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FIFTH
SECTION
CASE OF STOIMENOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 17995/02)
JUDGMENT
STRASBOURG
5
April 2007
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 Stoimenov v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 13 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17995/02) 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
Jordan Stoimenov (“the applicant”), on 6 September 2001.
- The
applicant, who had been granted legal aid, was represented by Mr P.
Edrovski, a lawyer practising in Kočani. The Macedonian
Government (“the Government”) were represented by their
Agent, Mrs R. Lazareska Gerovska.
- The
applicant complained, in particular, that the principle
of equality of arms had been breached as the national courts
had convicted him on the basis of, inter alia, an expert
opinion provided by the Forensic Science Bureau at the Ministry of
the Interior (“the Ministry”) that had set in motion the
proceedings against him.
- On
21 October 2005 the Court decided to communicate the complaint
concerning the alleged breach of the principle of the equality of
arms to the Government. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Jordan Stoimenov who was born in 1963 and lives in
Vinica, in the former Yugoslav Republic of Macedonia.
- On
30 January 2000 the Ministry lodged with the public prosecutor a
criminal complaint against the applicant and four other persons for
the unauthorised production of, and trade in, drugs and narcotic
substances, which was an offence under section 215 of the Criminal
Code.
- On
28 January 2000 the Forensic Science Bureau (Управа
за криминалистичка
техника) (“the
Bureau”) at the Ministry drew up an expert report (no.
X-121/2000) on the quality of poppy-tar that had been confiscated
from Mr I.P. According to this opinion, all 23 cakes of poppy-tar
contained substances which indicated that it was opium.
- On
30 January 2000 another expert opinion (no. X-122/2000) was issued
concerning the quality of 12 cakes of poppy-tar that had been
confiscated from Mr M.
- Both
expert opinions were given by the same expert at the Bureau, were
almost identically worded and provided succinct information about the
technique used to determine the composition of the poppy-tar and the
conclusion that it was opium. They read, inter alia, as
follows:
“... [S]everal tests were carried out on the
samples of the substance. Positive results were received as to the
existence of alkaloids... A chromatography analysis was made of the
samples to determine the chemical composition of the substance.
Samples of several alkaloids from our collection and a sample of
opium were used for comparison... The analysis of the chromatogram
revealed that it was identical to that of the opium, i.e. that the
analysed substance contained several alkaloids... The analysis led to
the conclusion that the unidentified substance was opium.”
-
According to depositions taken on 30 January 2000 in the pre-trial
proceedings, the applicant stated, inter alia:
“... When I was a child, I heard from my
grandmother and grandfather that they used to have in their
possession poppy-tar which they used for medicinal purposes. Mr D.
[the third accused] asked me on several occasions whether they still
had any... I went to see Mr M. [the first accused], my uncle, and
told him about this. We both searched the cellar in my grandfather's
house where my uncle used to live. We found about 12 kg of
poppy-tar in a plastic bag... I gave the bag to Mr D... The agreement
was to divide the money from the sale of the poppy-tar into three
parts if Mr D. sold it. He said that he could sell it for 30,000
German marks (DEM)... Some time later Mr D. said that the poppy-tar
was of poor quality, as it had been mixed with soil and had
[therefore] been difficult to sell. I asked him to return it if he
could not sell it so that I could put it back where it came from.
However, Mr D. did not return the poppy-tar... Once I visited his
house, but he was not there... Mr M. did not know that there was
poppy-tar in the cellar. The idea to search for it was mine and I was
incited to do so by Mr D...”
-
Mr D. stated, inter alia:
“...Jordan [the applicant] told me that he had
some 40-50 year old poppy-tar and asked me if I could find a buyer...
He said that the price was DEM 40,000... After a while I met with Mr
M.G. [the fourth accused] and asked him whether he could find a buyer
for the poppy-tar... A week or two later, Mr M.G. came to my house
and told me that he could find a buyer and asked me for a sample...
Mr M.G. said the price was too high... I met Jordan and asked him to
take the poppy-tar as there was no one interested in buying it at
that price. However, Jordan did not come because of the bad weather:
it was snowing. On 27 January 2000 Mr M.G. came to my house and told
me that he had found a buyer. On 28 January 2000 Mr M.G. came
accompanied by Mr I.P. [the fifth accused] ... and said that a
buyer from Skopje had offered DEM 2,500 per kg of poppy-tar...”
-
On 18 February 2000 the public prosecutor lodged an indictment
(обвинителен
акт) with the Kočani Court of First
Instance against Mr M., the applicant, Mr D., Mr M.G. and Mr I.P.
