SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47023/99
by Blagoj SOLAKOV
against the Former Yugoslav Republic of Macedonia
The European Court of Human Rights (Second Section), sitting on 25 January 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 3 December 1998 and registered on 24 March 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant has both Macedonian and Bulgarian nationality. He was born in a Bulgarian village called Hadjidimovo and is currently living in Skopje (the Former Yugoslav Republic of Macedonia).
He is represented before the Court by Mielle Nichol and Didier Matray, of the Liège Bar (Belgium).
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 September 1997 the applicant was arrested by the authorities of the Former Yugoslav Republic of Macedonia on charges that from January 1992 to May 1995 he had smuggled around 10,5 kg of drugs from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and that for that purpose had set up a whole network involving also his son, who lives in the United States. The applicant himself had also lived for a period there. He has already been charged with drug trafficking by the American Police.
It appears that the applicant ceased any drug trafficking after 22 May 1995, when one of the drugs’ smugglers died in the plane to the United States from an overdose.
From 30 September 1997 till 29 December 1997 the applicant was detained pending trial. During the investigation proceedings he exercised his right to remain silent.
On an unspecified date the investigating judge at Skopje Municipal Court decided to travel to the United States to hear witnesses. On 28 November 1997, during the preliminary investigation, the applicant’s lawyer was informed by the investigating judge that he would organise his trip to the United States a week later. The investigating judge summoned the lawyer to the hearing (see Relevant domestic law).
On 1 December 1997 the lawyer was denied an American visa on the ground that he had not produced all the relevant papers required and that his request would be reviewed provided that he submitted the papers to the Embassy. He was, inter alia, requested to submit a certificate of his working position, income, seniority and evidence that he owned real estate and had family ties in the Former Yugoslav Republic of Macedonia. From the applicant’s submissions it does not appear that the lawyer renewed his application for an American visa. On an unspecified date the applicant withdrew his power of attorney.
On 3 December 1997, the applicant appointed another lawyer, who on the same day was summoned to attend the hearing of witnesses in the United States scheduled for 8 - 13 December 1997. On the summons, the lawyer placed his signature in the space provided for the bailiff’s signature and the bailiff placed his signature in the space provided for the lawyer’s signature.
On 4 December 1997 the investigating judge informed the American Embassy in the Former Yugoslav Republic of Macedonia that on 28 November 1997 they summoned the first applicant’s lawyer to attend the interrogation of the witnesses in the United States and that the second applicant’s lawyer had declared that there was no need for him to be present at the interrogation of the witnesses and that he did not have sufficient funds to meet the travel expenses.
The five witnesses who were heard by the investigating judge, in the presence of the prosecution and the court interpreter, and whose testimonies were taped, were the people with whom the applicant had been dealing in the United States. They were all serving prison sentences in the United States for drug trafficking. Drugs were also found in the apartment of the applicant’s son, in which the applicant also used to live for a certain period of time.
According to the witnesses, who had taken an oath and were heard separately, it was the applicant who had set up the entire network and who had organised the smuggling and re-sale of approximately 10,5 kg of drugs into the United States. The applicant had contacts in Bulgaria, from where he would smuggle the drugs into the Former Yugoslav Republic of Macedonia. He would then arrange for it to be smuggled into the United States. Some of the witnesses stated that they smuggled the drugs in a plaster which the applicant would wrap around their leg, as if it was broken. When they arrived in the United States they would hand over the drugs to the applicant’s son in return for payment. Some of the witnesses stated that they were supplied with the drugs by the applicant and his son, had an agreement with them for drug dealing and that they were supplied with the drugs at the applicant’s or his son’s house.
Two of the witnesses who on separate occasions had travelled to Bulgaria gave evidence that they had been taken into Mr Robert M.’s apartment in Bulgaria where Mr Robert M. and the applicant had wrapped plasters with drugs around the witnesses’ legs. One of those witnesses further stated that when he had been in Mr Robert M.’s apartment he had given money to him and after a while Mr Robert M. had appeared with drugs.
None of the witnesses had given any statement regarding Mr Angel B.
On 22 December 1997 the public prosecutor indicted the applicant with drug trafficking from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and setting up an international network for that purpose.
On 1 January 1998 the applicant made a submission to the Municipal Court that there was no case to answer as there was no convincing evidence against him. In particular, the indictment was predominantly based on the testimonies of the witnesses who were serving prison sentences in the United States and who were not cross-examined by the defence. The witnesses had a deal with the American authorities to have their sentences reduced in exchange for their co-operation. The applicant argued that on the one hand, since they had already been convicted in the United States, they were aware that they would not risk anything if they gave false evidence, as they could not be prosecuted under Macedonian law. On the other hand, if they had modified their testimonies, which were identical to the ones already given to the American authorities, they run the risk of losing all the benefits which were agreed upon by the authorities.
