Communicated on 17 October 2016
FIRST SECTION
Application no. 71744/14
Blagoj STOJĆEV
against the former Yugoslav Republic of Macedonia
lodged on 3 November 2014
STATEMENT OF FACTS
The applicant, Mr Blagoj Stojčev, is a Macedonian national, who was born in 1970 and lives in Vinica.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was employed as police officer in Vinica. He was the deputy chief of the local police station. As part of his official police duties he had accompanied other officials and participated in the enforcement of the legal framework governing the protection of forests and nature.
Although the approval from the authorities for forest management was given for harvesting fallen wood from location M., on 11 October 2009 the applicant, together with other individuals, and two motor trucks, went to the location L. where they cut down several unmarked trees and loaded the wood on the trucks.
On the way back, one of the trucks had an accident. When the police and the ambulance came, they discovered the unmarked logs of wood loaded on the truck.
On 13 October 2009 the police inspected the location L. and determined that twenty-five beech trees had been cut down.
Following the incident, the investigating judge of the Kočani Court of First Instance (Основен суд Кочани) opened an investigation against the applicant, and several other individuals, on grounds that there had been reasonable suspicion that they have committed aggravated theft (тешка кражба).
On 29 June 2010 thirteen individuals, including the applicant, were indicted before the Kočani Court of First Instance. The applicant was indicted on charges of aggravated theft.
The Forensic Science Department of the Ministry of the Interior prepared an expert report which established that the logs of wood found on the trucks were a match to the wood samples gathered from the illegally cut down trees on location L. It was unable to determine whether the chainsaws seized from some of the defendants were used to cut down the trees at location L.
At the hearing held on 26 November 2012 the prosecutor altered the legal qualification of the charges to theft.
On 7 December 2012 the Kočani Court of First Instance gave a judgment and convicted the applicant as charged. He was sentenced to a fine of 2,000 euros (EUR) which was converted to an equivalent of 123,000 Macedonian denars (MKD). The conviction was based on statements of the defendants and other witnesses, police records from the on-site inspection, expert report and other evidence.
The applicant appealed, alleging that the first-instance court had failed to properly establish the relevant facts and, consequently, had erroneously applied the law. He requested to be notified if the second-instance court holds a public hearing.
The public prosecutor also appealed against the first-instance judgment, seeking more severe sentences for the defendants.
On 10 June 2013 the Štip Court of Appeal (Апелационен суд Штип) dismissed the appeals lodged by the applicant and the other defendants as ill-founded at a session held in camera. It partially granted the public prosecutor’s appeal and replaced the fine, originally imposed on the applicant, with a prison sentence of one year. It held that the applicant was employed as police officer and had a duty to enforce the law and protect the forest from illegal logging and timber theft; instead, he had engaged in criminal activity himself. The second-instance court stressed that the applicant’s profession had been an aggravating factor that had not been properly taken into account by the first-instance court. Furthermore, it held that all the relevant facts had been sufficiently established by the trial court and therefore there had been no need to hold a public hearing, in accordance with Article 457 of the Criminal Procedure Act.
The applicant lodged a request with the Supreme Court for extraordinary examination of a final judgment (барање за вонредно преиспитување на правосилна пресуда), complaining that the second-instance court had prejudiced his right of defence when it had refused to hold a public hearing and that it had failed to give an adequate reasoning.
On 18 February 2014 the Supreme Court dismissed the applicant’s request as ill-founded. It held that the refusal of the second-instance court to hold a public hearing did not violate the applicant’s defence rights because it fell within the court’s discretion to decide whether the presence of the defendants was necessary and whether there was a need to hold a public session.
The applicant received the Supreme Court’s judgment on 5 May 2014.
B. Relevant domestic law
Article 457 § 1 of the Criminal Proceedings Act (Закон за кривичната постапка, Official Gazette nos. 15/2005) provides that when the second-instance court decides upon an appeal lodged against a first-instance judgment in simplified criminal proceedings (скратена постапка), it can invite the parties to attend the session if it considers that their presence is necessary for further clarification of the relevant circumstances.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the Štip Court of Appeal did not hold a public hearing and examined the merits of the case as regards both the facts and the law and increased his sentence behind closed doors.
QUESTION TO THE PARTIES
Was the refusal of the Štip Court of Appeal to hold a hearing in the presence of the applicant, considering that the fine to which he had been sentenced at first instance was replaced with a sentence of imprisonment, contrary to the requirements of fairness under Article 6 §§ 1 and 3 (c) of the Convention?
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