Communicated on 19 November 2014
FIRST SECTION
Application no. 32866/09
Miso MIŠEVSKI against the former Yugoslav Republic of Macedonia
and 3 other applications
(see list appended)
The applicants are Macedonian nationals. The applicants’ personal details are set out in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants in applications nos. 32866/09, 817/10 and 12977/10 were border police officers when the events described below took place, whereas the applicant in application no. 19955/11 was the head of shift (раководител на смена). On unspecified dates in 2007 and 2008, an investigation was opened against them on suspicion of abuse of office, namely that they had allowed overloaded trucks to enter in the respondent State and to use the public highway without firstly having obtained the necessary licence. In 2008, 2009 and 2010, the Kriva Palanka Court of First Instance (“the trial court”), in separate sets of criminal proceedings described below, convicted the applicants and sentenced them to suspended prison terms. It found that the applicants had acted contrary to the applicable rules; namely, they had not prohibited overloaded vehicles from circulation, had not fined the drivers and had not instructed them to obtain a licence for extraordinary transport or to unload the excessive load.
1. Application no. 32866/09
On 18 June 2008 the trial court, sitting in a single-judge formation, convicted the applicant and sentenced him to a suspended prison term of eight months.
The court relied, inter alia, on the statements of witnesses V.S. and D.A. (both employees of the Ministry of Interior) given on 20 October 2006 and 26 November 2007, respectively, in establishing the usual mode of operation of the border police officers. In dismissing the applicant’s arguments that the customs officers, instead of police officers, had been responsible for controlling the weight of the trucks, the court relied on the statements of D.A., V.S. as well as of D.J. (employee of the Public Enterprise for Administering State Property).
The applicant appealed arguing that the statements of witnesses D.A., V.S. and D.J. had been read out at the trial, despite his explicit objection in this respect; that he had not attended their examination and had been prevented to cross-examine them.
On 11 November 2008 the Skopje Court of Appeal (“the appeal court”) dismissed the applicant’s appeal and upheld the trial court’s judgment. It found that under domestic law the trial court could decide to authorise the reading out of the record of a witness’ previous statement, regardless of whether the witness had been summoned to the trial. The trial court had correctly decided that the witnesses’ statements be read out.
On 29 January 2009 the State Public Prosecutor informed the applicant that there were no grounds to use a request for protection of legality (барање за заштита на законитоста).
2. Application no. 817/10
On 3 November 2008 Judge O.J., acting as a single judge of the trial court, convicted the applicant. On 26 December 2008 the appeal court quashed the first-instance judgment and remitted the case.
Judge A.D., who was assigned in the applicant’s case after the remittal, adjourned a hearing fixed for 13 January 2009 due to, inter alia, the absence of the applicant’s representatives and witnesses V.S., D.A. and D.J.
At a hearing held on 27 February 2009, the trial court read out V.S.’s statement given during investigation on 21 November 2007, D.A.’s statements given during investigation on 5 December 2007 and at the trial on 4 July 2008 (before the remittal) and D.J.’s statements given during the investigation on 12 December 2007 and at the trial on 4 July 2008 (before the remittal). The applicant objected to the reading out of V.S. and D.A.’s statements, but consented to the reading out of D.J.’s statement.
On 4 March 2009 the trial court convicted the applicant and sentenced her to suspended prison term of seven months. It relied on V.S.’s, D.A.’s and D.J.’s witness statements.
The applicant appealed, complaining that the trial court had dismissed the request to hear V.S. and D.A. She argued that their statements had been inconsistent; that V.S. had not had sufficient information on the applicant’s work and that she (V.S.), as an employee of the Sector of Internal Control and Professional Standards of the Ministry, had worked on the cases against police officers from the applicant’s police station.
On 12 May 2009 the appeal court dismissed the applicant’s appeal and confirmed the trial court’s judgment. It held that the trial court had correctly established the facts, relying, inter alia, on the statements of V.S., D.A. and D.J.
3. Application no. 12977/10
After one remittal, on 30 April 2009 the trial court convicted the applicant and sentenced him to a six months’ suspended prison term. It found that the applicant had failed to prohibit eight overloaded trucks from circulation, some of which together with his supervisor (раководител на смена) who is the applicant in application no. 19955/11 (please see below). It relied inter alia on V.S., D.A. and D.J.’s statements. The applicant appealed. On 30 June 2009 the appeal court (in the same panel as in applications nos. 32866/09 and 817/10) dismissed the applicant’s appeal and upheld the first-instance judgment.
4. Application no. 19955/11
On 9 December 2008 the trial court convicted the applicant. It relied, inter alia, on the statements of V.S., D.A. and D.J., who as noted in the judgment, were heard at the trial. On 2 April 2009 the appeal court upheld the applicant’s appeal and remitted the case. It found that the trial court had not established which acts the applicant had been obliged to undertake, but he had failed to perform.
On 23 September 2009 the trial court again convicted the applicant, again relying on the statements of V.S., D.A. and D.J. It is noted in the judgment that these witnesses were heard at the trial. On 21 January 2010 the appeal court quashed the first-instance judgment on several grounds, including the impossibility of the applicant to examine the witnesses at the trial, which had been evident from the record of the trial.
On 28 April 2010 the trial court again convicted the applicant and sentenced him to a suspended prison term of ten months. It relied on the statements of V.S., D.A. and D.J., noting that they had been heard at the trial. The applicant appealed, arguing inter alia that he had been prevented to put questions to the witnesses at the trial and that the trial court had ignored the instructions of the appeal court provided in its decision of 21 January 2010. On 28 April 2010 the appeal court (in a different panel than the panel which had adopted the decision of 21 January 2010) confirmed the first-instance judgment. It found that the trial court had correctly established the facts of the case and applied the substantive law. It did not give any reasoning as to the complaint concerning the failure to hear the witnesses at the main trial.
COMPLAINT
The applicants complain that witnesses were heard during the investigation in their absence. Furthermore, the courts failed to examine them at the trial.
QUESTION to the parties
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, were the applicants able to examine the witnesses in a manner which did not restrict their rights to a fair trial to an extent incompatible with these provisions?
APPENDIX
No.
Applications
nos.
Lodged on
Applicant name
date of birth
place of residence
32866/09
16/06/2009
Miso MIŠEVSKI
16/06/1970
Kriva Palanka
817/10
23/12/2009
Lidija JAKIMOVSKA
15/06/1977
Kriva Palanka
12977/10
26/02/2010
Zoran VELIĆKOVSKI
11/09/1969
Kriva Palanka
19955/11
28/03/2011
Grozde BOŠKOVSKI
24/10/1965
Kriva Palanka
Full & Egal Universal Law Academy