IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21261/02
by Slobodan IVANOVSKI
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 29 September 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrC. Bîrsan,
MrsM. Tsatsa-Nikolovska,
MsR. Jaeger,
MrE. Myjer, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 17 March 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Slobodan Ivanovski, is a Macedonian national who was born in 1946 and lives in Skopje. He was represented before the Court by a lawyer practising in Skopje, the former Yugoslav Republic of Macedonia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 October 1997 an individual brought criminal charges for defamation against the applicant, who at that time was a police officer.

In a summary procedure, on 3 October 2000 the Basic Court Skopje II Skopje found the applicant guilty and sentenced him to four months’ imprisonment suspended for one year. It found that the applicant told a third person (“the witness”) that the complainant would be convicted and sentenced to three years’ imprisonment and that he was unfit to carry a gun and that it would be seized. The court found the accusations credible and convicted the applicant of defamation. It, inter alia, stated:

“...the defendant [name] on 15 October 1997 visited the witness [name] at his work in the elementary school ... on which occasion he made untruthful statements about the complainant [name] and told him that the latter would be sentenced to at least 3 years imprisonment and that he was unfit to carry weapons and his pistol would be taken away...The court finds that the accused [name] and the witness [name] took part in the incident by taking into account the clear and precise statement of the witness [name] who described the critical incident and the defendant’s statement, who states that he did meet with the witness on the stated day...”

Before the decision was reached, on 3 October 2000, the court held a public hearing, which was attended by the complainant, the applicant and the witness to whom the defamatory statements were allegedly made. The applicant’s lawyer was not present at the hearing. She had not been properly summoned, which the court expressly noted in the minutes. However, despite the absence of the applicant’s lawyer, the court held the hearing as the applicant had been warned at the previous hearing held on 5 July 2000 that the (next) hearing would be held even in the lawyer’s absence, as legal representation was not compulsory and as the applicant had failed to secure the presence of his lawyer. The applicant did not explicitly object to the hearing proceeding in the absence of his lawyer. He did not ask for an adjournment and consented to giving evidence and himself put questions to the witness.

In his evidence to the court, the applicant stated that he had been served with the criminal complaint, but that he was not able to judge whether to remain silent or to defend himself. He rejected the accusations and declared himself not guilty. He stated that he had known the complainant for about 40 years and they had recently met more often, as he was divorcing and was asking for some consultations with the complainant who was a retired lawyer. He started seeing the complainant’s daughter. Their relations became troubled when the applicant allegedly refused the complainant’s proposal to transfer some property to the name of his daughter. He admitted that he occasionally saw the witness while on official visits to the school where the latter worked, but that he did not make any of the alleged defamatory statements to him.

The complainant stated that he had only known the applicant for several years and that he visited his house occasionally. As the applicant allegedly had asked him to found a company to enter into business relations with the underground in some neighbouring countries, he stopped all contact with him. After a couple of months, the complainant complained to the police authorities that the applicant was peering into his house, due to which internal disciplinary proceedings within the Ministry of the Interior were instituted against the latter. The event was noticed by the witness, who was a neighbour. He confirmed that, during the disciplinary proceedings, the applicant visited him several times in the school and threatened him to make him withdraw the statement. In the course of those visits, the applicant made untrue statements about the complainant to the witness which were the subject of criminal charges.

The witness confirmed that the applicant was the one who peeked into the complainant’s house, about which he made a statement to the police authorities. The applicant allegedly visited him several times at the school in order to persuade him to be objective and not to make statements against him in the disciplinary proceedings. He stated that the applicant did not tell him anything against the complainant, except not to be under his influence and to give an objective statement in the disciplinary proceedings. He also said that he thought that the applicant had mentioned to him that a gun would be seized from the complainant and that he would go to prison, but that he did not understand how would that be done and by whom. He received neither threats nor anything else from the applicant. He was also contemplating to complain to the police authorities about the applicant’s visits. He, inter alia, stated:

“... Sometime after that incident, the defendant ... visited me at work, and if I can say so, to pressure me because I understood he found out that a disciplinary procedure was initiated at his work place. He was telling me to be impartial and not to take the side of [name] the complainant, since he was my neighbour and he would definitely try to influence me to give a statement against him. During all those meetings, the defendant [name] was showing me pictures illustrating that he was in contact with the complainant’s [name] family. He was telling me about [name] his daughter, but he didn’t tell me anything about the complainant [name]. I repeat again that regarding the complainant [name] all he was saying was not to be under his influence and to give an impartial statement in the disciplinary procedure. That is all he was telling me. I say that he did not tell me anything regarding the complainant [name] as a person. I cannot quote him precisely, but I think that at one occasion, the defendant [name] mentioned that allegedly the complainant’s [name] pistol would be taken away and that he would be going to prison. But I did not understand in which context and by whom and in which way this would be done.”

The court refused the applicant’s request to summon several witnesses for the purpose of describing his relations with the complainant and his daughter as irrelevant for the offence of which he was accused.

The applicant appealed the court’s verdict on, inter alia, the following grounds: that the trial court violated his right to defend himself as he was tried in the absence of his lawyer; that the court erred in establishing the facts, especially in that it based its decision solely on the witness’s statement, which was not credible; and that it failed to call and examine the witnesses as proposed by the applicant. On 13 July 2001 the Appellate Court of Skopje dismissed both the applicant’s and his lawyer’s complaints as ill-founded. Regarding the applicant’s allegations of a violation of his right to defend himself before the trial court, the Appellate Court stated that:

“...according to the minutes of the hearing held on 5 July 2000, the accused was warned that if he would not secure the presence of his lawyer for the hearing scheduled for 3 October 2000, it would be held in her absence, as legal representation for criminal offences of that type was not compulsory. As the accused, despite the warning of the trial court, failed to secure the presence of his lawyer, the court finds that the trial court has properly decided to hold the hearing in the absence of his lawyer for representation was not compulsory. Thus, it did not violate his right to defend himself...”

The court dispensed with a hearing, albeit applicant’s request.

On 26 September 2001 the Public Prosecutor refused the applicant’s request to lodge a request for protection of legality with the Supreme Court.

B. Relevant domestic law

1. Law on criminal proceedings (Закон за кривична постапка)

Proceedings on the appeal

Article 362

“(1) A notification of the Chamber’s session will be given to the defendant and his lawyer, the person damaged as a complainant or to the private prosecutor who, within the period prescribed for the appeal or reply to the appeal, have requested to be informed about the session or have proposed a hearing to be held before the second instance court (Articles 364 to 366). The Chairman of the Chamber or the latter may decide a notification about the Chamber’s session also to be given to the parties when they have not requested it or to the party which has not requested it, if their presence would be useful for any matter to be clarified...”

Article 364

“(1) The hearing before the second instance court will be held only if it is necessary for new evidence to be presented due to an erroneously or incompletely established facts or for the evidence be re-presented and there are no justified reasons for the case be referred back to the first instance court for a retrial.

(2) For the hearing before the second instance court the defendant and his counsel, the prosecutor, the person damaged, the defence attorneys and legal representatives of the complainant, the person damaged as a complainant and the private prosecutor are summoned, as well as the witnesses and experts whom the court will decide to be heard...”

Summary proceedings

Article 416

“In the proceedings before the court in first instance for crimes of which a fine or imprisonment up to three years is prescribed as a main punishment, the provisions of Articles 417 to 430 of this Code will apply. If these provisions do not otherwise provide, the other provisions of this Code will be accordingly applied.”

Article 431

“(1) When the second instance court decides on appeal against the judgment of the first instance court delivered in a summary proceedings, both parties will be notified about the Chamber’s session only if the Chairman of the Chamber or the Chamber finds that the presence of the parties would be useful for the clarification of any matter...”

2. Criminal Code (Кривичен Законик)

Defamation

Article 172

“(1) A person who expresses or spreads some untruth about another, which could damage his honor and reputation, shall be fined or sentenced to imprisonment of up to six months.

(2) If the crime from par. 1 is committed by means of the press, radio, television, or through other public media or at a public gathering, the offender shall be fined or sentenced to imprisonment of up to one year.

