FIRST SECTION
DECISION
Application no. 32866/09
Mišo MIŠEVSKI against North Macedonia
and 2 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 3 September 2019 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having decided to join the applications,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. By a letter received on 2 February 2015 Ms Lidija Jakimovska, the applicant in case no. 817/10, notified the Court that on 24 November 2010 she had got married and had changed her name to Lidija Mladenovska. The Court will continue processing the application under the case name of Jakimovska v. North Macedonia. This corresponds to the applicant’s name as referred to in the domestic court proceedings at issue as well in her application lodged with the Court.
3. The Government of North Macedonia (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, succeeded by Ms D. Djonova.
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. At the relevant time the applicants were police officers stationed at the D. border crossing and employed by the Ministry of the Interior (“the Ministry”). The first and second applicants were police officers stationed at passport control and the third applicant was a shift supervisor (раководител на смена).
1. Investigation
6. On unspecified dates in 2007 and 2008 a criminal investigation was opened in respect of the applicants on suspicion of abuse of office (злоупотреба на службената положба и овластување). They were suspected of allowing overloaded lorries to enter the respondent State without being sanctioned in accordance with the relevant procedure under domestic law. It appears that the investigation was conducted separately in respect of each applicant.
7. In the course of the investigation, V.S. (a senior adviser in the Control and Professional Standards Unit within the Ministry), D.A. (the chief officer of the Regional Centre for Border Affairs (East) in the period between 20 October 2006 and 26 November 2007) and D.J. (a lawyer at the Public Enterprise for the Administration of State Property) were questioned as witnesses by an investigating judge in the presence of only a prosecutor. No evidence was submitted to suggest that the defence had been informed of the questioning.
8. V.S. had been working on the cases concerning professional misconduct of the police at the D. border crossing. She had been familiar both with the correct procedure regarding the mandatory inspection and sanctioning of lorries in the event of non-compliance with the weight restrictions under domestic law, which she explained in detail, and with the working practice at the D. border post. She clarified the particular duties of police officers in this regard, including the duty to inspect the detailed weight document issued at the weighbridge. She noted that the cases concerned overloaded vehicles which had not been recorded and sanctioned in accordance with the law and the Ministry’s instructions.
9. D.A. explained the procedure to be followed and the actions which the police officers were required to undertake to sanction non-compliance. He affirmed that the police were required to systematically inspect overloaded lorries and sanction each case of non-compliance in accordance with the relevant domestic regulations.
10. D.J. explained the procedure for weighing lorries at the weighbridge and the different types of document issued – a short and a detailed weight document, the former being issued at the request of the police. He confirmed that the computer system at the weighbridge underwent regular maintenance and servicing.
2. Criminal proceedings against the first applicant (Application no. 32866/09)
11. On 22 April 2008 the first applicant was indicted before the Kriva Palanka Court of First Instance (Основен суд Крива Паланка – “the first‑instance court”) on charges of abuse of office in relation to several instances of professional misconduct in the period between 14 November 2005 and 26 July 2006. The prosecutor proposed that certain evidence be admitted at trial, and requested that the court summon witnesses V.S., D.A. and D.J.
12. The first applicant denied the charges against him. He maintained that it was the duty of the customs officers to detect overloaded vehicles, which were afterwards sanctioned by the police. According to earlier practice, police officers were required to inspect only the short weight document for compliance with the weight restrictions, but later the practice had changed in that they were required to inspect the detailed document.
13. On 18 June 2008 the first-instance court convicted the first applicant as charged, giving him an eight-month suspended prison sentence and ordering him to compensate the State for the damage. It was established that the first applicant (together with two shift supervisors prosecuted in separate criminal proceedings) had abused his authority on eight occasions between 14 November 2005 and 26 July 2006. The first-instance court referred to the statements of V.S. and D.A. in order to determine the working methods of the police at the border in respect of overloaded vehicles and the first applicant’s omissions. The court also noted that the procedure to be followed by the police in respect of overloaded vehicles was clearly specified in the Ministry’s relevant practice instructions. The applicant’s work duties were determined on basis of other relevant internal regulations. From D.J.’s statement, the court determined the procedure and the documents issued at the weighbridge. It also admitted as evidence certificates confirming the proper functioning of the weighbridge. The fact that the first applicant had been on duty on the critical dates when overloaded lorries had crossed the borders unsanctioned was established on the basis of an expert report and vehicle weight documents. On the basis of all the evidence, the court found that the inspection and sanctioning of the overloaded vehicles had been the duty of the police, which had partly been confirmed by the first applicant’s own statement. It dismissed the material evidence proposed by the defence, finding that it contradicted the remaining evidence, which the court found to be consistent and coherent. The court further held that the applicant’s contention that it had been the customs officers’ duty to detect overloaded vehicles did not mean that he had been relieved of his duties.
