Communicated on 3 September 2014
FIRST SECTION
Application no. 26711/07
Stanislava POLETAN against the former Yugoslav Republic of Macedonia
and 2 other applications
STATEMENT OF FACTS
Ms Stanislava Poletan (“the first applicant”) (applications nos. 26711/07 and 32786/10) and Mr Alija Azirovik (“the second applicant”) (application no. 34278/10), are Macedonian nationals, who were born in 1968 and 1973 respectively and currently serve a prison sentence in Skopje Prison. The first applicant is represented before the Court by Mr D. Dangov and the second applicant, by Mr F. Medarski, both lawyers practising in Skopje.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Background of the case
The case concerns criminal proceedings against the applicants concerning trafficking of around 435 kilograms of cocaine hidden in transparent, nylon packs, soaked into hermetically closed cans of white wall paint. The cans were ordered by a company owned and managed by the first applicant, registered in Belgrade, Serbia, where she lived at the time. She contracted the second applicant, who worked as a driver in a family-run transport company, to transport the cans from the port of Bar, Montenegro where they arrived by boat from Venezuela, to Greece, transiting through Kosovo[1] and the respondent State. On 6 January 2007 the second applicant reached the Kosovo-Macedonian border crossing. The truck was additionally sealed by the Macedonian Customs and parked overnight on the customs terminal. The second applicant went home in Skopje where he spent the night. The next morning on 7 January 2007 he returned to the customs terminal for a detailed check and completion of the customs procedures. At that point the cocaine was discovered and he was arrested.
2. Criminal proceedings against the applicants
On 8 January 2007 the investigating judge of the Skopje Court of First Instance (“the first-instance court”) opened investigation against the applicants on the account of a suspicion of having committed a drugs-trafficking offence, and ordered their detention.
On an unspecified date, immediately after the discovery of the substances in the cans, two expert reports on the substances’ content were drawn by the Forensic Department of the Ministry of Interior (“the Ministry”) upon a request of the Ministry’s Illegal Trade Department.
On 13 January 2007 the first applicant was detained in Serbia pending extradition.
On 9 May 2007 the first applicant’s defence lawyer requested permission to inspect the case-file.
On 11 May 2007, a day after her extradition from Serbia, the first applicant was brought before the investing judge. She stated that before giving any statement, she needed to familiarise with all available evidence.
On 16 and 18 May 2007 the first applicant gave a detailed statement before the investigating judge regarding her business relations and transactions when importing the wall paint from Venezuela. She concluded by saying that after having given an elaborate statement she would further on use her right to remain silent. According to the court record, she stated that:
“...Upon a question from the court whether this right to remain silent refers also to the evidence that was not presented to her during the today’s hearing, the accused [the first applicant] stated that the right to remain silent refers to this legal situation as well.”
On 28 May 2007 the first applicant lodged a fresh request to the first-instance court to access the case-file.
On 4 June 2007 the first applicant lodged several submissions to the first-instance court in which again she requested access to the case-file and copy of the documents contained therein. A de plano objection was lodged against all evidence since the defence had no access to them. Finally, she objected against the record of her examination of 16 and 18 May 2007 (see above) concerning her statement about the right to remain silent, arguing that the investigating judge’s question had been in itself a violation of her defence rights and that her reply had been misinterpreted.
On 21 June 2007 the public prosecutor lodged an indictment against the applicants. The applicants objected after the defence, on an unspecified date, was given the opportunity to access the file. The objections lodged against the indictment were dismissed.
On 31 August 2007 the trial against the applicants commenced.
On 14 September 2007 the first-instance court decided to hear L.S. and N.V. from Montenegro, by either summoning them before the court or having them examined by the Montenegro’s authorities.
On 16 October 2007 expert witnesses from the Ministry were examined about the two expert reports that were drawn by immediately after the discovery of the substances in the cans.
On 17 October 2007 records of examination of witnesses in Montenegro were read at the trial. The first-instance court also ordered that the two expert reports on the content of the substances found in the cans, drawn earlier by the Forensic Department of the Ministry of Interior (“the Ministry”), be supplemented (дополнување на вештачењето).
