Communicated on 24 August 2016
FIRST SECTION
Application no. 15477/14
Damjan SMIČKOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 18 February 2014
STATEMENT OF FACTS
The applicant, Mr Damjan Smičkovski, is a Macedonian national, who was born in 1993 and lives in Skopje.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the evening of 11 February 2012 a physical confrontation between the applicant, R. and several other young men took place at a night club in Skopje. As a consequence, R. suffered injuries to his nose and face and was taken to the hospital by his friends. He was released later that same night.
An investigation was opened against the applicant, wherein he and several witnesses of the confrontation (among them R.) were heard by an investigative judge. On that occasion the applicant proposed that an eyewitness, P., be heard by the prosecution on his behalf. The applicant maintained that he had been attacked by R., J. and K. and that he had acted in self-defence. The applicant further maintained that during the confrontation one of his friends, P. had pushed K. (one of the witnesses) to the ground in an attempt to help him. This part of the testimony was corroborated by the other witnesses’ statements. The investigative judge commissioned an expert report regarding the character and intensity of the injuries suffered by R.
On 4 October 2012, after the expert opinion was completed, the applicant was indicted with causing “serious bodily harm” (“тешка телесна повреда”). He lodged an objection against the indictment and proposed that two more witnesses, M. and B., should be heard. The objection was later dismissed.
A public hearing before Skopje Court of first instance took place on 12 February 2012. At the hearing, evidence was given by the applicant, R. and two witnesses proposed by the prosecution – J. and K. (eyewitnesses of the event and friends of R.). The defence reiterated the proposal that P. be heard as a witness, and proposing that another witness, M. K., be heard on his behalf submitting that they were both eyewitnesses to the event. The court decided to postpone the decision regarding the new proposals until the next hearing.
That public hearing took place on 19 March 2012 and the expert G. A. gave evidence. He was cross-examined by the defence with regard to his competence to give characterisation of the injuries, because he was a traumatology expert. At this hearing, the same evidentiary requests were reiterated by the defence. It was further proposed that M. R. – another witness be heard and that a fresh expert examination be commissioned by the court because the present one was inconclusive and given by a traumatology expert. It was submitted that, due to the character of the injuries in question, an expert opinion by an otolaryngologist should be commissioned. It was also proposed that a neuro specialist should prepare an expert opinion with regard to the psychiatric state of the applicant on the evening of the confrontation in order to prove whether there was intent on his part.
The applicant was convicted to a suspended sentence of one year’s imprisonment.
The applicant submitted an appeal personally and through a lawyer. In the appeals it was inter alia stated that none of the witnesses proposed by the defence were heard by the court and none of the expert opinions proposals were accepted, effectively rendering the taking of evidence in the case completely one-sided. It was further stated in the appeals that the commissioned expert opinion was inconclusive.
The Skopje Court of Appeal held a public hearing on 11 July 2013. At the hearing a representative of the high prosecutor’s office proposed that the appellate court should allow the appeals and the case should be remitted because of omissions made by the lower court.
On the same day the Skopje Court of Appeal dismissed the appeals and confirmed the lower court’s judgement in its entirety.
COMPLAINT
The applicant complains, under Article 6 §§ 1 and 3 (d) of the Convention, of a breach of the principle of equality of arms and his inability to have heard any of the witnesses on his behalf and to obtain a further expert report on the matter of the accusations against him.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 and 3 (d) of the Convention? In particular, was the principle of equality of arms respected with regard to the applicant’s ability to obtain the attendance and examination of witnesses on his behalf and further medical expert reports?
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