14. The first applicant appealed, alleging substantive procedural flaws and errors of fact and law. He complained, without giving further explanation, that the trial court had violated his right to examine witnesses when, contrary to section 351 of the Criminal Procedure Act, it had decided to read out the pre-trial statements of V.S., D.A. and D.J., despite his objections. He disputed D.A.’s statement on the grounds that his testimony had been unclear and had concerned a period occurring after the relevant time, which was when his term in office as regional chief officer had begun. The applicant maintained that he had acted in compliance with the established practice at the D. border post and had not breached his duties. He also argued that the Ministry’s instructions had been addressed to the supervising officers and had not been made accessible to the police officers.
15. On 11 November 2008 the Skopje Court of Appeal (Апелационен суд Скопје – “the Court of Appeal”) dismissed the first applicant’s appeal and upheld the conviction. It considered that the first-instance court had made a comprehensive analysis of all the evidence and had correctly dismissed the first applicant’s defence. As to the complaint concerning the examination of witnesses, the Court of Appeal found that the first-instance court had correctly applied section 351(3) of the Criminal Procedure Act (Закон за кривичната постапка – пречистен текст, Official Gazette no.15/2005), which provided that the court could decide, after consulting the parties, to read out the statement of a witness or expert who was not present, irrespective of whether they had been summonsed to the hearing.
3. Criminal proceedings against the second applicant (Application no. 817/10)
16. On 19 May 2008 the second applicant was indicted (following a criminal complaint by the Ministry’s Control and Professional Standards Unit) before the first-instance court on charges of abuse of office. It was alleged that she (together with her superior officers) had abused her authority on several occasions between 12 January 2006 and 12 January 2007.
17. At the hearing held on 4 July 2008 the second applicant gave her statement. She denied the charges against her, maintaining that she had not received instructions to systematically inspect the lorries and sanction them if they were overloaded. In the past she had inspected the short weight document of the lorries and informed her supervisor if she detected an overloaded vehicle, but later the practice had changed in that she had had to inspect the detailed document. The applicant noted that customs officers were present when the lorries were weighed at the weighbridge and were obliged to report any overloading.
18. At the same hearing V.S. failed to appear, despite being properly summoned. However, D.A. and D.J. were present and examined by the parties. They maintained the statements they had given during the investigation. At the request of the defence A.A. (the commanding officer at the D. border post at the material time), was examined as a witness. He emphasised the close cooperation between the police and customs authorities and stated that overloaded vehicles were sanctioned on the basis of reports made by the customs authorities.
19. A hearing was held on 10 September 2008, to which V.S. was not properly summoned. The trial judge decided to read out the statement she had given before the investigating judge, despite the objections of the defence.
20. At a hearing held on 3 November 2008 I.C. (a representative from the Customs Authority) was examined as a witness at the request of the defence. The applicant’s lawyers gave closing arguments and reiterated the need to examine V.S. at the trial in order to clarify the applicant’s duties regarding the inspection of overloaded vehicles.
21. On the same day the first-instance court convicted the second applicant as charged. This judgment was quashed on 26 December 2008 by the Court of Appeal on the grounds that the trial judge had been acting as the investigating judge at the pre-trial stage.
22. In the resumed proceedings, at a hearing held on 27 February 2009 another trial judge admitted as evidence the statements of D.A. and D.J. given before the investigating judge and at the trial. It was also decided to admit as evidence V.S.’s pre-trial statement, even though there was no evidence that she had been properly summoned. The defence agreed with the admission of D.J.’s statement, but objected to the admission of the statements of V.S. and D.A.
23. On 4 March 2009 the first-instance court convicted the second applicant and gave her a seven-month suspended prison sentence, ordering her to compensate the State for the damage. It was established that the applicant had abused her authority on several occasions between 12 January 2006 and 12 January 2007. The first-instance court relied on the statements of V.S. and D.A., and the Ministry’s relevant practice instructions, in order to determine the procedure to be followed by police officers in respect of overloaded vehicles and the working practice of the police at the D. border post. The applicant’s work duties were determined on the basis of other relevant internal regulations. The procedure at the weighbridge was established from D.J.’s statement, and relevant certificates confirmed its proper functioning. The court also relied on an expert report, shift rotation records and vehicle weight documents to establish that the applicant had been on duty when overloaded vehicles had entered the State unsanctioned. It dismissed the evidence proposed by the defence, finding that it contradicted the remaining evidence, which the court found to be consistent and coherent.
24. The second applicant appealed, complaining of errors of fact and law and about the assessment of the evidence. She further complained that she had been unable to examine witnesses in the course of the trial, in particular V.S. and D.A. She argued that the working practice at the D. border post had been subject to regular reviews by the Ministry, which had found no irregularities. V.S. and D.A. had not been involved in overseeing her work. She also contended that the Ministry’s practice instructions had not been sufficiently clear. The applicant disputed D.J.’s statement, arguing that it had no evidentiary value.