(3) If the untruth that is expressed or spread is of such significance that it caused or could have caused severe consequences for the complainant, the offender shall be sentenced to imprisonment of three months to three years.

(4) If the accused proves the truth of his statement, or if he/she proves that he had reasonable grounds to believe in the truthfulness of what he had stated or spread, he shall not be punished for defamation, but may be punished for insult (article 173), respectively for slight by reproach about a crime (article 175).

(5) A person who falsely expresses or spreads about another that he/ she has committed a crime which is prosecuted in the line of duty, he/ she shall be punished for defamation, even though he/ she had had reasonable grounds to believe in the truthfulness of what he/ she expressed or spread, if the expression or spreading is not performed under the conditions from article 176, item 2. The truthfulness of the fact that another has committed a crime for which he/ she is prosecuted in line of duty may be proved only with a sentence that has come into effect and with other evidence only if the prosecution of the trial is not possible or is not allowed.”

COMPLAINTS

The applicant complains under Article 6 of the Convention of a violation of the right to a fair and public hearing by an impartial tribunal established by law. He complains under Article 6 § 3 (c) that the trial was held in the absence of his lawyer who had not been properly summoned by the court. He also invokes Article 6 § 3 (d), alleging that he could not obtain the attendance and examination of witnesses on his behalf in the same conditions as witnesses against him. He alleges a violation of the principle of the equality of arms as he was convicted solely of the basis of a testimony given by the complainant’s witness.

He further complains that he was not tried by an impartial tribunal for the following reasons: the trial court denied him the right to call and examine witnesses on his behalf and it based its decision solely on the complainant’s witness, whose statement was not credible.

Further, he submits that the Appellate Court did not hold an oral hearing and did not provide any reasons for this.

THE LAW

The applicant complains under Article 6 of the Convention alleging breach of his right to a fair hearing before an impartial tribunal. He particularly invokes Article 6 § 3 (c) and (d), complaining that he was denied the right to have legal assistance of his own choosing and that the principle of equality of arms was breached. Moreover, he complains that he was denied the right to a public hearing, as the Appellate Court dispensed of a hearing, despite his explicit request for an oral hearing. Article 6 §§ 1 and 3 (c) and (d), as far as relevant, provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(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.”

1. The alleged lack of legal representation before the court of first instance

As stated in the Court’s case-law, the requirements of Article 6 § 3 are to be treated as particular aspects of the right to a fair trial guaranteed under Article 6 § 1 (see, mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 32). Moreover, the Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective; this is particularly so for the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 24). Nor is it in dispute that Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general this includes, inter alia, not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of adversarial procedure and can also be derived from the guarantee contained, inter alia, in Article 6 § 3(c) “to defend himself in person” (see Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282‑A, § 26).

Turning to the present case, it must therefore be ascertained whether the applicant’s appearance before the trial court without the assistance of a lawyer was effective, in the sense that he was able to present his case properly and satisfactorily.

The Court observes that the applicant did not explicitly object to being tried without the presence of his lawyer. Moreover, he accepted to give evidence and to examine the witness himself. Thus, he did not insist on being represented by his lawyer, nor did he ask the court to adjourn the hearing. Furthermore, the applicant was aware that the hearing would be held in his lawyer’s absence as he had been warned by the trial court at the previous hearing and could have taken steps in that regard. The fact that the lawyer was not properly summoned does not alter that conclusion. The Court also notes that the applicant was not in disadvantageous position in relation to the complainant as the letter was not represented by a lawyer either. Despite the fact that defamation proceedings are inherently risky and that it may be difficult to predict their outcome (see Munro v. The United Kingdom, App. No.10594/83; 52 D.R.158), it does not appear in the circumstances of this case that the applicant was unable effectively to present his own case, which was not of a complex nature and did not require the establishment of complex facts or the location or examination of numerous witnesses or the presentation of expert evidence. Moreover, the Appellate Court dismissed the applicant’s complaints under this heading on the basis of reasoning which appears consistent and void of any arbitrariness.

