Communicated on 12 February 2016
FIRST SECTION
Application no. 18669/08
Ljuben PAUNOSKI
against the former Yugoslav Republic of Macedonia
lodged on 14 April 2008
STATEMENT OF FACTS
The applicant, Mr Ljuben Paunoski, is a Macedonian national who was born in 1958 and lives in Skopje. He is represented before the Court by Mr V. Krčinski, a lawyer practising in Skopje.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant was Minister of Defence between July 2000 and May 2001. Mr K. Gj. was undersecretary (подсекретар) in the Ministry of Defence (“the Ministry”) at the time. Mr Lj. P. and Mr V.T. are the applicant’s father-in-law and brother-in-law respectively.
In spring 2001 an armed conflict broke out in the respondent State.
2. Criminal proceedings against the applicant
On an unspecified date in 2001, an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against the applicant, Mr K.Gj., Mr Lj.P. and Mr V.T., because of a reasonable suspicion of abuse of office (злоупотреба на службена положба и овластување).
On 26 October 2001 the investigating judge took oral evidence from Mr Z.S. in the presence of the public prosecutor. The applicant and his lawyer did not attend the questioning. (As established in a separate set of criminal proceedings against Mr Z.S., which ended on 31 March 2009, the company T., represented by Mr Z.S., had concluded a contract with the Ministry of Defence for food procurement in October 2000).
On 23 November 2001 the public prosecutor lodged an indictment with the trial court, charging the applicant and Mr K.Gj. with abuse of office, and Mr Lj.P. and Mr V.T. with allegedly inciting them to commit such an offence.
At a hearing held on 11 September 2003, the trial court heard Ms M.S. (Mr Z.S.’s wife) and read out the statement given by Mr Z.S. on 26 October 2001.
At a hearing held on 30 September 2003, the trial court dismissed an application by the applicant for Mr Z.S. to be examined in court, finding that the latter lived at an unknown address in the United States of America.
On 3 November 2003 the trial court convicted the applicant, Mr K.Gj. and Mr V.T. as charged. It found that the applicant had ordered Mr K.Gj. to conclude two contracts with the company HS on behalf of the Ministry, contrary to the rules on public procurement. The first contract had concerned the procurement of food, while the second contract had been for the construction of buildings for the Ministry. When the contracts had been concluded (in December 2000), HS had been owned by Mr Z.S. and Ms M.S., who had sold it to Mr Lj.P. and Mr V.T. in February 2001. The court further found that considerable funds had been transferred from the Ministry to HS in December 2000 as an advance payment for the fulfilment of the contracts. The court relied on a considerable amount of oral and material evidence, including the statement given by Mr Z.S during the investigation.
On 2 March 2004 the Skopje Court of Appeal (“the appellate court”) upheld an appeal by the applicant and quashed the trial court’s judgment. It found, inter alia, that the trial court had not made sufficient efforts to hear Mr Z.S. who, as the owner of HS, had been the key witness. It also found that the trial court had not adduced evidence to establish whether the armed conflict of 2001 had prevented the fulfilment of the construction contract and that it had not established whether the contracts had been partly fulfilled. It instructed the trial court to determine whether the food-procurement contract had been of extreme urgency and whether the construction contract had involved issues of security (безбедносен карактер).
On 10 November 2006 the trial court again read out Mr Z.S.’s statement of 26 October 2001. The accused all raised objections to the statement. At that hearing and later, on 17 November 2006, they made an application for the trial court to take oral evidence from several witnesses and an expert, some of whom had provided written evidence, and for it to adduce material evidence. The applicant argued that some of the material evidence he wished to submit would help establish that there had been objective reasons – the beginning of the conflict and the criminal proceedings – for not fulfilling the contracts. The trial court refused to admit any of the applicant’s proposed submissions. In respect of the proposal to hear Mr Z.S., it found that he had been in the United States of America for an extended period of time and it would be difficult to produce him for the trial.
On 29 December 2006 the trial court again convicted the applicant and sentenced him to three years and six months’ imprisonment. It relied on the considerable amount of evidence at its disposal, including Mr Z.S.’s statement. It repeated its reasons for refusing to hear him at the trial. It further held that the rest of the evidence proposed for submission had not been related to the specific events subject to the criminal proceedings and had been intended to prolong the proceedings.
The applicant appealed, arguing that the trial court had dismissed all his applications to adduce evidence and had failed to hear Mr Z.S.
On 19 September 2007 the appellate court upheld the trial court’s judgment. It referred to the statements of Mr Z.S. and Ms M.S. to establish the manner in which HS had been used in the crimes. The appellate court further observed that the evidence the accused had wanted to present had been aimed at proving that there had been objective reasons why the construction contract could not be fulfilled, but found that the trial court had correctly dismissed those applications, as it had been irrelevant for the criminal proceedings whether and to what extent the contracts had been fulfilled.
The applicant applied for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда), complaining again about the failure to hear Mr Z.S. at the trial and of a violation of the principle of equality of arms under Article 6 of the Convention, on the grounds that all his applications to adduce evidence had been dismissed.
On 20 May 2008 the Supreme Court upheld the lower courts’ judgments. It found, inter alia, that the security situation in the respondent State had not directly related to the events in question. It further found that the refusal to admit evidence adduced by the applicant had not violated the applicant’s right to defence, nor had it affected the lawful and correct adjudication of the trial court, as the applications to adduce evidence had evidently been aimed at prolonging the proceedings.
On 25 November 2009 and 17 May 2010 the appellate court dismissed with final effect the applicant’s requests for the criminal proceedings to be reopened.
3. Public statements and media coverage
In a statement published in the Internet edition of a daily newspaper on 24 April 2001, the then Prime Minister stated, inter alia, that “in the last three or four months, 11 million marks have been transferred illegitimately, without any tenders or procedures, to the accounts of the companies which have been publicly mentioned, the employees of which are closely related to the Minister of Defence [the applicant])”. He further stated that a commission of the then governing party had been established to discuss the issue with the applicant and that “the biggest part of these, still unconfirmed facts” had been raised by a former employee of the Ministry.
The criminal proceedings against the applicant received extensive coverage in the media.
COMPLAINTS
The applicant complains under Article 6 of the Convention of the alleged unfairness of the criminal proceedings against him. In particular, he complains about the refusal of the domestic courts to hear Mr Z.S. at the trial and to admit evidence proposed by him, as well as about the length of the criminal proceedings. He further complains of lack of impartiality of the trial judge and alleges a violation of the presumption of innocence under Article 6 § 2 and of his defence rights under Article 6 § 3.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 of the Convention?
2. In particular,
- was the failure of the domestic courts to hear oral evidence from Mr Z.S. at the trial, compatible with Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention?
- was the principle of equality of arms respected in view of the domestic courts’ refusal to admit evidence proposed by the applicant?
3. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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