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FIFTH
SECTION
CASE OF ATANASOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 22745/06)
JUDGMENT
STRASBOURG
17
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Atanasov v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska,
Angelika Nußberger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22745/06) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national,
Mr Sande Atanasov (“the applicant”), on 20 May 2006.
- The
applicant was represented by Ms V. Koceva, a lawyer practising in
Negotino. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged procedural unfairness, in particular, that he was
not given an opportunity to attend the session of 2 November 2005
before the Court of Appeal.
- On
5 February 2009 the President of the Fifth Section decided to
communicate this complaint to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Negotino.
- On
22 November 2001 the public prosecutor requested an investigating
judge of the Negotino Court of First Instance (“the trial
court”) to open an investigation against the applicant on the
count of forgery of a notice convening a meeting of shareholders of a
company, N., in which he was also a shareholder (“the notice”).
The applicant was accused of having deceived a considerable number of
shareholders into signing the notice by misleading them in the belief
that there would be only one item on the agenda, instead of eight, as
was actually the case. The investigating judge heard the applicant
and 47 witnesses. After the investigation had been completed, on 29
May 2002 the public prosecutor lodged an indictment against the
applicant.
- The
trial court fixed twelve hearings, including that of 6 May 2004,
which the applicant did not attend, although he had been summoned
properly. During the trial, the court again heard oral evidence from
the applicant, who had a court-appointed lawyer, and the 47 witnesses
and admitted other documentary evidence. On 31 May 2005, in the
presence of the applicant’s lawyer only, the trial court
convicted the applicant and sentenced him to four months’
imprisonment suspended for one year. It did not rely on the
statements made by the witnesses before the company’s
management denying that they had been informed about the remaining
items on the agenda. The court rejected the applicant’s defence
as self-serving and the testimony of 6 defence witnesses as
inconsistent and implausible.
- On
13 July 2005 the applicant who, at the relevant time, was not
represented by counsel, appealed against that decision. He did not
request to be notified of the date of the session (седница)
of the Court of Appeal.
- On
2 November 2005 the Skopje Court of Appeal dismissed the applicant’s
appeal and upheld the trial court’s decision. The court decided
in private. The public prosecutor was present, but not the applicant.
The court addressed the public prosecutor’s written submission
of 17 October 2005 and her oral pleadings requesting that the
applicant’s appeal be dismissed.
- The
decision was served on the applicant on 21 November 2005.
- On
19 January 2006 the public prosecutor informed the applicant that
there were no grounds for lodging a request with the Supreme Court
for the protection of legality (“legality review request”).
II. RELEVANT DOMESTIC LAW
- Under
section 361 (1) and (3) of the Criminal Proceedings Act (“the
Act”) (Закон за
кривична постапка),
the chairman of the adjudicating panel of the Court of Appeal will
appoint a judge rapporteur. The latter, in cases involving offences
automatically subject to prosecution by the State, will forward the
case file to the public prosecutor, who will examine and return it
without delay. After receiving the case file, the chairman will fix a
date for the session (седница)
of the adjudicating panel. The public prosecutor will be
notified thereof.
- Section
362 (1) and (3) of the Act provides for notification of the date of
session to be given, inter alia, to the defendant and his
lawyer, the victim (as a plaintiff, тужител)
and the private prosecutor (приватен
тужител)
if, within the period prescribed for the appeal or reply to
the appeal, they so request or propose that a hearing (section 364 of
the Act) be held before the second-instance court. Such notification
may be given to parties who have not made such a request if their
attendance would contribute to establishing the facts. The session
starts with the presentation of a report prepared by a judge
rapporteur. The panel may seek additional explanations from the
parties attending the session. Parties can propose, with the aim of
supplementing the report, that some documents from the case-file are
read. They can also specify their arguments submitted in the appeal
or reply to the appeal.
- Section
364 (1) and (2) of the Act provides that the second-instance court
will hold a hearing (претрес)
only if new evidence needs to be produced or evidence
re-produced, or if the case does not need to be remitted for fresh
consideration. The defendant and his or her counsel, the public
prosecutor, the victim and any witnesses or experts to be heard are
summoned to attend the hearing before the second-instance court.
- Under
sections 403-410,
the public prosecutor can submit a legality review request in respect
of a final decision. The public prosecutor is always apprised of the
session of the Supreme Court, which decides the legality review
request. If the court accepts the legality review request submitted
in favour of a person convicted, it cannot amend the final decision
to his or her significant disadvantage in respect of the legal
qualification of the crime and penalty imposed. If the legality
review request is lodged against the person convicted, the court can
only acknowledge the violation without amending the final decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 that the principle of equality
of arms had been violated and the length of the proceedings had been
excessive. He complained that, unlike the public prosecutor, he had
been deprived of the opportunity to attend the session of 2 November
2005 before the Court of Appeal; that the witnesses’ statements
to the company’s management had been communicated to him with a
one-year delay, which had put him at a disadvantage vis-à-vis
the prosecution; that the examination of witnesses on 6 May 2004 had
occurred in his absence; that the courts had refused his request for
a re-examination and that the courts had examined only 6 witnesses
for the defence – far fewer than for the prosecution. Article 6
§ 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time... by [a] ... tribunal ...”
