that the relevant Convention principles have been summarised in its judgment in the case of Morice (see Morice v. France [GC], no. 29369/10, §§ 73-78, 23 April 2015, with further references), as follows:

“73. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality ...

74. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court ... The personal impartiality of a judge must be presumed until there is proof to the contrary ... As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons ...

75. In the vast majority of cases raising impartiality issues the Court has focused on the objective test ... However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) ... Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee ...

76. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified ...

77. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings ... It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal ...

78. In this connection even appearances may be of a certain importance or, in other words, ‘justice must not only be done, it must also be seen to be done’ ... What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw ...”

(b) Application of the principles to the present case

36. In the instant case, the applicant’s concerns regarding the impartiality of Judge V.M. stemmed from the fact that her unmarried partner had both a claim against and a debt to the company S. and that the criminal proceedings against the applicant were related to the transformation of the company S. The applicant argued that his conviction had led to a failure to implement the programme for the recovery of S., or the programme for the financial transformation of S., which could postpone or even time-bar the payment of Mr D.T.’s debt to S. The Court will therefore confine its examination to the financial link between Judge V.M.’s partner and S.

37. Under the subjective test, the Court reiterates that the personal impartiality of a judge must be presumed until there is proof to the contrary (see paragraph 35 above). In the present case, the applicant argued that Judge V.M.’s failure to report her partner’s interest to the President of the trial court confirmed his doubts as to her impartiality. In this connection the Court notes that under domestic law a judge was only obliged to report the circumstances provided for under section 36(1) of the Criminal Proceedings Act, which, as established by the domestic courts (see paragraphs 23 and 26 above), did not exist in the applicant’s case. The Court is also not persuaded by the applicant’s argument that the fact that Judge V.M. dismissed his request for a psychiatric examination confirmed the doubts as to her impartiality. The fact that, on hearing the case, the judge ruled against the applicant on some points or decided to proceed in a certain manner does not constitute proof of partiality (see Dimitrov and Others v. Bulgaria, no. 77938/11, § 159, 1 July 2014). The Court therefore considers that the applicant has not adduced proof as to Judge V.M.’s personal bias.

38. The case must therefore be examined from the perspective of the objective impartiality test. More specifically, the Court must address the question whether the applicant’s doubts, stemming from the specific circumstances, may be regarded as objectively justified in the circumstances of the case.

39. The Court observes that Judge V.M.’s partner was neither a party to the impugned proceedings nor involved in them in any other capacity. The company S. with which he had financial relations was also not a party to the impugned proceedings (compare and contrast Pétur Thór Sigurðsson v. Iceland, no. 39731/98, § 39, ECHR 2003‑IV). The outcome of the bankruptcy proceedings against S. or the prospect of the programme for its recovery and financial consolidation were not a direct subject of the criminal proceedings against the applicant. The applicant failed to explain how his conviction was linked to the failure of that programme. Nor was it demonstrated in any manner that the outcome of the criminal proceedings against the applicant would affect the payment of Mr D.T.’s debt to S.

40. In view of this, the Court considers that the reasons for doubting Judge V.M.’s impartiality were not objectively justified in the circumstances of the case (see Procedo Capital Corporation v. Norway, no. 3338/05, § 63, 24 September 2009). In this connection, the Court accepts the reasons that the appellate court gave in its judgment (see paragraph 24 above). It does not see any other argument which would lead it to reach a different conclusion. That some media, alerted by the applicant’s brother, voiced concerns as to Judge V.M.’s impartiality (see paragraph 17 above) is of no direct relevance either.

41. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged impossibility of effective participation in the trial

1. The parties’ submissions

42. The Government argued that the applicant had not appropriately exhausted domestic remedies in respect of this complaint.While in pre-trial detention, he had applied for release on bail but had failed to raise the arguments concerning his health. At the trial, none of the applicant’s lawyers argued that the applicant had been unable effectively to follow or participate in the trial. The prison authorities’ request of 1 March 2007 and the applicant’s intervention at the hearing of 12 April 2007 could not be considered sufficient, clear and unambiguous indications of such an inability. The request of 1 March 2007 had not indicated that the applicant’s state of health was poor or had deteriorated, but was merely a request for a psychological examination. The applicant had participated in the questioning of the witnesses, had objected to some of their statements and had, together with his lawyers, submitted proposals for evidence. His allegation that he had been unable to participate effectively in the proceedings had been raised for the first time in the appeal against the trial court’s judgment. The medical reports relied on by the applicant or the information contained therein had not been submitted to the Supreme Court. The reports had been submitted to the court by the prison authorities only after the application for extraordinary mitigation of the sentence had been lodged. Moreover, the reports post-dated the first-instance judgment.

43. The applicant argued that the appeal against the trial court’s judgment had been lodged before the psychological examinations had been conducted. The findings of those examinations could not have been used in the proceedings before the Supreme Court as the applicant and his lawyers had obtained them after that remedy had been sought. The fact that the reports had only been submitted to the Supreme Court in the proceedings for extraordinary mitigation of the sentence confirmed that the applicant had not had access to them in 2010. Throughout the trial the applicant had asked to be medically examined. Judge V.M. had dismissed without reasoning the applicant’s request for a psychological examination. The applicant had repeatedly complained about his inability to attend the trial, notably in his appeals and requests for extraordinary review of the final judgment, and neither the appellate court nor the Supreme Court had provided sufficient reasoning in dismissing that complaint. The applicant’s reduced state of consciousness had directly affected his ability to participate actively in the proceedings, as was evident from the report of 25 June 2007.

2. The Court’s assessment

44. The Court must consider the proceedings as a whole, including the decisions of the higher courts. Its task is to ascertain whether the proceedings in their entirety were fair. Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general, this includes, inter alia, his right not only to be present, but also to hear and follow the proceedings (see Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000; Stanford v. the United Kingdom, 23 February 1994, §§ 24 and 26, Series A no. 282‑A).

45. The Court notes that the two initial requests for a medical examination of the applicant originated from the prison authorities. The applicant did not provide any information as to the outcome of the medical examination following the request of 22 February 2007.

46. As to the refusal of Judge V.M. to commission a psychological examination of the applicant, the Court notes that she provided reasons for that decision, namely that the request had not been sufficiently substantiated. At the hearing held on 12 April 2007, the applicant and his lawyers did not provide any additional information in support of the prison authorities’ request. The Court reiterates in this context that Article 6 does not impose on domestic courts an obligation to order an expert opinion to be produced solely because it was sought by a party (see, mutatis mutandis, Vozhigov v. Russia, no. 5953/02, § 37, 26 April 2007). Moreover, the applicant did not raise that issue again before the trial court.

47. As to the proceedings after the first-instance judgment had been adopted, the Court notes that the report of 5 July 2007 was prepared at the applicant’s request. That report was not communicated either to the appellate court or to the Supreme Court, although it pre-dated both their judgments (see paragraphs 22 and 25 above). The applicant did not provide any explanation for that failure. Moreover, neither the applicant nor his lawyers provided any details as to the deterioration in his health at the session of the appellate court which they attended (see paragraph 22 above). It also appears that the fact that the applicant was hospitalised during the criminal proceedings remained unknown to both the appellate court and the Supreme Court.

48. In view of these circumstances, the Court considers that the applicant’s complaint that he had been unable to participate effectively in the trial was not sufficiently substantiated before the domestic courts.

49. Lastly, the Court notes that in the impugned criminal proceedings the applicant was represented by several defence lawyers (see paragraphs 14 and 18 above) who had no difficulty in following the proceedings (see Stanford, cited above, § 30) and who could have brought any relevant information concerning the applicant’s health to the attention of the domestic courts.

50. For all of the above reasons, the Court finds this complaint manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 June 2016.

Abel CamposLedi Bianku
RegistrarPresident

 

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