MALIKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 54609/11
Vedat MALIKI
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 11 September 2018 as a Committee composed of:

Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 19 August 2011,

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 Vedat Maliki, is a dual Macedonian/Dutch national who was born in 1967 and lives in Ad Leeuwarden. He was represented before the Court by Mr P. Petrovski, a lawyer practising in Ohrid.

2. The Macedonian Government (“the Government”) were represented by their former Agent Mr K. Bogdanov, later succeeded by Ms D. Djonova.

3. On 15 July 2015 the Dutch Government were given notice of the application but they did not exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention).

A. The circumstances of the case

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

5. On 4 August 1996 the applicant’s wife was killed near a road connecting Ohrid and the nearby city of Struga in the former Yugoslav Republic of Macedonia. Soon after, an investigation was opened in respect of the applicant on suspicion that he had committed the murder. On 7 and 12 August 1996 witnesses B.C., A.Z., Z.V., S.V. and K.T. gave statements before an investigating judge (истражен судија). B.C., a police officer stationed at the border crossing point with Albania, stated that around 11 a.m. on 4 August 1996 he had seen the applicant in a red car with Dutch registration plates cross the Macedonian border point without stopping. He had run after the applicant and contacted the Albanian border officers requesting them to send the car back. They showed him the applicant’s Dutch passport but did not allow the car to return. S.V. and K.T., who were border police officers working with B.C., corroborated his statement.

6. A.Z. stated that some days prior to the murder he had seen the applicant arguing with his wife near his house. As they were speaking Dutch, he could not understand what they were arguing about. The applicant and his wife had arrived in Ohrid for a holiday and were staying in the house of A.M., the applicant’s brother. He also had seen them on another occasion sitting in a café in Ohrid. He did not know anything more relating to the murder.

7. Z.V. stated that at the place of the murder at the time it happened he had seen a parked red car, as was the applicant’s car, and a man kneeling.

8. The case was examined by Ohrid Court of First Instance (Основен Суд Охрид - “the trial court”). The applicant, who was untraceable, was tried in absentia. He was represented by a State-appointed lawyer. The trial court examined witnesses B.C., Z.V. and A.M., and, with the consent of the applicant’s lawyer, read out the statements given during the investigation by witnesses A.Z., S.V. and K.T.

9. On 7 July 2008 the trial court convicted the applicant for murder and sentenced him to fifteen years’ imprisonment. It established the facts and the sequence of events on the basis of the statements of the witnesses (see paragraphs 5, 6 and 7 above). The trial court also relied on photographs taken in Albania on 13 August 1996 of the applicant’s passport with visible traces of blood on it.

10. On 12 December 2008 the Bitola Court of Appeal (Апелационен Суд Битола) upheld that judgment finding no reasons to depart from the established facts and the given reasons.

11. On 25 December 2008 the applicant entered the territory of the respondent State. On 31 December 2008 he was arrested for the purpose of serving his prison sentence. Following a successful request for reopening by the applicant, a new trial was held before the trial court.

12. At a hearing of 10 December 2009, B.C., Z.V. and A.M. were present, unlike A.Z., S.V. and K.T. who were not properly summoned. The applicant was present with a lawyer of his own choosing. The witnesses were not heard since pursuant to the applicant’s request for recusal of the trial judge the hearing was adjourned.

13. A new hearing was scheduled for 10 February 2010. On that occasion the applicant stated that his car was red. He had arrived in the respondent State with his wife on holiday. He had stayed at his brother’s house. On the critical day, he and his wife drove in their car in the direction of Struga, when they were intercepted and attacked by four persons. In the course of the attack he had fainted. He recovered just before the border crossing point, when he was taken out of the trunk of his car and a person holding a handgun pointed him towards the crossing point. He had passed through the Macedonian crossing point, where there had been neither an officer nor a barrier gate. At the Albanian border crossing point he had been taken out of the car. He had been detained in Albania for a month where he learned that his wife had been killed. He was then extradited to the Netherlands. B.C., A.Z., Z.V. and K.T. did not attend that hearing albeit being properly summoned.

14. At a hearing held on 7 April 2010, Z.V. stated that he fully upheld his statement given during the investigation of 12 August 1996, since he no longer remembered the details of the event due to the lapse of time. The applicant and his representative declined to cross-examine him. B.C., A.Z. and K.T. were not present since they were not properly summoned. The trial court admitted the statements of B.C., A.Z., S.V. and K.T. into evidence (see paragraphs 5 and 6 above) notwithstanding that the applicant objected arguing that it already had sufficient evidence to establish the facts of the case.

15. In his concluding remarks the applicant’s representative submitted that the indictment had been based on the statements of Z.V., who was an eyewitness, and B.C. He stated that the applicant had not denied that he had crossed the border without stopping on 4 August 1996, but had explained his reasons for doing so.

