Communicated on 5 February 2015
FIRST SECTION
Application no. 34153/12
Zoran ŠUKLEV and Nikola MIRCEVSKI
against the former Yugoslav Republic of Macedonia
lodged on 1 June 2012
STATEMENT OF FACTS
The applicants, Mr Zoran Šuklev (“the first applicant”) and Mr Nikola Mirčevski (“the second applicant”), are Macedonian nationals, who were born in 1960 and 1977 respectively and live in Gevgelija. They are represented before the Court by Mr T. Torov, a lawyer practising in Štip.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 11 May 2010 the public prosecutor lodged an indictment with the Veles Court of First Instance (“the trial court”), charging the first applicant of selling, on 13 April 2010, 1.78 grams of heroin, and the second applicant of acting as an intermediary (посредувал во продажбата) in that sale. The first applicant was also charged that on 14 April 2010 he had unlawfully possessed, for the purposes of sale, 3.44 grams of heroin and 79 ecstasy pills in his vest. The charges were based on the statements of witnesses M.M., Sa.L and St.L. (the two latter being police officers who had witnesses the event of 13 April 2010), two expert reports on drug analysis, prepared by the Forensics Department (Оддел за криминалистичка техника, “the Department”) of the Ministry of Interior (“the Ministry”), record of the search of the first applicant’s apartment on 14 April 2010, certificates for items seized from the applicants and photo documentation.
On 19 July 2001 the trial court convicted the applicants and sentenced them to prison sentences of four years and six months and ten months, respectively. It found that on 13 April 2010 M.M. had given 3,000 Macedonian denars (MKD) to the second applicant and had asked him to buy some heroin, that the second applicant had entered into the first applicant’s house and when he had returned he had been stopped by Sa.L. and St.L. who had found drugs in his possession. It relied on the statements of M.M., Sa.L and St.L. given during the investigation, the certificate for temporarily seized objects from the second applicant, the expert report on analysis of the drugs drawn up by the Department and a listing of phone calls concerning the second applicant’s mobile phone number. It did not give weight to M.M.’s statement given at the trial, in which he had stated that he had not given any money to the second applicant, finding it contrary to his previous statement given during the investigation and to Sa.L. and St.L.’s statements also given during the investigation. The court dismissed the applicant’s objections against the statements of Sa.L and St.L., finding that they had been corroborated with the other admitted evidence.
As regards the event of 14 April 2010 the trial court established that the first applicant had unlawfully possessed the drugs, which had been found in a blue vest during the search of his home. It relied on the record for the search of the first applicant’s home on 14 April 2010, on the certificate for objects which had been temporarily seized during the search and on the expert report on analysis of the drugs drawn-up by the Department. It partly relied on the statements of the first applicant’s partner (who had been present in the house at the time of the search) and a witness to the search (Gj.C.).
The applicants appealed, complaining that Sa.L. and St. L. had not been heard and that their statements given during the investigation in the absence of the applicants and their representatives had been admitted at the trial. They further argued that the search of 14 April 2010 had been unlawful and that the applicant’s partner had been first taken to a room, where she had been stripped and searched, whereas the other police officers remained in the hallway of the house where they could plant the drugs in the vest in which it had later been found.
On 18 January 2011 the Skopje Court of Appeal (“the appellate court”) confirmed the trial court’s judgment and dismissed the applicant’s appeals. It found that the trial court had correctly established the facts of the case on the basis of M.M., Sa.L. and St. L.’s statements given during the investigation, the expert reports and the record of the search of the first applicant’s home.
The applicants lodged with the Supreme Court a request for extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда). They argued that the appellate court did not provide any reasoning as to the complaint that the statements of the police officers Sa.L. and St. L. given during the investigation, in the absence of the applicants and their representatives, had been read out at the trial. They further disputed the quality of the expert report prepared by the Ministry and, referring to the case of Stoimenov (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007), challenged the impartiality of the expert report, as it had been drawn up by the Ministry. The applicants, in this context, argued that the court could not interpret the experts’ findings without hearing the experts who had drawn-up the reports.
On 20 September 2011 the Supreme Court dismissed the applicants’ requests and confirmed the lower courts’ judgments. It found that all evidence relied on by the lower courts were lawfully obtained and admitted at the trial. M.M., Sa.L. and St. L.’s statements had not been the sole evidence, but were correlated to the other evidence to which the lower courts had given weight.
The latter judgment had been served on the applicants in prison on unspecified dates in December 2011 and/or March 2012. It has allegedly not been served on the applicants’ representative.
COMPLAINTS
The applicants complain under Article 6 of the Convention that the trial court’s judgment was based on the statements of Sa.L., St.L. and M.M. given during the investigation, in the absence of the applicants and their representatives. They also complain that the expert reports were produced by the Ministry, contrary to the principle of equality of arms.
QUESTIONS TO THE PARTIES
Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention? In particular,
- was the failure of the domestic courts to confront the applicants with Sa.L and St.L., whose evidence was used in court, compatible with Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention?
- could the applicant effectively challenge the findings of the expert reports prepared by the Ministry (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007; and Duško Ivanovski v. the former Yugoslav Republic of Macedonia, no. 10718/05, 24 April 2014)?
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