Communicated on 23 February 2016
FIRST SECTION
Application no. 52874/10
Nevzat ZIBERI against the former Yugoslav Republic of Macedonia
and 5 other applications
(see list appended)
The applicants, Mr Nevzat Ziberi (“the first applicant”), Mr Šehir Ziberi (“the second applicant”), Mr Izmit Ameti (“the third applicant”), Mr Megdi Islami (“the fourth applicant”), Mr Habib Ameti (“the fifth applicant”) and Mr Florim Ameti (“the sixth applicant”) are Macedonian nationals. The applicants’ personal details are set out in the appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On 7 November 2007 the police undertook an operation in the village of Brodec to apprehend suspected terrorists. There was an exchange of gunfire in which several of the suspected terrorists died.
On the same day, the applicants were arrested and an in-situ inspection was carried out. A video recording of the inspection was also prepared. A large quantity of weapons was found on-site. The investigating judge present at the inspection ordered that expert reports be drawn up in order to identify the substance found on the applicants’ clothes and the quantity and type of weapons discovered.
On 27 February 2008 an indictment was lodged against the applicants and twelve other persons. The applicants were charged with the crimes of terrorism and unlawful possession of weapons. The indictment proposed that a number of expert reports drawn up by the Ministry of the Interior (“the Ministry”) be admitted in evidence at the trial.
At a hearing held on 19 May 2008, the representative of the third, fifth and sixth applicants requested the Skopje Court of First Instance (“the trial court”) that the expert reports of the Ministry be excluded from the case file. The court refused this request, finding that those reports had been drawn up on the basis of court orders. It further stated that both the Supreme Court and the Court had held that it was not unlawful to use in criminal proceedings evidence produced by the Ministry of the Interior. All of the accused had been informed of their rights upon arrest. The accused were free to submit their own supporting evidence.
On 11 July 2008 the trial court convicted the applicants of terrorism and unlawful possession of weapons and sentenced each of them to ten years’ imprisonment, with the exception of the fifth applicant, who was sentenced to twelve years’ imprisonment. The trial court relied on an expert ballistics report drawn up by the Ministry according to which gunpowder residue had been found on the applicants’ hands and/or clothes. In its judgment, the trial court also referred to statements which the experts (who were employees of the Ministry) had given at the trial in the presence of the applicants and their representatives. The trial court further found that “some of the accused ... [had] photographed and filmed themselves with automatic weapons in [their] hands, performing [military] exercises ...”.
The trial court dismissed the applicants’ objections regarding the quality of the expert report on the powder particles and the alleged lack of impartiality of the experts on the following grounds: the reports had been drawn up on the order of the investigating judge; they had not been obtained through undue influence; the experts had had no contact with the applicants except when they had collected the relevant material, which had happened in the presence of the investigating judge and the public prosecutor during the in-situ inspection and had been filmed; and the reports had not constituted the sole evidence in respect of the facts of the case. The trial court further found that the material for the analysis had already been collected and analysed and could not have been restored to its original state and submitted for a fresh examination through a different method. The same method had been used by the Forensic Institute (which was not linked to the Ministry) to analyse the traces of gunpowder found on the corpses; the Forensic Institute had reached the same conclusion regarding the presence of the gunpowder residue. The trial court acknowledged that the method used by the Ministry’s experts “could be” outdated, but trusted the experience and knowledge of the experts who had drawn up the reports. It referred to the Court’s judgment in Stoimenov (Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007), but found it inapplicable to the circumstances of the present case, given that the expert reports had been drawn up under a court order and that it had been impossible to restore the collected material to its original state.
On the basis of the expert ballistic reports, the trial court concluded that the accused had used firearms or had been in close proximity to someone who had fired a weapon. It further relied on a video in which the first applicant was seen firing a weapon and on photographs in which the first and fifth applicants were depicted holding automatic weapons. It also referred to the statement that the fourth applicant had given during the investigation, in which he named the first, fifth and sixth applicants and himself as members of the group which had fired the weapons in question on the material day. The trial court also stated that some bullets had been found secreted in the clothes of the sixth applicant. Relying on the statement that the third applicant made during the investigation, it found that the third applicant had known some of the other accused and that one of them (who is not an applicant) was the commander of the group. The fifth applicant had also confirmed during the investigation that he was a member of the group and that he had known its leaders. The trial court noted that the use of weapons was not an element of the crimes in question, but that it had helped the court to conclude that all of the accused had actively participated in the realisation of the group’s plan.
In their appeals, the applicants complained, inter alia, that the facts of the case had been established on the basis of the expert report drawn up by the Ministry, which lacked impartiality as it was the same body that had carried out the operation that had led to their arrest. They also challenged the accuracy of the reports.
On 24 November 2008 the Skopje Court of Appeal (“the appellate court”) upheld the trial court’s judgment and endorsed its findings regarding the expert reports and Stoimenov. It found that the expert reports had been drawn up on the basis of the investigating judge’s order and that the reports had been prepared by the relevant State bodies. It reiterated that the expert reports had not constituted the sole evidence in the case and referred to the statements given by the experts at the trial.
The first, second, fifth and sixth applicants lodged with the Supreme Court requests for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда). The first and second applicants complained, inter alia, about the refusal of the trial court to commission an alternative independent expert report.
On 16 February 2010 the Supreme Court dismissed those requests, finding that the expert reports had been drafted by competent experts who had applied adequate scientific methods and that the expert reports had not constituted the sole evidence in the case but that the lower courts’ judgments had been based on other material and oral evidence.
COMPLAINT
The applicants complain under Article 6 of the Convention of a violation of the principle of equality of arms, in that they were convicted on the basis of the expert reports drawn up by the Ministry of the Interior.
QUESTIONS
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the fairness of the proceedings adversely affected when the domestic courts admitted in evidence and relied on the expert reports drawn up by the Ministry of the Interior?
APPENDIX
No.
Application
no.
Lodged on
Applicant –
name and
date of birth
Represented by
52874/10
07/09/2010
Nevzat ZIBERI
01/01/1978
Miralem ASANI
52882/10
07/09/2010
Šehir ZIBERI
01/01/1978
Miralem ASANI
55881/10
07/09/2010
Izmit AMETI
15/12/1952
Taip ELEZI
55925/10
07/09/2010
Megdi ISLAMI
15/12/1952
Taip ELEZI
55932/10
07/09/2010
Habib AMETI
09/11/1981
Taip ELEZI
56401/10
28/09/2010
Florim AMETI
21/03/1984
Taip ELEZI
Full & Egal Universal Law Academy