16. On 10 June 2010 the trial court upheld (останува во сила) the judgment of 7 July 2008. It dismissed the applicant’s defence as unsubstantiated, stating inter alia that:

“... In the court’s view, the evidence admitted during the reopened criminal proceedings did not change the facts established with the judgment ... of 7 July 2008 and the judgment ... of 12 December 2008 nor the elements of the crime established with (those judgments) ...”

17. The applicant challenged the judgment arguing that there was insufficient evidence to corroborate his guilt. He further requested without any further details that the appeal court order a retrial in which the trial court would examine B.C. and A.Z.

18. At a public hearing held on 12 October 2010, which was attended by the applicant’s representative, Bitola Court of Appeal upheld the trial court’s judgment. The relevant part of the judgment reads as follows:

“... On the basis of the admitted evidence, the trial court established that the [applicant] had not stopped his car at the border crossing point, but had passed by at excessive speed, which led witness [B.C.] – a police officer in the police station at the border crossing point, to run after him, but had failed because the accused had already entered the border crossing point on the Albanian side. On that occasion, the passport of the accused had been shown to [B.C.] by an Albanian border officer. [B.C.] noticed that it had been a Dutch passport and that it had belonged to a person [with the applicant’s name]. In the context of this statement, S.V. and K.T., also employed in the [same border] police station ..., describe those circumstances in their own statements.

... [T]he lower court established the facts on the basis of all the evidence in the proceedings taken together. Witness Z.V. pointed to the presence of [the applicant] and his car at the place of the incident. His statement was assessed by the trial court, which found it convincing. [It confirmed] that [the applicant], on the critical day, had been at the place at which, as established later, [the applicant] had inflicted several injuries to his late wife ...”

19. On 18 November 2010 the applicant lodged a request for extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) with the Supreme Court. He complained about the lack of reasoning in the lower courts’ judgments and that the statements of B.C. and A.Z. had been read out at the trial without his consent. Lastly, he reiterated his request that after the case was remitted, the trial court should examine B.C. and A.Z.

20. On 11 January 2011 the Supreme Court dismissed the request and confirmed the lower courts’ judgments. The relevant parts of the judgment read as follows:

“... [E]stablished facts are supported with admitted evidence, in particular by the statement of Z.V., who confirms that at the critical time and place there was a parked red car, identical to the [applicant’s] car. The witness saw a man kneeling with his face towards the road and the on-site investigation confirmed that the murderer was in that position when he undertook the incriminated actions ...

... The Supreme Court concludes that the complaint that the witnesses A.Z., B.C. ... were not heard is ill-founded, given that ... [their] statements were read out at the trial... in accordance with the provisions of the Criminal Proceedings Act, and were examined and assessed by the lower courts”.

B. Relevant domestic law

21. According to section 171(4) of the Criminal Proceedings Act, as applicable at the time (Закон за кривичната постапка – пречистен текст, Official Gazette no. 15/2005) the prosecutor, the defendant and the defence counsel are entitled to be present at the questioning of a witness during investigation, when it is probable that the witness will not appear at the trial, if the investigating judge considers it expedient or if one of the parties so requests.

22. Section 351(3) of the Act provides that the trial panel may decide, after consulting the parties, to read out the statement of the witness or expert who is not present at the hearing, irrespective of whether they have been invited to the hearing. After having read the statement and hearing the comments from the parties and taking into account the remaining evidence in the case, the panel will decide whether to call the witness to give testimony before the court. Section 351 (5) provides that the reasons for reading out the statements will be provided in the minutes.

COMPLAINTS

23. The applicant complains under Article 6 of the Convention about the admission into evidence of the statements of B.C. and A.Z., whom he was unable to examine. He further complains that the domestic courts did not provide sufficient reasons for their judgments.

THE LAW

24. The applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair because his conviction was based on the statements provided by B.C. and A.Z., whom he had not been able to cross-examine. He further complained that the domestic judgments had not relied on sufficient evidence to corroborate his guilt. Article 6 §§ 1 and 3 (d), in so far as relevant, 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:

...

(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;

...”

A. The admission into evidence of the pre-trial statements of witnesses B.C. and A.Z.

1. The parties’ arguments

(a) The Government

25. The Government submitted that the domestic courts had a wide margin of appreciation as to the admission of evidence. Witness B.C. had been summoned for some hearings after the proceedings had been reopened. Furthermore, it was likely that he would have testified similarly to Z.V. (see paragraph 14 above). Accordingly, the failure to hear him in the reopened proceedings did not create any disadvantage for the defence. Moreover, the circumstances in respect to which he would have testified, namely the applicant’s crossing the border, had been established by other evidence. With respect to witness A.Z. the Government submitted that the domestic courts made attempts to secure his presence at the trial. The circumstances that were established on the basis of his statement were also corroborated by other supporting evidence. In any event the above statements did not constitute sole nor decisive evidence in the case. Accordingly, the fact that these witnesses had not been examined at the trial did not render it unfair.