On 12 January 1998 the court held that on the basis of all the evidence in the case there was a reasonable suspicion that the applicant might have committed the offence with which he was charged. Therefore, it refused to terminate the criminal proceedings against him.
On 22 January 1998 a hearing was held before the Municipal Court. The applicant maintained his innocence. Photographs showing the deceased’s plaster in which the drugs were found, photographs of the witnesses, reports on the search of the applicant’s son’s apartment and another witness where some drugs had been found and the reports on the investigation in connection with the applicant’s son and his pre-trial detention were, inter alia, examined.
The statements of the witnesses examined in the United States were read out in open court. The applicant challenged them and requested a confrontation with the witnesses. The court refused the motion on the ground that: “to secure the attendance of the witnesses is really difficult and there are also other important reasons”.
As regards the two witnesses for the defence the record of Skopje Municipal Court of 22 January 1998 states as follows:
“…the applicant’s lawyer asked the court to gather information about Mr Robert M., in particular, regarding his place of residence, whether Mr Robert M. was charged with being one of the co-organisers [of the drug trafficking] with the accused, [and if so] to obtain his case-file, and to call him as a witness.
He also called the witness Mr Angel B. from the village of Kompliven, Bulgaria, to give evidence on whether he knew the accused and Mr Robert M., whether he had ever been in Mr Robert M.’s apartment with the accused, whether he know if the accused had been supplied with drugs (amphetamines), whether he knew some of the prosecution witness, etc…”
That motion was refused on the grounds that “the court has sufficient evidence before it to reach its verdict.”
On 26 January 1998 the Municipal Court found the applicant guilty of drug trafficking within the meaning of Article 255 § 2 of the Criminal Code and sentenced him to ten years’ imprisonment. The court dismissed the applicant’s objection that there had been a breach of his right to defence as he had been unable to confront the respective witnesses on the grounds that he had been given a reasonable opportunity to attend their interrogation in the United States and that there was no possibility for those witnesses to be summoned to attend the public hearing, as they remained imprisoned overseas. The court found that their testimonies were reliable, as they had had no opportunity of making a deal with the Macedonian Public Prosecutor to have their sentences reduced in exchange for giving evidence against the applicant. It further observed that all the witnesses had recognised the applicant on a photo, and that, although each of them had been heard separately by the investigating judge in the presence of the public prosecutor, their statements were consistent and precise. The court also relied on the applicant’s testimony. The court decided that it had not been necessary to hear the two witnesses for the defence as it had sufficient evidence before it to reach the verdict.
On 26 February 1998 the public prosecutor submitted an appeal to the Skopje Appellate Court, requesting it to increase the applicant’s sentence in view of the nature of the offence committed, the degree of danger to the public, the fact that it concerned organised crime at international level and that the applicant was a determined offender.
On 6 March 1998 the applicant filed an appeal with Skopje Appellate Court (Апелационен суд), complaining, inter alia, that the lower court had infringed the Code of Criminal Procedure and Article 6 of the Convention, as it had reached its verdict on the basis of the testimonies of the witnesses whom had not been permitted to confront. The applicant further complained about the court’s refusal to hear two additional witnesses on his behalf.
On 20 May 1998 the Appellate Court dismissed the appeal, on the ground that the Municipal Court had acted in accordance with Article 325 of the Code of Criminal Procedure, which states that witnesses may be heard in the absence of the accused or his lawyer if there was a valid reason making it impossible or extremely difficult (see Relevant domestic law). The court found that the lower court had given a reasoned explanation why it was extremely difficult to cross-examine those witnesses at the public hearing. They were heard only by the investigating judge and the public prosecutor, but the legal representatives of the applicant had been summoned for the examination of the witnesses and therefore had had a sufficient opportunity to attend the witnesses’ interrogation. In addition, the court held that the testimonies were consistent and logical and corroborated by each other and by other evidence such as the reports from the searches carried out in the apartment of the applicant’s son and of another witness. It also held that the two witnesses called by the defence were not relevant as they would not have brought much new to the case.
The court granted the public prosecutor’s appeal and increased the applicant’s sentence to thirteen years’ imprisonment.
On 11 June 1998 the applicant filed an appeal on points of law (Барање за вонредно преиспитување на правосилна одлука) with the Supreme Court (Врховен суд) on grounds similar to the ones stated in the Appellate Court’s judgment.