A. Admissibility
1. The applicant’s absence at the session before
the Court of Appeal on 2 November 2005
- The
Government did not raise any objection as to the admissibility of
this complaint.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. The length of the proceedings
- The
Court notes that the proceedings in question started at the earliest
on 22 November 2001 when the public prosecutor requested the
investigating judge to open an investigation against the applicant
(see, mutatis mutandis, Nankov v. the former Yugoslav
Republic of Macedonia, no. 26541/02, § 42, 29 November
2007). They ended on 21 November 2005 when the Court of Appeal’s
decision of 2 November 2005 was served on the applicant. They
therefore lasted almost four years for two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court considers that the applicant’s case was complex, in
particular because of the large number of witnesses heard by the
investigating judge and during the trial.
- It
also observes that there were no significant delays attributable to
the applicant.
- As
regards the conduct of the authorities, the Court notes that it took
a little above three years for the trial court to issue a decision.
During this time, the trial court heard the applicant and 47
witnesses and admitted other documentary evidence. Having regard to
the material before it, the Court does not find any period of evident
inactivity on the part of the trial court. Lastly, the Court of
Appeal decided the applicant’s appeal within almost four
months.
- Against this background, the Court considers on the
whole that the length of the proceedings was not excessive (see
Bajraktarov v. the former Yugoslav Republic of Macedonia
(dec.), no. 34112/02, 18 November 2008). Accordingly, the
applicant’s complaint concerning their length is manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and must be rejected in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
2. Remaining complaints
- The
Court has examined the remaining complaints under Article 6 of the
Convention. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols.
- 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. Merits
1. The parties’ submissions
- The
applicant stated that, despite his failure to request to attend the
session, the Court of Appeal should have summoned him, as provided
for in section 362 (3) of the Act.
- The
Government maintained that the applicant had not requested in his
appeal to be notified about the session of the Skopje Court of
Appeal, although he had been entitled to do so under section 362 of
the Act (see paragraph 13 above). Since the case involved an
automatically prosecutable offence, the presence of the public
prosecutor had been based on section 361 of the Act.
2. The Court’s consideration
- The
Court reiterates that the principle of equality of arms – one
of the elements of the broader concept of a fair trial –
requires each party to be given a reasonable opportunity to present
his case under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent. This implies, in
principle, the opportunity for the parties to a trial to have
knowledge of and comment on all evidence adduced or observations
filed, even by an independent member of the national legal service,
with a view to influencing the court’s decision (see Kress
v. France [GC], no. 39594/98, §§ 72 and 74, ECHR
2001 VI).
- Furthermore,
a State which institutes courts of appeal or cassation is required to
ensure that persons amenable to the law shall enjoy before these
courts the fundamental guarantees contained in Article 6 (see
Delcourt v. Belgium, 17 January 1970, § 25, Series A
no. 11).
- In
this context, importance is to be attached to, inter alia, the
appearance of the fair administration of justice and to the increased
sensitivity of the public to the fair administration of justice (see
Borgers v. Belgium, 30 October 1991, § 24 in
fine, Series A no. 214 B).
- Turning
to the facts of the present case, the Court observes that the Skopje
Court of Appeal had jurisdiction to examine the case as to the facts
and the law and to make a full assessment of the question of the
applicant’s guilt or innocence (see Ivanovski v. the former
Yugoslav Republic of Macedonia (dec.), no. 21261/02, 29 September
2005). It decided the applicant’s appeal at a session held in
private, the date of which was communicated to the public prosecutor
under section 361 (1) of the Act (see paragraph 12 above). The public
prosecutor attended the session and submitted a final oral statement
requesting that the applicant’s appeal be dismissed. The Court
of Appeal addressed this statement in its decision. The applicant was
not present and could not have replied to that position. In this
connection the Court notes that the applicant did not exercise his
right under section 362 (1) of the Act (see, a contrario,
Nasteska v. the former Yugoslav Republic of Macedonia, no.
23152/05, § 17, 27 May 2010). In result,
he was not informed of the Court of
Appeal’s session. Furthermore, that
court did not request his attendance
although it had such jurisdiction under section 362 (1) of the
Act (see paragraph 13 above). In the Court’s view,
the applicant’s failure to request notification should
not be taken to his prejudice given the statutory inequality that the
Act created by having provided only the public prosecutor with a
right to be apprised of the Court of Appeal’s session
automatically, while restricting that right for the accused only in
case he or she requires so. The Government did not provide any
reasonable explanation for this procedural inequality flowing from
the Act. Furthermore, it is obvious that such privilege is limited
only for the public prosecutor (section 361 (1) of the Act) and does
not concern any other private individual acting as a prosecutor
(section 362 (1) of the Act). The Court sees no reason why such
preferential treatment is offered to the public prosecutor, as a
State body, which acts as a party to the proceedings and accordingly
the applicant’s adversary.