25. On 12 May 2009 the Court of Appeal dismissed the applicant’s appeal and upheld the conviction. It held that the trial court had made a comprehensive analysis of all the available evidence and had correctly established all the relevant facts. The applicant’s duties and omissions had been established on the basis of the statements of V.S. and D.A. as well as on the relevant internal regulations, which had been sufficiently clear on the matter.
4. Criminal proceedings against the third applicant (Application no. 19955/11)
26. On 16 June 2008 the third applicant was indicted in the first-instance court on charges of abuse of office.
27. The third applicant maintained his innocence. His position had been that the police had sanctioned the overloaded vehicles on the basis of a notification by the customs officers. At the relevant time the police officers had intermittently inspected the vehicles’ weight documents, although there were instructions indicating that it had been their duty to check for compliance with the weight restrictions.
28. After a remittal, on 23 September 2009 the first-instance court convicted the third applicant as charged and gave him a ten-month suspended prison sentence. The court referred, among other evidence, to the statements of V.S., D.A. and D.J., who, as noted in the judgment, were examined at the trial.
29. The applicant appealed, complaining, inter alia, that he had not been provided with an opportunity to examine V.S., D.A. and D.J.
30. On 21 January 2010 the Court of Appeal allowed the applicant’s appeal and remitted the case for fresh consideration. It considered that the first-instance court had failed to establish all the relevant facts. It further held that the defendant had not been given an opportunity to examine witnesses at the trial, as was evident from the hearing records, and that in the resumed proceedings it had to be ensured that the defendant’s rights were respected with regard to the examination of witnesses.
31. In the resumed proceedings, on 28 April 2010 the first-instance court convicted the third applicant as charged and gave him a ten-month suspended prison sentence, ordering him to compensate the State for the damage. It was established that the applicant had abused his authority on fifty-seven occasions between 11 August 2005 and 4 October 2006, by allowing the unsanctioned entry of overloaded vehicles. The first-instance court referred to the statements of the witnesses V.S., D.A. and D.J., who, as noted in the judgment, were examined at the trial. It considered that their statements had been supported by the other evidence, including the relevant practice instructions, internal regulations, expert reports by the Forensic Bureau (Биро за судски вештачења), the expert’s statement at the trial and final judgments from other criminal proceedings against other police officers in which they had been convicted on identical charges. The court dismissed the third applicant’s defence and the material evidence proposed by him, noting that they had been contradictory with the other evidence.
32. The applicant appealed, complaining, inter alia, that he had not been provided with an opportunity to examine V.S., D.A. and D.J. at the trial, without indicating the matters on which he had wanted them to be examined.
33. On 28 September 2010 the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment, finding that the trial court had correctly established the relevant facts and assessed the evidence. It held that the applicant’s arguments were of no relevance for the determination of the relevant facts since the available evidence clearly supported the finding that he had failed to comply with his official duties.
COMPLAINT
34. The applicants complained that they had not had an opportunity to examine witnesses V.S., D.A. and D.J. at the trial.
THE LAW
35. The applicants complained that they had not had an opportunity to examine V.S., D.A. and D.J. at the trial, contrary to Article 6 §§ 1 and 3 (d) of the Convention, the relevant part of which reads 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 parties’ submissions
36. The Government submitted that the applicants had had a fair trial. The applicants had had the opportunity to propose evidence and actively participate in the proceedings. The Government considered that the statements given by the witnesses during the investigation and read out at the trial had been neither the sole nor decisive evidence against the applicants. In this connection, they argued that other evidence had been admitted at trial, which had supported the applicants’ guilt. The domestic courts had considered all the available evidence and given sufficient reasons for their decisions.
37. The applicants complained that their right to a fair trial, including the right to examine witnesses, had been breached because they had not had the opportunity to examine V.S., D.A. and D.J. in the course of the proceedings, whose evidence had been decisive for their convictions. Although the domestic courts had referred to written material in order to establish the working methods of the police at the border crossing, it could not replace the testimony provided by those witnesses. The relevant practice instructions for their work and descriptive lists of work duties for their posts had either been unavailable to them or not sufficiently specific.
B. The Court’s assessment
1. General principles
38. 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 are set out in the cases of Al‑Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119–147, ECHR 2011; and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 111–131, ECHR 2015). These principles were comprehensively summarised in the case of Seton v. the United Kingdom (no. 55287/10, §§ 58 and 59, 31 March 2016).
39. It follows from this case-law that the Court must examine: (i) whether there was a good reason for admitting the evidence of an absent witness; (ii) whether the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction, or it carried significant weight and its admission might have handicapped the defence; and (iii) whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, viewed as a whole, was fair.