On 2 July 1998 the Supreme Court dismissed that appeal on the grounds that the investigating judge had acted within his competence when he decided to interrogate the witnesses in the United States and that the applicant and his lawyers had been notified of that decision and summoned in sufficient time. Furthermore, the Supreme Court held that objectively it would have been impossible to have the witnesses heard at the public hearing, as they were serving a prison sentence overseas. Consequently, in accordance with the rules of the Code of Criminal Procedure there were sufficient reasons to justify the statements being read out at the public hearing and serving as a basis for the applicant’s conviction.
On 6 September 1999 the applicant’s son declared before a notary that his father had nothing to do with the drugs trafficking. Another person also declared before a public notary that the applicant had been engaged in trade with spare parts for cars.
On 5 October 1999 the applicant applied to Skopje Municipal Court to have his case reopened on the basis of those declarations. His application was dismissed on 27 October 1999 on the ground that it did not represent a new fact or new evidence to re-open the proceedings. On 27 December 1999 that decision was upheld by the Appellate Court.
B. Relevant domestic law and practice
Code of Criminal Procedure
1) Appeals on points of law (Барање за вонредно преиспитување на правосилна одлука)
Article 411 § 1
“(1) A defendant who has been finally convicted and sentenced to imprisonment or to youth custody shall have the right to lodge an appeal on points of law in the cases set forth in this Code.”
Article 412
“The Supreme Court shall have jurisdiction to deal with such appeals.”
Article 413 in conjunction with Articles 356 and 355 lays down that such appeals may be lodged in respect of procedural irregularities or errors of law.
Article 415, in conjunction with Article 408, provides that if the Supreme Court finds the appeal on points of law to be founded, it may substitute its own verdict or quash the decisions of the lower courts and remit the case to the lower courts, or merely hold that the court below has erred in law.
2) Re-opening of the criminal proceedings
Article 392 provides that criminal proceedings may be re-opened if, inter alia, a new fact or new evidence is called before the court which may prove the convict’s innocence or militate for the reduction of his sentence.
3) Examination of witnesses
Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation.
Article 161 §§ 4, 5 and 7 reads as follows:
“4. The prosecution, the defendant and the defendant’s lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing …
5. In case in which the prosecution, the defendant and the defendant’s lawyer are entitled to be present …at an interrogation of a witness by an investigating judge, they shall be informed of the time and place of …the interrogation. If the defendant has a lawyer, the investigating judge shall only inform the lawyer.
...
7. Persons present at the interrogation [of a witness] may ask the investigating judge to put questions to the witness …”
Article 325 §§ 1, 2 and 5 reads as follows:
“1. When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine shall not be lost by the fact that a transcript of a previous statement by the witness is read out, or by the fact that he gave a written statement.
2. As an exception … a panel of judges may decide to read only transcripts of the statements of the witnesses, the co-accused, persons already convicted of the offence, or expert witnesses in the following circumstances:
(i) if the person concerned has died, is mentally ill, cannot be found, or if his attendance is impossible because of old age, illness or any other important reason.
…
5. On the record of the public hearing, the court shall state the reasons why the transcript of the witness’ statement was read out and whether the witness or the expert witness has taken the oath ”
As a matter of courts practice, the fact that the witness is overseas is considered an “important reason” within the meaning of Article 325 § 2 (i) of the Code (see above), as the court may have no effective means for securing his attendance at the public hearing.
Article 326 provides that where necessary, the court may, at its discretion, decide to hear a tape recording of the witnesses’ examination, rather than to rely solely on the transcript.
4) The right to call witnesses
Article 274 §§ 1 and 2 reads as follows:
“1. Even after the date for the public hearing has been set, the parties shall have the right to request that new witnesses or expert witnesses be heard and to present other evidence at the public hearing.
2. If the President of the Chamber dismisses the request, the parties shall have the right to resubmit the request at the public hearing.”
5) The right to have an ex officio lawyer appointed
Article 66 §§ 2 and 5 provides that the president of a court shall appoint an ex officio lawyer to a person who is detained pending trial.
COMPLAINTS
The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that his trial was unfair in that he was unable to cross-examine the witnesses whose testimony had served as a basis for his conviction and to obtain the attendance and examination of two defence witnesses.
The applicant stated, in particular, that his lawyer had been given only one week notice of the interrogation of the witnesses to be heard in the United States, which had prevented him from obtaining a visa. In addition, despite the fact that the witnesses’ statements had been tape recorded in the United States, only unsigned transcripts were presented in evidence before the courts, which in the applicant’s opinion also amounted to an infringement of the principle of “equality of arms”. The applicant claimed that he had been convicted solely on the basis of those statements.