- The
Court considers that the public prosecutor’s presence at the
Court of Appeal’s private sitting afforded her, if only to
outward appearances, an additional opportunity to bolster her opinion
in private, without fear of contradiction by the applicant (see
Borgers v. Belgium, § 28, cited above, and Lobo
Machado v. Portugal, 20 February 1996, § 32, Reports of
Judgments and Decisions 1996-I).
- In
view of the above, the Court considers that there has been a
violation of Article 6 § 1 of the Convention on account of the
public prosecutor’s presence at the Court of Appeal’s
session of 2 November 2005, of which the applicant was not even
notified.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 16,000 euros (EUR) in respect of pecuniary damage
for loss of income during his unemployment. He also claimed
EUR 10,000 in respect of non-pecuniary damage for the stress and
suffering caused by the alleged violations.
- The
Government contested these claims as unsubstantiated. They further
stated that there was no causal link between the alleged violations
and the damages claimed.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the applicant must have suffered non-pecuniary damage
as a result of the violation of the principle of equality of arms.
Deciding on an equitable basis, the Court awards the applicant under
this head the sum of EUR 3,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 200 for the costs and expenses incurred
before the domestic courts. He did not seek reimbursement of the
costs and expenses incurred in the proceedings before the Court.
- The
Government contested this claim as unsubstantiated arguing that no
evidence had been submitted to show that the costs had been actually
incurred.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum (see Kostovska v. the
former Yugoslav Republic of
Macedonia, no. 44353/02, § 62, 15 June 2006). As
to the costs and expenses claimed in respect of the domestic
proceedings, the Court notes that such costs were not incurred in
order to seek through the domestic legal order prevention and redress
of the violation found by the Court (see Boris Stojanovski
v. the former Yugoslav Republic of Macedonia, no.
41196/06, § 64, 6 May 2010). It therefore rejects the
applicant’s claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares by five votes to two the complaint
concerning the principle of equality of arms admissible;
- Declares unanimously the remainder of the
application inadmissible;
- Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint separate opinion of Judges
Jungwiert and Villiger is annexed to this judgment.
P.L.
C.W
JOINT DISSENTING OPINION OF JUDGES JUNGWIERT AND
VILLIGER
[(Translation)]
We
voted against the majority which found a violation of Article 6 §
1 of the Convention on account of the public prosecutor’s
presence at the Court of Appeal’s session of 2 November 2005,
of which the applicant was not notified. The majority considered that
the Criminal Proceedings Act (“the Act”), by having
provided only the public prosecutor with a right to be apprised of
the Court of Appeal’s session automatically, while restricting
that right for the accused only in case he or she requires so,
created a statutory inequality, which in itself was contrary to a
fair trial.
We agree that the Act (sections 361 (3) and 362 (1) of the Act, see
“Relevant domestic law” above) did not put the public
prosecutor and the defendant in equal position as regards the
notification about a session of the Court of Appeal. However, we
emphasise that the Court’s role is not to rule in abstracto
on the compatibility of the national legislative provisions with
the Convention, but to ascertain in concreto what effect the
application of the Act had on the applicant’s rights under
Article 6 of the Convention (see, mutatis mutandis, Klass
and Others v. Germany, 6 September 1978, § 33, Series A no.
28).
In
the present case, it is not disputed that the applicant did not
request in his appeal that the Court of Appeal notify him about the
date of its session. This requirement did not entail the completion
of any particularly complex formalities: a simple indication in his
appeal in this respect would have sufficed. Had the applicant made
such request in his appeal, the Court of Appeal would have been
obliged, ex lege, to notify the applicant about its session.
Consequently, his omission to request notification about the date of
session could be regarded as an unequivocal, albeit implicit, waiver
on his part of the right to attend the appeal session (see, mutatis
mutandis, Hermi v. Italy [GC], no. 18114/02, §§
77-103, ECHR 2006 XII). That he defended himself in person and
not through a legal representative was a matter of his own choice and
cannot be understood as implying that he was not capable of realising
the consequences of this failure.
In
the light of the above and taking account of the nature of the Court
of Appeal’s session, as opposed to a hearing (sections 362 (3)
and 364 (1) of the Act, see “Relevant domestic law”
above), we are of the opinion that the applicant did not do
everything that could reasonably have been expected of him in order
to assert his right to attend the session of 2 November 2005 before
the Skopje Court of Appeal. We cannot therefore agree with the
majority that the violation of the principle of equality of arms
stemmed directly from the Act.