(b) The applicant

26. The applicant stated that B.C. was supposed to testify to whether he saw the applicant crossing the border, what the applicant had told the Albanian authorities, who pursued him and who wanted him killed. A.Z. was to testify that the applicant and his wife were followed during their stay in Ohrid by third persons who were responsible for the murder. B.C. and A.Z. were “key witnesses” whose statements contributed to the establishment of the facts. Moreover, adducing evidence in the presence of the applicant and his representative was the purpose of the reopening of the proceedings.

2. The Court’s assessment

27. The Court reiterates that Article 6 § 3 (d) of the Convention is a specific aspect of the right to a fair hearing guaranteed by Article 6 § 1 which must be taken into account in any assessment of the fairness of the proceedings (see, among many other authorities, Trampevski v. the former Yugoslav Republic of Macedonia, no. 4570/07, § 42, 10 July 2012).

28. The relevant principles developed in the Court’s case-law on the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence were set out in the cases of Schatschaschwili v. Germany ([GC], no. 9154/10, § 107, ECHR 2015) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011). These principles were recently summarised in the case of Seton v. the United Kingdom (no. 55287/10, §§ 58 and 59, 31 March 2016).

29. Turning to the present case, the Court notes that in the reopened proceedings the trial court made several attempts to secure the attendance of B.C. and A.Z. (see paragraphs 12, 13 and 14 above) and that B.C. was present for the hearing of 10 December 2009 only although he did not testify (see paragraph 12 above). In spite of the above, after admitting the remaining evidence the trial court decided to read the statements of B.C. and A.Z. holding that it had sufficient evidence to establish the facts of the case. In the Court’s view, that cannot be regarded as a good reason for the non‑attendance of these witnesses. The Government’s arguments in this respect (see paragraph 25 above) are not conclusive either.

30. However, the absence of a good reason is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes an important factor to be weighed in the overall balance together with the other relevant considerations (see Schatschaschwili, cited above, § 113).

31. The Court notes that the applicant was convicted for killing his wife. In this respect, the testimony of B.C. was relied on by the domestic courts to establish the circumstances surrounding the applicant’s crossing of the border. These circumstances were also established on the basis of evidence produced by S.V. and K.T. (also border police officers, see paragraph 5 above), which was not contested by the applicant. Furthermore, it does not appear that the applicant disagreed about the manner in which he had crossed the border (see paragraphs 13 and 15 above).

32. The statement given by A.Z. was used by the domestic courts to establish the facts regarding the arrival of the applicant and his wife in Ohrid and their accommodation at his brother’s house. These circumstances were corroborated by the applicant (see paragraph 13 above).

33. In addition to the statements described above the domestic courts adduced other corroborating evidence. In particular, they relied on the testimony of Z.V. given before the investigating judge, at the initial trial and in the reopened proceedings (see paragraphs 7, 8 and 14 above). Z.V. stated that at the material time at the place of the murder he had seen a man kneeling near a car resembling the car of the applicant. The applicant was invited to cross-examine him, but he refused (see paragraph 14 above). The domestic courts also relied on the statements given by S.V. and K.T., the contents or veracity of which were never disputed by the applicant. Finally, they had at their disposal the photographs provided by the Albanian authorities. These photographs, the reliability of which was also never challenged by the applicant, confirmed that he had crossed the border on the material day and that his passport had visible traces of blood on it (see paragraph 9 above).

34. The Court cannot but note that albeit seeking to cross-examine B.C. and A.Z., the applicant never advanced any reasons, nor provided any explanation how their examination would strengthen his position. It was only in the proceedings before the Court that he specified for the first time the circumstances in respect of which they would have testified.

35. In view of the above, the Court considers that the statements by B.C. and A.Z. were not “sole” or “decisive” evidence for the applicant’s conviction (see, among others, Sellick and Sellick v. the United Kingdom (dec.), no. 18743/06, § 54, 16 October 2012; Horncastle and Others v. the United Kingdom, no. 4184/10, § 150, 16 December 2014; Dzelili v. Germany (dec.), no. 15065/05, 29 September 2009; and by contrast, see Paić v. Croatia, no. 47082/12, § 41, 29 March 2016). The defence was thus handicapped to a much lesser extent (see, mutatis mutandis, Dzelili, cited above).

36. Lastly, the Court considers that the applicant had the opportunity to give his own version of the events and cast doubt on the statements of B.C. and A.Z.

37. Against this background, the Court finds that the rights of the defence were not restricted to an extent incompatible with the guarantees provided in Article 6 §§ 1 and 3 (d). As a consequence, the Court finds that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaint under Article 6 § 1

38. The applicant complained that the domestic courts did not provide sufficient reasons for their judgments.

39. The Court examined this complaint. In view of the findings above and having regard to all the materials in its possession, it finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 October 2018.

Renata DegenerAleš Pejchal
Deputy RegistrarPresident

 

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