On 2 November 2007 the first-instance court outside the main hearing (вон рочиште) and without notifying the defence, ordered the Ministry to draw a fresh expert report on the quality and quantity of the substances found in the cans.
On 9 November 2007 the Ministry issued the requested fresh expert report, which states that it was drawn by applying the methods contained in the recommendations of the European Network of Forensic Sciences Institutes (ENFSI) and UNDCP (United Nations Drug Control Program). Out of 432 packages, 27 randomly-chosen packages weighting 27,30 kilos were analysed and the results confirmed the earlier findings that the substance was cocaine. The total weight of the cocaine, calculated with the ENFSI mathematical-statistic method, was 436,879 kilos, with a possible statistical error of ± 2,324 kilos.
On 15 November 2007 the expert witnesses were examined again. They emphasised that 21 randomly-chosen packages were fully analysed. The defence requested that the whole content of the substances be analysed by an independent institution.
On 27 November 2007 in their closing statement, the defence inter alia objected to the examination of the witnesses in Montenegro and the reading of the examination records at the trial.
On 30 November 2007 the first-instance court found the applicants guilty of trafficking in drugs and convicted them to 14 years and six months’ prison sentences.
In the operative part of the 55-page first-instance judgment, the criminal offence was set out in the following terms:
“[The applicants] are guilty because on an unspecified date by the end of December 2006, acting as a group (како повеќе лица), participated in an unauthorised transport of a narcotic drug – cocaine. The first applicant, after getting connected with unknown persons who wanted to transport the drugs from Venezuela, approached the second applicant, arranged with him the transport of the drugs from Montenegro to Greece, paid him 1,100 euros and provided him with necessary supporting documents. The second applicant ... went to the port of Bar in Montenegro, where the truck was loaded with 882 cans of white wall paint in which the cocaine was planted ... [he] reached the Blace border crossing [on Macedonian-Kosovo border] and during a routine check of the Customs ... in 76 cans, 432 packages of cocaine weighting 434,555 kilograms were discovered.
With these actions, they [the applicants] committed the criminal offence “unauthorised production of, and trade in, drugs and narcotic substances”, under section 215, paragraph 2 in relation to paragraph 1, of the Criminal Code.”
Regarding the expert reports, the first-instance court’s judgment reads as following:
“... From the statements of the expert-witnesses S.K. and O.B. given at the trial, the [first-instance] court established that the lab of the Forensic Department of the Ministry was the only one in the country accredited and referential for the analysis of seized narcotics. The lab was authorised by UNDCP and uses their [UNDCP] recommendations... In accordance with [these] recommendations, when more than 100 packages were seized, the quantity to be analysed was calculated as a square root of the whole amount. Since in the instant case 432 packages had been discovered, 21 randomly picked packages had been fully analysed... Yet, [for the purposes of the first two expert reports,] all 432 packages had been analysed with the so called speedy methods... The weight was established with ENFSI mathematical-statistical method with [the assistance of] special software. In the instant case ... on the basis of the analysed 27 [randomly picked] packages weighting 27,30 kilos, the total weight was calculated at 436,879 kilos with a possible statistical error of ±2,324 kilos.
The expert-witnesses submitted that although the Forensic Department was part of the Ministry, it functioned independently and they had so far never been influenced by their superiors nor would they have ever accepted something of that kind...
...The [first-instance] court did not accept the request for a new expert report on the content and quantity of the packages that would be drawn by an independent institution since in accordance with the Criminal Proceedings Act the expert report could be drawn by a state body and in more complex cases, such as this one, the expertise is by rule entrusted to a state organ. The expert report of 9 November 2007 was drawn by the Ministry upon a prior court order... [there is no need] for a new expert report that would analyse the whole content ... [since] the experts were provided with the packages in accordance with the UNDCP and ENFSI recommendations.”
As regards the examination of the witnesses in Montenegro, the first-instance court’s judgment states that:
“...The [first-instance] court fully accepts the witnesses’ [N.V. and L.S] statements... The statements of these witnesses were obtained upon a request [addressed to the Montenegro’s authorities] (по пат на замолница) issued upon a prior decision made on record during the trial. [The parties] had no remarks [nor] had they made any objections when these statements were read at the trial...”
