FIRST SECTION
DECISION
Application no. 52874/10
Nevzat ZIBERI against the former Yugoslav Republic of Macedonia
and 5 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 23 May 2017 as a Committee composed of:
Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in six applications lodged by six Macedonian nationals: Nevzat Ziberi, Šehir Ziberi, Izmit Ameti, Megdi Islami, Habib Ameti and Florim Ameti (respectively, “the first applicant”, “the second applicant”, “the third applicant”, “the fourth applicant”, “the fifth applicant”, and “the sixth applicant”), all of whom are represented by Miralem Asani, a lawyer practicing in Tetovo. The first five applications were lodged with the Court on 7 September 2010 and the sixth applicant lodged his application on 28 September 2010. A list of the applicants is set out in the appendix.
2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. On 7 November 2007 the police undertook an operation in the village of Brodec, near Tetovo, to apprehend a group of suspected terrorists. There was an exchange of gunfire in which several of the suspected terrorists were killed. The event received extensive media coverage and became known as “Operation Mountain Storm” (Планинска Бура).
5. During the police operation all the applicants were arrested and an in situ inspection was carried out; during that inspection a large quantity of weapons was found. The investigating judge (истражен судија) supervising the on-site inspection ordered expert reports from the Criminal Investigations Bureau (Сектор за криминалистичка техника – “the Bureau”) of the Ministry of the Interior (Министерство за Внатрешни Работи – “the Ministry”) in order to identify a certain substance found on the applicants’ clothes, as well as the quantity and type of weapons discovered. A video recording of the on-site inspection was also made.
6. Following the police operation and the applicants’ arrest, an investigation was opened and all of the applicants were called to give statements in the presence of an investigating judge. The first, second and third applicants claimed that they were not part of the group in question. They stated that they had been elsewhere in the village during the police operation and that they had not fired any weapons on the day of the police operation. The fourth applicant confirmed that he was part of the group and that he had fired at the police on the day of the operation. The fifth and sixth applicants refused to give any statements.
2. Criminal proceedings against the applicants
7. On 27 February 2008 the applicants were indicted before the Skopje Court of First Instance (Основен Суд Скопје I Скопје). According to the bill of indictment, the applicants had joined a group created by some of the other accused for the purpose of committing criminal acts, such as the destruction of public buildings with the aim of spreading fear and uncertainty among the citizens of the State, and disturbing the constitutional order of the State (уништување јавни објекти и објекти во општа употреба со цел создавање на чувство на несигурност и страв кај граѓаните и загрозување на уставниот поредок на земјата). They were charged with terrorism and unlawful possession of large quantities of weapons and explosives (Терористичка организација и недозволено изработување, држење и тргување со оружје или распрскувачки материи). The weapons and explosives were listed in the bill of indictment.
8. The expert reports drawn up by the Bureau (see paragraph 5 above) were submitted as evidence, including an expert opinion which confirmed the presence of nitrate particles on the hands and clothes of the applicants.
9. At a hearing held before Skopje Court of First Instance (“the trial court”) on 19 May 2008 the representatives of the applicants requested that the expert reports, along with all other evidence produced by the Ministry of the Interior, be excluded from the case file. The reason given was that this evidence had been “obtained through the use of force and in violation of the applicants’ human rights” and could therefore not be used as evidence in the proceedings.
10. The trial court refused the request, finding that all the evidence obtained by the Ministry, including the expert reports, had been obtained on the basis of court orders. The trial court further stated that both the Supreme Court (Врховен суд на Република Македонија) and the European Court of Human Rights had previously held that it was not unlawful to use evidence provided by the Ministry in criminal proceedings. According to the trial court, this did not prevent the accused from submitting evidence in their own defence.
11. In their defence the first and second applicants denied having had any connection with the operations of the police or the exchange of gunfire. The first applicant maintained that he had been arrested in his home and that he had not had any weapons in his possession. The third, fifth and sixth applicants maintained that, being frightened by the gunfire, they had hidden in the cellar of a house in the village, where they had been arrested. They denied having had any weapons in their possession. The fourth applicant changed his earlier statement and now claimed that he had hidden in the cellar with the three above-mentioned applicants. He also denied having had any contact with weapons.
12. At a hearing on 6 June 2008 S.K. and V.A., the experts employed by the Bureau to produce the expert opinion confirming the presence of nitrate particles on the hands and clothes of the applicants, gave oral evidence. The experts were cross-examined by the defence, which, holding that the applicants had not participated in the exchange of gunfire, contested the findings of the expert report confirming the presence of nitrate particles on the hands and clothes of the applicants. The defence then reiterated its request for the exclusion of all evidence that had been submitted by the Ministry. The request was again refused by the trial court, which repeated the reasons previously given (see paragraph 10 above). At this hearing the lawyer of one of the applicants informed the trial court that he would request an additional expert report.