Therefore, the Court considers that the continuation of the proceedings in the absence of the applicant’s lawyer did not violate his rights under Article 6 § 3 (c).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The alleged violation of the principle of equality of arms

Equality of arms means that a fair balance must be achieved between the parties, i.e. that each party must be afforded a reasonable opportunity to present his case, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, mutatis mutandis, Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A No. 301, p. 81, § 46). In this context, importance is attached to appearances as well as to increased sensitivity to the fair administration of justice (see, mutatis mutandis, Bulut v. Austria, judgment of 22 February 1996, Reports of Judgments and Decisions 1996‑II, § 47; Borgers v. Belgium judgment of 30 October 1991, Series A no. 214-B, p. 31, § 24). The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, mutatis mutandis, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997‑III, p. ..., § 50).

Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46; García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). In addition, the probative value of evidence falls essentially for the domestic instance to determine.

According to the facts of the case, the trial court reached its decision by examining the only direct witness, the person to whom the defamatory statements were allegedly made. The court also heard the complainant and the applicant and adduced other evidence considered relevant. It refused to call and examine the witnesses proposed by the applicant, the purpose of which was apparently to shed a light on the nature of his relationship with the complainant and the latter’s concealed intention to press charges against him.

The Court observes that all the evidence was produced at a public hearing in the presence of the applicant. At all stages of the proceedings he was able to submit the arguments he considered as relevant to his case. Thus, he had the benefit of adversarial proceedings. Moreover, in the judgment at the appellate stage the court endorsed the statement of the facts and the legal reasoning set out in the judgment at first instance in so far as they did not conflict with its own findings. The trial court’s view that the witnesses proposed by the applicant, who had no direct knowledge of the incident under examination, would not provide relevant evidence does not fall outside the scope of its discretion as being either arbitrary or unreasonable

In light of the foregoing considerations, it is the Court’s view that there was no evidential imbalance or unfairness which significantly impaired the position of the applicant.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The alleged lack of public hearing before the Appellate Court

Criminal proceedings form a whole and the protection afforded by Article 6 does not cease with the decision at first instance. A State is required to ensure, also before courts of appeal, that persons subject to the law shall enjoy before these courts the fundamental guarantees contained in the Article (see, inter alia, Monnell and Morris v. the United Kingdom, judgment of 2 March 1987, Series A no. 115, p. 21, § 54; and Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 12, § 24).

A person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the personal attendance of the defendant does not necessarily take on the same significance in an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions both of fact and law, Article 6 does not always entail the rights to a public hearing and to be present in person (see Belziuk v. Poland, judgment of 25 March 1998, Reports 1998‑II, § 37). In answering that question, regard must be had, inter alia, to the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see, inter alia, Ekbatani, cited above, p. 12, § 25; Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31–32; and Kremzow v. Austria, judgment of 21 September 1993, Series A no. 268‑B, p. 43, §§ 58–59).

In the present application, the Appellate Court was called upon to examine the case as to the facts and the law. In particular, it had to make a full assessment of the question of the applicant’s guilt or innocence.

The Court notes at the outset that an oral hearing had been held at first instance. It also notes that the applicant’s interests were represented by counsel in the appeal proceedings. The applicant’s special request for a hearing before the Appellate Court had the purpose of recurring an opportunity to present his complaints orally and to put forward the material and oral evidence which he considered relevant. It is not apparent that this involved any new evidence unknown to the court or raised any new elements which could not be examined on the basis of the existing file.

In the circumstances, the Court observes that the Appellate Court could fairly and properly determine the issues before it without hearing the applicant in person. In short, the interests of justice and fairness were, in the circumstances, met by the applicant’s being able to present relevant considerations through making written submissions. It finds that the interests of justice and fairness did not require a possibility of presenting oral submissions to the appellate court. Accordingly, this Court’s view is that the Appellate Court’s re-examination of the applicant’s conviction at first instance did not call for a full re-hearing of the applicant and the complainant.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The alleged lack of impartiality of the trial judge

The Court considers that the applicant’s complaints under Article 6 that he was not tried by an impartial court are unsubstantiated. The applicant infers the lack of impartiality from the outcome and conduct of the proceedings. He has failed to provide any evidence in support of his complaints. Moreover, it is beyond any doubt that the applicant has failed to raise the matter on the national level.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

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