As regards the on-site inspection (увид) of the packages found in the truck the first-instance judgment reads as follows:
“...The [first-instance] court, in the presence of the prosecutor, the defence and the accused ... in the [depot] of the [first-instance] court’s Corpora Delicti Unit inspected the packages found in the truck and established that they were stored in [enumerated] paper bags with a “KT” sign on them [sign of the Ministry’s Forensic Department]... three randomly chosen paper bags were opened [in which] there were nylon rectangular packages with some logos of a bull and other pictograms imprinted...”
In the parts concerning the second applicant, the first-instance court’s judgment inter alia reads as follows:
“... The witness H.H. [cousin of the second applicant and manager of the family-run transport company] stated that on 7 or 8 January 2007, while waiting with his uncle [the father of the second applicant] in front of the first-instance court’s building, the first applicant called him and told him that [the second applicant] had nothing to do with the cargo transported with the truck and if need be, she [the first applicant] could come to testify that before the [first-instance] court...
...The [first-instance] court from all the listings [of phone calls] determined that in the critical period [between 1 December 2006 until 7 January 2007] the first applicant called the second applicant 126 times and that he called her 30 times...
...The [first-instance] court assessed the second applicant’s defence that he had not made any agreement with the first applicant to transport any drugs but only wall paint... that drugs were never mentioned in their contacts, that the documentation [provided from the first applicant’s company for the purposes of customs formalities] referred only to a wall paint...The [first-instance] court took this defence into account but did not accept it as contrary to the evidence and the actions undertaken by the second applicant... Namely, the second applicant does not deny that by transporting the wall paint, he also transported the cocaine... [His] defence that he did not know that cocaine was planted cannot be accepted since it is unsupported with any evidence and is contrary to the actions that he undertook ... and to the evidence produced...”
The applicants appealed alleging inter alia errors of fact and law; unlawful taking and wrong assessment of evidence, including the witnesses examined in Montenegro; lack of impartiality of the experts; as well as lack of reasoning of the first-instance court’s judgment. The first applicant also claimed violation of her rights in the investigation.
On 18 April 2008 the Skopje Court of Appeal (“the second-instance court”) dismissed the appeals.
Regarding the first applicant’s complaint about her rights during the investigation the second-instance court’s judgment reads as following:
“... On 11 May 2007, the first applicant, in the presence of her representative, was informed about the charges against her ... and about her rights... She stated that she would give a statement once she was presented with the evidence ... On 16 May 2007 she gave a statement before the investigating judge and in the presence of her representative... She had time and facilities to prepare her defence and a possibility to communicate with her representative...
According to Article 126 of the Criminal Proceedings Act, the accused, after being examined, has a right to access the files and the objects to be used as evidence.
According to Article 71 of the Criminal Proceedings Act the representative is authorised to take all actions on behalf of the accused... As for the allegations about violation of Article 126 that she was not given access to the file after being examined by the investigating judge, [it is to be noted that] the first applicant stated that after having given an elaborate statement she would further use her right to remain silent.
As evident from the file, the first applicant’s representative, before lodging an objection against the act of indictment, requested and was given access to the file... Moreover, the first-instance court established all decisive [and relevant] facts at the trial...”
Regarding the expert report, the second-instance court established that the examined substances were the same with those found in the cans, that the drugs’ weight was clearly established and that there was no doubt as to the accuracy of the expert report drawn by the Ministry. It further found that the expert-witnesses from the Ministry were examined during the trial and that they were warned about the consequences of submitting false statements.
As regards the examination of witnesses in Montenegro, the second-instance court concluded that these witnesses’ statements were lawfully obtained and that the defence did not object when they were read at the trial.
The second-instance court noted that from the huge quantity of the discovered drugs it follows that the drugs were trafficked for the purpose of selling and not for any other purpose.