13. During the trial, a proposal was made by the defence that the trial court should order a new expert report from an independent institution regarding the presence of nitrate particles on the applicants’ bodies and clothes. The prosecution opposed this proposal.
14. At a hearing held on 11 July 2008 the prosecution and the defence delivered closing arguments. The defence presented two objections with regard to the expert report confirming the presence of nitrate particles on the hands and clothes of the applicants. Firstly, it reiterated the objection regarding the fact that the expert opinion had been drawn up by employees of the Bureau (and therefore of the Ministry), who could not be regarded as independent. The second objection concerned the methodology employed by the experts: the defence stated that the method by which nitrate particles had been detected (“парафинска ракавица”) was outdated: it was therefore unreliable because this methodology could not have established whether the particles had originated in the applicants having fired weapons or whether they such particles had inadvertently been transferred onto them.
15. On the same day the trial court found the applicants guilty of terrorism and unlawful possession of weapons and explosives. The fifth applicant was sentenced to twelve years’ imprisonment while the other applicants were sentenced to ten years’ imprisonment. In the reasoning of the judgment the trial court referred to a number of items of evidence obtained during the investigation, including the expert report drawn up by the Bureau, according to which nitrate particles had been found on the applicants’ hands and/or clothes (the precise location being specified in the judgment in respect of each applicant). The statements of the experts, testimony from the police officers who arrested the applicants, the analysis of the weapons and ammunition which were found on the spot, and the testimony given by some of the applicants themselves were also referred to in the judgment. On the basis of all available evidence, the trial court concluded that the nitrate particles constituted gunpowder residue left after gunfire during the police operation.
16. The applicants’ objections regarding the expert opinions were addressed in the judgment and dismissed. In particular, the trial court accepted that the method used by the experts of the Bureau was somewhat outdated, but given the knowledge and experience of the experts involved, it chose to vest confidence in their findings.
17. In its judgment the trial court also dismissed the applicants’ objections regarding the quality of the expert report on the nitrate particles and the alleged lack of impartiality of the experts, as well as the motion for the ordering of a new expert report, on the following grounds: the reports had been drawn up upon the order of an investigating judge; they had not been obtained through the exertion of undue pressure; the experts had had no contact with the applicants except when they had collected the relevant material (and the collection had, moreover, been undertaken in the presence of the investigating judge and the public prosecutor during the in situ inspection and had been filmed); and the reports had not constituted the sole evidence in respect of the facts of the case. The trial court further found that the material gathered for analysis had already been collected and analysed and could not have been restored to its original state and submitted for fresh examination using a different method. The same method as that used by the experts from the Bureau had been used by experts from the Forensic Institute (which was not linked to the Ministry) to analyse the nitrate traces found on the corpses of the suspected terrorists who had been killed (see paragraph 4 above) and it had reached the same conclusion.
18. Lastly, in this regard the trial court referred to the Court’s case-law in the case of Stoimenov v. the former Yugoslav Republic of Macedonia (no. 17995/02, 5 April 2007), but found that this case-law was inapplicable to the present case, given that the expert reports in the instant case had been drawn up following a court order and that it had been impossible to restore the collected material to its original state in order for another expert report to be drawn up.
19. Relying on all of the above-mentioned considerations, as well as the other evidence presented to it, the trial court concluded that the applicants had either fired weapons during the police operation or had been in close proximity to someone who had fired. In any event, it held that the use of weapons was not a key element of the crimes in question, but that on the basis of all available evidence, the fact that the applicants had gunpowder residue on them had helped to establish that all of the accused had actively participated in the realisation of the terrorist group’s plan.
20. In an appeal lodged on 5 September 2008 the applicants complained, inter alia, that the facts of the case had been established on the basis of the expert report drawn up by the Bureau, which lacked impartiality as it was part of the same body (namely, the Ministry) that had carried out the operation that had led to their arrest. They also restated their objections relating to the accuracy of the report.
21. On 24 November 2008 the Skopje Court of Appeal (Апелационен Суд Скопје) upheld the judgment and endorsed its findings regarding the expert report and the application of the Stoimenov case-law in the instant case. It found that the expert report had been drawn up upon the order of the investigating judge and that it had been prepared by the relevant State bodies. It reiterated that the expert report had not constituted the sole evidence in the case and referred to the statements given by the experts at the trial.
22. The first, second, fifth and sixth applicant lodged requests with the Supreme Court for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда). The first and second applicant complained, inter alia, about the refusal of the trial court to order an alternative independent expert report.