2. Application of these principles to the present cases
(a) As regards the first and third applicant
40. The respondent Government did not dispute the fact that in the case of the first and third applicants none of the witnesses had been present at the trial (see paragraph 36 above). Furthermore, they did not submit any evidence (such as records of hearings) that would indicate the contrary. The Court notes that V.S. and D.A. were employees of the Ministry, and D.J. an employee of the Public Enterprise for the Administration of State Property ‑ they were all therefore easy to find and contact. The domestic courts did not provide any reason for the witnesses’ absence. In the circumstances, the Court finds that no good reason was convincingly shown for the non-attendance of the witnesses and for the admission of their statements as evidence. 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 does constitute an important factor to be weighed in the overall balance together with the other relevant considerations (see Schatschaschwili, cited above, § 113).
41. The Court notes that the applicants’ convictions were based on the domestic courts’ findings that they had failed to sanction overloaded vehicles crossing the border in accordance with the relevant domestic regulations and their official duties. In their statements before the domestic courts, the applicants conceded that the police officers had inspected the vehicles’ weight documents for compliance with the weight restrictions and acknowledged that it had been the duty of the police to sanction non-compliance (see paragraphs 12 and 27 above). The evidence produced by the witnesses at issue formed part of a considerable body of evidence (the practice instructions, internal regulations and expert reports), attesting to the fact that the applicants had failed to comply with their duties (see paragraphs 13 and 31 above). Nevertheless, the domestic courts referred to the statements of these witnesses in order to establish the relevant procedure concerning the inspection and sanctioning of overloaded vehicles. In such circumstances, the Court considers that the evidence produced by these witnesses carried a certain weight and it will therefore determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence (see Seton, cited above, § 64).
42. The Court finds that, taking note of the actual weight of the statements of the absent witnesses, the possibility for the applicants to propose different evidence in order to challenge and rebut the absent witnesses’ statements could have counterbalanced any potential difficulties imposed on the defence (see in this regard Aigner v. Austria, no. 28328/03, § 43, 10 May 2012). In this connection, it observes that they were able to state their own account regarding the practice at the border crossing, to propose evidence and point out to any incoherence in the statements of the absent witnesses. These arguments were dismissed by the domestic courts, after they had carried out a comprehensive analysis of the available material (see paragraphs 13 and 31 above). In their appeals in the domestic proceedings, the applicants did not indicate the matters on which they wanted these witnesses to be examined (see paragraphs 14 and 32 above).
43. Other significant safeguards are the domestic courts’ cautious approach to the untested evidence (see Schatschaschwili, cited above, § 126) and the availability at the trial of corroborative evidence supporting the untested witnesses’ statements (ibid., § 128). In the present cases, the domestic courts examined the coherence of the absent witnesses’ statements in relation to the other available evidence. The Court therefore considers that the domestic courts treated the absent witnesses’ statements in a careful manner.
(b) As regards the second applicant
44. The Court notes that D.A. and D.J. were examined at the hearing held on 4 July 2008 in the presence of the second applicant and her lawyer (see paragraph 18 above). She had an opportunity to confront those witnesses and cross-examine them. Accordingly, the Court finds that the admission as evidence of the statements of these two witnesses did not breach the second applicant’s right to a fair trial guaranteed under Article 6 of the Convention. It follows that this part of the application is inadmissible for being manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
45. As regards the admission into evidence of V.S.’s pre-trial statement and her absence from the trial, the Court finds that similar considerations apply as in the case of the other two applicants (see paragraphs 40–43 above). The second applicant was able to give her own version of events and propose different evidence in order to rebut V.S.’s statement, including the testimony of A.A. and I.C., who were examined at the trial as witnesses for the defence (see paragraphs 18 and 20 above). Other significant safeguards were the availability at the trial of corroborative evidence supporting the untested witness’ statement, including the testimony of D.A., who was present at the trial.
(c) Conclusion
46. In such circumstances, noting the domestic courts’ rigorous assessment of all the evidence, which showed no sign of arbitrariness, the Court finds that the absence of V.S. (in the case of all three applicants), D.A. and D.J. (in the case of the first and third applicants) from the trial and the admission of their statements into evidence did not affect the overall fairness of the criminal proceedings against the applicants and did not amount to a violation of the applicants’ Article 6 rights.
47. It follows that these complaints are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 26 September 2019.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
1
32866/09
16/06/2009
Mišo MIŠEVSKI
16/06/1970
Kriva Palanka
Macedonian/citizen of the Republic of North Macedonia
Trajče TOROV
2
817/10
23/12/2009
Lidija
JAKIMOVSKA (MLADENOVSKA)
15/06/1977
Kriva Palanka
Macedonian/citizen of the Republic of North Macedonia
3
19955/11
28/03/2011
Grozde BOŠKOVSKI
24/10/1965
Kriva Palanka
Macedonian/citizen of the Republic of North Macedonia
Full & Egal Universal Law Academy