The second-instance court added that the applicants must have known about the contents of the cargo since “there was no economic logic to transport the wall paint from Venezuela as the transport costs were higher than the cargo’s value”. It went further concluding that
“... having also in mind the intensity of the contacts between the first and the second applicants as well as the contacts with the witnesses L.S. and N.V. in Bar, in correlation with the facts that the first applicant provided the second applicant with a written documentation issued from her company, that the cargo should have transited to Greece and handed over to the [non-existent] company S., it becomes clear that the two applicants knew and had been aware of the unlawfulness of their actions undertaken in committing the criminal offence...”
The applicants lodged requests before the Supreme Court for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда). They reiterated their allegations about violation of their defence rights and in particular about the expert report, examination of witnesses and lack of reasoning. The first applicant again complained about her rights in the investigation.
On 20 October 2009 the Supreme Court dismissed the applicant’s requests and upheld the lower courts’ judgments.
The Supreme Court found that the expert report was lawfully obtained upon a court order. It found that the witnesses in Montenegro were also lawfully examined. It reiterated that the first applicant’s rights in the investigation were not affected given that she had been represented and had had sufficient time and facilities to prepare her defence. It concluded that considering the intensity of the contacts between the first and the second applicant and the contacts they had with the witnesses in Montenegro, the applicants were aware of the unlawful transport of the drugs.
The Supreme Court further noted the following:
“Regarding the allegations raised in the requests [for extraordinary review of a final judgment] about the absence of the wording “for the purpose of selling” in the operative part of the judgment, the Supreme Court concludes that this does not make this judgment defective (манлива), since that [the purpose of selling] is to be assumed (произлегува) having in mind the actions undertaken by the applicants when committing the criminal offence. Therefore, this is not a ground that would exclude the applicants’ criminal liability, since, from the description of the applicants’ actions, there are no doubts that the drugs was transported for the purpose of selling; moreover, such a huge quantity of drugs could not be for the applicants’ personal use. [Even more,] it [the huge quantity] endangers the life and the health of millions of people on the planet.”
A. Relevant domestic practice
On 9 March 2007 the second-instance court quashed a first-instance judgment and remitted the case К.бр. 1916/06 for fresh examination, finding that the possession of 560 grams of marijuana was insufficient for the criminal offence “unauthorised production of, and trade in, drugs and narcotic substances” since the “purpose of selling”, as a constituent element of the offence was not established.
COMPLAINTS
The first applicant complains under Articles 6 and 13 of the Convention about her defence rights in the investigation. She also complains under Article 6 about the examination of witnesses in Montenegro. Both applicants complain about the expert reports drawn by the Ministry, which also initiated the criminal prosecution against them. The second applicant complains also about lack of reasoning and violation of the presumption of innocence. Both applicants complain that their conviction was contrary to Article 7 since the “purpose of selling” was not reflected in the operative part of the first-instance court’s judgment and established during the proceedings.
QUESTIONs TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention?
a) With respect to the first applicant, was the principle of equality of arms respected and was she afforded adequate facilities to prepare her defence during the investigation stage, as required by Article 6 §§ 1 and 3 (b) of the Convention (see mutatis mutandis Artico v. Italy, 13 May 1980, § 35, Series A no. 37)?
b) With respect to the second applicant, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in view of the findings contained on page 50 of the first-instance judgment? Was the burden of proof shifted to the second applicant? Was sufficient reasoning given for his conviction (see Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011)?
c) With respect to the both applicants, was the principle of equality of arms respected when the domestic courts dismissed the applicants’ request for an independent expert examination and admitted in evidence the expert reports (in particular, the expert report of 9 November 2007) drawn up by the Ministry of the Interior, which was the body that initiated the criminal proceedings against them (see Stoimenov v. the former Yugoslav Republic of Macedonia no. 17995/02, 5 April 2007)?
d) With respect to the first applicant, was the examination of the witnesses in Montenegro in compliance with this Article (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011)?
2. Does the absence of the “purpose of selling” from the operative part of the first-instance court’s judgment (as established by the higher courts), constitute a violation of Article 7 of the Convention?
3. Did the first applicant have at her disposal an effective domestic remedy for her complaint under Article 6 regarding the alleged violation of her defence rights in the investigation stage, as required by Article 13 of the Convention?
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
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