23. On 16 February 2010 the Supreme Court refused the requests. The relevant part of the judgment reads as follows:
“... the expert reports were drawn up by adequate, professional and skilled experts, using appropriate scientific methods which leave no room for doubt as to their competence and professionalism ... [F]urthermore, the judgment is based not only on this evidence, but also on the remaining personal and material evidence, which taken together constitutes a clear factual basis ...”
B. Relevant domestic law
24. The relevant provisions of the Criminal Proceedings Act of 2005 (Закон за Кривична Постапка, Official Gazette. no. 15/2005, consolidated version), as applicable at the time, read as follows:
Section 255
“(1) An expert shall be selected from the permanent list of experts by the trial court on the basis of his expertise, experience, standing and other circumstances that may be of significance.”
Section 256
“(1) An expert examination may be requested by means of a written order from the body which is carrying out the procedure. The order shall specify the reasons for which the examination is required and the person appointed to perform it.
(2) If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, shall as a rule be entrusted to that institution or body. The institution or body shall appoint one or more experts to carry out the expert examination [...]
(4) If there is no [suitable] expert [on the list of permanent experts] for a particular type of examination, the court can appoint an expert from outside the list.”
Section 260
“(2) In the event of the expert analysis of a substance, the expert shall, if possible, be given part of that substance, and the remainder must be secured in a sufficient quantity for any additional analyses.”
Section 265
“An opinion must be obtained from other experts if an expert opinion which has already been delivered contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by further questioning of the experts who gave the opinion [in question].”
COMPLAINTS
25. The applicants complained that their right to a fair trial guaranteed by Article 6 § 1 of the Convention had been breached in that the domestic courts had allowed the introduction as evidence of expert reports which had been drawn up by the Ministry of the Interior and on which those courts had later relied in their respective judgments. They alleged that this had violated the principle of equality of arms.
THE LAW
А. Alleged violation of Article 6 of the Convention
26. Complaining of a breach of the principle of equality of arms, the applicants alleged that a crucial piece of evidence, namely the expert report in respect of the nitrate particles found on their bodies and clothes, had been drawn up by the Bureau, part of the Ministry of the Interior, which had initiated the criminal proceedings against them. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties’ submissions
(a) The Government
27. The Government submitted that the applicants had been given a fair hearing. They had been advised of their rights, and they had been free to appoint legal representatives, to adduce evidence, and – most importantly – to cross-examine the experts who had prepared the expert report in question. The Government further submitted that the domestic courts’ judgments had been well reasoned and had addressed all the applicants’ objections. In this regard, the first-instance judgment had described in detail the location of nitrate particles on each applicant’s body and clothes. The expert report itself had been neutral and objective.
28. Lastly, the expert report in question did not constitute the sole and decisive evidence in the case. The applicants had been found guilty on the basis of other evidence, such as testimony from the police officers that had arrested them, the big depot of weapons and ammunition that had been found on the spot, and the testimony given by some of the applicants themselves. Lastly, the Government submitted that there was no similarity between the instant case and the Stoimenov case because in the instant case there was no possibility to restore the analysed particles to their original state and to have them submitted for fresh examination by means of a different method. In this regard, they submitted that the present case is similar to the case of Poletan and Azirovik v. the former Yugoslav Republic of Macedonia (no. 26711/07, 32786/10 and 34278/10, 12 May 2016).
(b) The applicants
29. The applicants contended in particular that on several occasions they had requested that the domestic courts order a new expert report from an independent institution. This request had been dismissed solely because the prosecution had opposed it.
30. The applicants held that under domestic law the Ministry was authorised to collect and process evidence from a crime scene, which in itself did not raise an issue. However, the fact that the experts that had drawn up the expert report regarding the nitrate particles were employees of the Bureau (and therefore of the Ministry) raised serious issues regarding the degree of their independence and impartiality.
2. The Court’s assessment
31. The Court has already held in the case of Poletan and Azirovik (cited above, § 94) that the appointment of experts is relevant in assessing whether the principle of equality of arms has been complied with. The mere fact that the experts in question are employed by one of the parties does not suffice to render the proceedings unfair. Although this fact may give rise to apprehension as to the neutrality of the experts, such apprehension, while having a certain importance, is not decisive. What is decisive, however, is the position occupied by the experts throughout the proceedings, the manner in which they performed their functions and the way the judges assessed the expert report. In ascertaining the experts’ procedural position and their role in the proceedings, one must not lose sight of the fact that the opinion given by any court-appointed expert is likely to carry significant weight in the court’s assessment of the issues within that expert’s competence.
32. Furthermore, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it. Where the defence insists on the court hearing a witness or taking other evidence (such as an expert report, for instance), it is for the domestic courts to decide whether it is necessary or advisable to accept that evidence for examination at the trial. The domestic court is free, subject to compliance with the terms of the Convention, to refuse to call witnesses proposed by the defence, for instance on the grounds that the court considers their evidence unlikely to assist in ascertaining the truth (ibid., § 95, with further references).