THE LAW
The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that his trial had been unfair in that he had not been entitled to cross-examine the witnesses whose testimony had served as a basis for his conviction and had been unable to call evidence from two defence witnesses.
Article 6 §§ 1 and 3(d), insofar as relevant, provides as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by a … tribunal …
…
3. Everyone charged with a criminal offence has the following minimum rights:
…
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
…”
The Government reaffirmed that under domestic legal system all evidence had in principle to be given at an adversarial hearing before the court having jurisdiction. However, it was possible in some circumstances provided by law not to hear the witnesses at a public hearing, but only to read out their statements. According to the domestic courts’ practice, the fact that the witnesses concerned had been convicted and were serving prison sentences overseas, represented an important ground for only taking their sworn statements and not hearing them in person at the public hearing.
The Government maintained that the fact that the statements had been taken by the investigating judge who was impartial and whose purpose was to collect evidence not only against the applicant but also in his favour, offered a sufficient safeguard for the applicant’s right to fair trial. The domestic law had also been applied properly. In particular, the defence had been duly summoned and informed about the time and place of the hearing of witnesses. A letter had been addressed to the American Embassy urging it to issue the necessary visas for the applicant’s lawyers. The statements had only been taken when it became clear that the defence was unable to attend for reasons beyond the court’s power, namely, the first lawyer could not obtain a visa from the American Embassy and the second did not have enough money to cover the travel expenses. Therefore, the defence had been afforded an equal opportunity with the prosecution to attend the hearing of the witnesses during the preliminary investigation.
Furthermore, the applicant had not availed himself of the possibility of appointing a lawyer in the United States although he had lived in that country and his son was living there at the time. Nor had he submitted questions in writing to the investigating judge.
The Government further submitted that the lack of a confrontation with the witnesses had not restricted his right to challenge their reliability and that no valid reasons had been found by the courts to cast doubt on their credibility.
As regards the court’s refusal to call the two witnesses for the defence, the Government contended that the domestic courts enjoyed full discretion in deciding which witnesses to call. In the instant case, the domestic court had considered that there was no need to call the two witnesses, as their testimonies were immaterial for the establishment of the facts of the case and sufficient evidence had already been adduced before the court. The court had also made several attempts to summon the witnesses, but they had proved impossible to trace.
The applicant maintained he had been denied adequate and proper opportunity to challenge the witnesses. The summonses had not contained any detailed information about the venue or exact date of the interrogation, or the number and names of the witnesses to be heard. They had also been served at short notice, so that the lawyers had not had have sufficient time to prepare properly for the cross-examination.
The applicant further submitted that whereas the summons had been duly served on his first lawyer but the first lawyer had been unable to obtain an entry visa, the second lawyer had not been duly summoned. In particular, the summons was not signed by him, but by a court bailiff. The Government had also failed to provide any proof that the lawyer had waived his right to be present at the interrogation of the witnesses.
The applicant contested the Government’s submission that the notice had urged the American Embassy to issue visas for the lawyers. In addition, it had been served on 4 December 1997, by which time the first lawyer had already been denied an entry visa. Moreover, it had prevented the second lawyer from obtaining a visa, as it had stated that he had already declared that there was no need for his presence at the interrogation and that he could not cover the travel expenses.
The applicant maintained that it was clear from the Municipal and the Appellate Courts’ judgments that the courts had relied mainly, if not solely, on the statements of the witnesses taken in the United States. He further submitted that the statements were not reliable. In particular, some of the witnesses had given statements relating to the possibility of their being charged or exposed to some sort of risk in the Former Yugoslav Republic of Macedonia, which indicated that they might have been promised some kind of a deal by the investigating judge or the prosecution authorities.
The applicant further contended that he had never been allowed to hear the recording of the statements on tape and that the statements which were taken in English had never been translated by a certified translator or signed by the witnesses. There had been no possibility, whatsoever for the defence to review the content of the tape recording which was in English or to verify its accuracy and consistency with the written transcripts in Macedonian which had been produced at a later stage and were read out in open court.
The applicant contended that two additional witnesses, whom the court had refused to hear had been important witnesses, as their names were mentioned in some of the statements. He maintained that the Government had failed to establish that the court had attempted to summon them on several occasions, but had been unable to do so as their address in Bulgaria were unknown. In fact, from the judgment it is clear that the Municipal Court considered that sufficient evidence had been adduced at the main trial so that no further testimony was necessary.
Having examined the application, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
Declares the application admissible, without prejudging the merits of the case.
Erik FriberghChristos Rozakis Registrar President
Full & Egal Universal Law Academy