Communicated on 4 April 2014
FIRST SECTION
Application no. 45959/09
Slobodan MITROV
against the former Yugoslav Republic of Macedonia
lodged on 17 August 2009
STATEMENT OF FACTS
The applicant, Mr Slobodan Mitrov, is a Macedonian national who was born in 1974 and lives in Strumica. He is represented before the Court by Mr P. Dokuzov, a lawyer practising in Štip.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 November 2006 the applicant was involved, as the driver of a car, in a traffic accident in which an eighteen-year-old woman died. The young woman was the daughter of Judge M.A. in the criminal section of the Strumica Court (“the trial court”). At the time, it appears that there were four criminal judges at the trial court.
On an unspecified date, an investigating judge commissioned an expert report (“the first expert report”) from a mechanical engineer regarding the circumstances in which the accident had happened and the speed at which the applicant had been driving at the time of the accident.
On 4 April 2007 the applicant’s representative made a written submission to the court, complaining that he had not been allowed to be present at the investigation when three witnesses and an expert had been heard. He further objected to the first expert report.
On 20 April 2007 the public prosecutor charged the applicant with “severe crimes against the safety of people and property in traffic” (тешки дела против безбедноста на луѓето и имотот во сообраќајот). On 15 May 2007 a three-judge panel of the trial court, presided over by Judge T.D., dismissed the applicant’s objection (приговор) lodged against the indictment.
In June 2007 a second expert report was drawn up. It was not ordered by the trial court, but was drawn up at the applicant’s request. According to the applicant, the report concerned the speed at which the applicant had been driving.
On 12 July 2007 the applicant requested the withdrawal of all judges in the trial court who acted in criminal proceedings, given that the case concerned a traffic accident in which the daughter of a judge in the criminal section of the court had died. On the same day the president of the court dismissed that request in respect of judges C.K. and T.D., who had been appointed as members of the panel in the applicant’s case, after they had stated that they would act conscientiously, impartially and responsibly. C.K. had further stated that the fact that the daughter of her colleague had died in the accident which was the subject of the proceedings would not influence her adjudication. The president of the court further rejected as inadmissible the request concerning two other judges (G.M. and S.D.), given that they had not been appointed to act in the applicant’s case (see Relevant domestic law below).
On 13 July 2007 the president of the court upheld the applicant’s second request for the withdrawal of Judge T.D., given that he had been sitting in the three-judge panel which had dismissed the applicant’s objection to the indictment.
On 31 January 2008 an update to the first expert report (“the updated expert report”) was issued, following a court order, by three traffic engineers from the office which had prepared the first expert report. The report concerned the circumstances in which the accident had happened and the speed at which the applicant had been driving at the time of the accident.
At the trial on 4 March 2008 the court heard one of the experts who had drawn up the updated expert report. Statements from five eyewitnesses and two experts, which had been given at the trial on 19 October 2007, were read out. The court dismissed as irrelevant the applicant’s request for three witnesses to be heard again. It further dismissed the requests by the applicant for the expert who had prepared the second expert report to be heard; for a reconstruction to be held at the crime scene; for a third expert report (супервештачење); and for another alleged eyewitness to be heard. Concerning the eyewitness, the court found that the proposal to hear him was intended to prolong the proceedings. In respect of the other requests, it found that the circumstances on which those evidence were proposed had already been established.
On 5 March 2008 the court convicted the applicant and sentenced him to four years and six months’ imprisonment. The judge panel was presided over by Judge C.K. and included another judge, V.D., and three lay judges. It based its judgment on the updated expert report and the oral evidence. It did not address the second expert report.
The applicant appealed against the judgment, arguing, inter alia, that the case should have been transferred to another court, and that Judge C.K. had previously been a clerk (стручен соработник) of Judge M.A. (the victim’s mother) for several years. He complained that the trial court had not provided any reasoning in respect of the second expert report, and also complained about the refusal of the trial court to admit evidence proposed by him. He argued that the updated expert report was identical to the first report and was contradictory to the second expert report as regards the speed at which the applicant had been driving at the time of the accident.
On 24 September 2008 the Štip Court of Appeal dismissed the applicant’s appeal, upheld the prosecutor’s appeal, and increased the sentence to six years’ imprisonment. It reiterated that the president of the trial court had dismissed the request for withdrawal of the judges. It further held that the second expert report had not been prepared following a court order, that the experts had not been warned of their duties and were not on oath, that the court had not established which facts should have been addressed by the report, that the experts had not “reviewed the subject of the report on the court’s authority” and that it was for the trial court to decide whether it would accept it. As regards the applicant’s complaint that evidence proposed by him had not been admitted at the trial, the Court of Appeal held that this did not amount to a violation of the applicant’s right to defence, as the trial court was not obliged to adduce all proposed evidence.
On 13 January 2009 the Supreme Court dismissed a request by the applicant for an extraordinary review of the lower courts’ judgments. It endorsed the lower courts’ findings and reasoning.
B. Relevant domestic law
Under section 38 § 4 of the Criminal Proceedings Act of 1997 (“the Act”) applicable at the material time, parties could request the withdrawal only of the judge or lay judge who was sitting in that particular case.
Under section 31, if the competent court was prevented from adjudicating for reasons of facts or law, it had to notify the court at the level immediately above; that court would, after hearing the public prosecutor, appoint another competent court ratione materiae, from its region.
Under section 32, the court at the level immediately above could assign a case to another competent court from its region if that court could more conveniently conduct the proceedings, or for other important reasons. It could do so at the request of the investigating judge, the trial judge or the president of the panel, or of the public prosecutor acting before the court which decided on the transfer of the competence ratione loci, in cases when the proceedings have been initiated by the public prosecutor.
COMPLAINTS
The applicant complains under Article 6 of the Convention that Judge C.K., as all criminal judges of the trial court, lacked the necessary impartiality to adjudicate the case. He also alleges a violation of the principle of equality of arms, since the courts refused to admit evidence proposed by him.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention? In particular,
- was the adjudicating panel of the trial court, at which Judge M.A. held an office at the relevant time, impartial, as required by Article 6 of the Convention?
- was the principle of equality of arms respected by the domestic courts, given their refusal to admit verbal and material evidence proposed by the applicant?
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