33. In the instant case, it is not in dispute that the expert report in question was drawn up by the experts who were employed by the Bureau, part of the Ministry which instituted the criminal proceedings against the applicants. As the Court has already explained in Poletan and Azirovik (cited above, §§ 98-99) the fact that appointed experts are members of the police – who owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution ‒ may give rise to apprehension on the part of applicants. Such apprehension may have a certain importance, but is not decisive. What is decisive is whether the doubts raised by appearances can be held to be objectively justified. In the Court’s opinion, the fact that an expert is a member of the police does not in itself justify apprehension that he will be unable to act with proper neutrality. To hold otherwise would in many cases impose unacceptable limits on the courts’ ability to obtain expert advice from members of the police.
34. The Court observes in the instant case that the experts were called upon to assist the court concerned to determine whether the applicants had nitrate particles on their bodies and clothes and whether those particles constituted gunpowder residue. In determining this particular aspect of the case, the findings of the experts seem crucial. However, the domestic courts held that the question of whether the applicants had indeed fired weapons was not a key element of the crimes in question; nevertheless, on the basis of all available evidence, the fact that the applicants had gunpowder residue on them had helped to establish that all of the accused had actively participated in committing the crimes in question (see paragraph 19 above).
35. Another issue to which the Court attaches particular attention is the fact that the experts S.K. and V.A. gave oral evidence at a hearing held before the trial court (see paragraph 12 above) and the applicants’ representatives were given the opportunity to cross-examine them (contrast Duško Ivanovski v. the former Yugoslav Republic of Macedonia, no. 10718/05, § 59, 24 April 2014, and Stoimenov, cited above, § 42). Furthermore, a video recording was made of the in situ inspection undertaken by the police, which was presented as evidence in the proceedings (see paragraph 17 above). Lastly, the inspection was undertaken in the presence of an investigative judge (see paragraph 5 above) who, as an independent judge, ordered the expert reports. All of these considerations lead the Court to believe that sufficient safeguards were put in place to secure the effective rights of the applicants.
36. In this regard the Court also observes that the applicants’ defence failed to provide any evidence that the experts in question had performed their duties in a way that was not impartial and objective. Although the applicants clearly had the opportunity to provide such evidence both during the cross–examination of the experts and later on during the appeal process, they failed to provide any indication of a lack of impartiality or independence, apart from pointing out the fact that the experts were employees of the Bureau (compare Poletan and Azirovik, cited above, § 101).
37. Turning to the methodology used by the experts, it is to be noted that whereas the applicants challenged the methods that the experts had used to determine the presence of gunpowder residue on the applicants’ bodies and clothes, the domestic courts took those objections into account and gave extensive and sufficient reasoning for dismissing them (see paragraph 17 above). In such circumstances, noting that it is not its task to assess the evidence and interpret the facts with regard to the findings of the experts, the Court is prepared to concede that the trial court was entitled to act at its own discretion in refusing the applicants’ request for an alternative expert examination by an independent expert or institution (ibid., § 102).
38. In view of the foregoing, the Court does not consider that the appointment as experts of members of the Bureau who were at the same time employees of the Ministry violated the principle of equality of arms or rendered the proceedings unfair.
39. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Other alleged violations of the Convention
40. The applicants also raised a number of other complaints. They complained under Article 3 of the Convention that they had been subjected to ill-treatment by the police on 7 November 2007, the day of their arrest. They also complained under Article 6 about the length of the proceedings against them. Lastly, they complained under Article 6 about the fact that some video recordings had been leaked to the press.
41. However, these complaints were raised for the first time in the applicants’ responses to the observations of the Government, which were lodged with the Court on 24 August 2016. Accordingly, and considering that the domestic proceedings in respect of the third and fourth applicant terminated on 24 November 2008 (see paragraph 21 above) and in respect of the first, second, fifth and sixth applicant on 16 February 2010 (see paragraph 23 above), those complaints were lodged outside the six-month time-limit and must be rejected as inadmissible in accordance with Article 35 § 1 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 June 2017.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
52874/10
07/09/2010
Nevzat ZIBERI
01/01/1978
Stip
Miralem ASANI
52882/10
07/09/2010
Šehir ZIBERI
01/01/1978
Tetovo
Miralem ASANI
55881/10
07/09/2010
Izmit AMETI
15/12/1952
Tetovo
Miralem ASANI
55925/10
07/09/2010
Megdi ISLAMI
15/12/1952
Tetovo
Miralem ASANI
55932/10
07/09/2010
Habib AMETI
09/11/1981
Tetovo
Miralem ASANI
56401/10
28/09/2010
Florim AMETI
21/03/1984
Tetovo
Miralem ASANI
Full & Egal Universal Law Academy