They were charged with having been in possession in the spring of
1999 of about 14 kg of opium and on 28 January 2000 of offering
for sale and selling about 8.7 kg of opium. The charges were based,
inter alia, on the statements of the accused in the
pre-trial proceedings and the expert opinion no.X-121/2000 dated
28 January 2000.
-
At the trial on 9 March 2000, Mr D.S., the applicant's grandfather
stated, inter alia:
“... the poppy-tar was collected by my parents and
my wife. I cannot say where it was stored. Maybe it was buried; there
was a war. It was the period between 1941 and 1955; people said that
it was of poor quality. I have never seen the poppy-tar nor do I know
where it was stored. I never told Jordan or Mr M. where it was, nor
did they ask me about it... I offered the poppy-tar for sale to the
Bilka company, but it turned it down as it was of poor quality. This
happened after the Second World War, but I cannot say when
exactly...”
-
The applicant's representative lodged a request for an alternative
expert opinion to be obtained from a scientific institution
concerning the quality of the poppy-tar for the following reasons:
the Bureau operated within the Ministry, which had lodged the
criminal complaint against him; the poppy-tar was old and had been
buried for many years; and an authorised organisation had refused to
buy it as it was of poor quality. The counsel representing the other
persons accused made a like request.
-
At the hearing on 10 March 2000 the court refused the request for
another expert opinion. In his concluding remarks the applicant's
representative reiterated, inter alia, his arguments about the
poor quality of the poppy-tar and about the report drawn up by the
Ministry.
-
The same day the Kočani Court of First Instance gave judgment.
It found the applicant and the other accused guilty and sentenced
them to terms of imprisonment of three to four years. The applicant
obtained the longest sentence (four years' imprisonment). All other
four defendants received sentences below the statutory minimum for
crimes of that kind (5 years) on the ground that they had no
previous convictions and some of them were young and/or had not
played a crucial role in the crime.
-
The trial court found that the applicant and his uncle Mr M. had
found 14.4 kg poppy-tar in the latter's cellar, i.e. opium belonging
to Mr M.'s father, who had kept it from the Second World War.
They had agreed to keep the opium at Mr M.'s house and to prepare it
for sale. Later, the applicant had offered about 8.7 kg of the
poppy-tar for sale to the third accused, Mr D., whose task was to
find a further buyer. Then Mr D. and the fourth accused, Mr M.G., had
checked the quality of the opium and given it to the fifth accused,
Mr I. P., whose task had been to sell the drugs to Mr N.N., an
unidentified final buyer from Skopje. As Mr I.P. feared detection, he
had tried to escape and had thrown the bag with the opium out of his
car. He was later arrested by the police and the bag containing the
opium was found.
-
The court found that the accused had acted in concert, namely that
the applicant had firstly found the opium and then offered it to Mr
D., who had offered it to Mr M.G. The opium was finally offered for
sale to Mr I.P., the fifth accused. The court made reference in its
decision to the statements of the applicant and the other accused in
the pre-trial proceedings concerning their roles in the crime. It
also referred to the applicant's statement at the hearing, but
disregarded it as self-serving. The testimony of several witnesses
and items of real evidence were also taken into account, along with
the expert opinions nos. X-121/2000 and X-122/2000 provided by the
Bureau.
-
The court held that the poppy-tar, a term used by the accused, was in
fact opium, the production of and trade in which was classified as a
criminal offence. It based its findings entirely on the written
expert opinion provided by the Bureau, stating inter alia :
“... the court established that it was a
psychotropic substance on the basis of the written evidence, namely
the expert opinions nos. X-121/2000 and X-122/2000 submitted by the
Bureau, in which it was definitely indicated that it was opium
containing several alkaloids...”
-
It noted that the Bureau was a state body authorised to perform such
expert examinations and that section 234(2) of the Criminal
Proceedings Act did not prohibit it from providing such an expert
opinion. It further stated:
“...The court disregards the defence's argument
that the opium was of poor quality i.e. what its quality and [opium]
percentage was, because the expert report undoubtedly established
that it was opium containing all the necessary substances to be
considered a psychotropic substance...”
-
In his appeal, the applicant complained, inter alia, of the
trial court's refusal to order an alternative, independent analysis
of the quality of the poppy-tar. He claimed that it was not a type of
opium prohibited by law, but poppy-tar that had been buried for a
long time and that moisture was known to destroy its morphine
content. In support of his arguments about the quality of the
poppy-tar, he noted that after the Second World War its owner, Mr
M.'s father, had been unable to sell it to an authorised buyer
because it was of such poor quality. As it had not been properly
stored its quality had deteriorated over time. He considered that a
chemical analysis was necessary to determine the quality of the
poppy-tar and proposed an institution which in his opinion had the
equipment necessary to make the required analysis. He also complained
that the expert examination of the opium had been performed by the
Ministry which had then brought the criminal charges against him.
-
The applicant also argued that the offence had been set up by a
police agent provocateur and would never have been committed without
his intervention (he claimed that the unidentified final buyer N. N.
was that agent). He further argued that he had been wrongly convicted
as he had voluntarily called off the sale of the opium at one point,
when he had changed his mind and asked the third accused to give him
the poppy-tar back. He also appealed against sentence.
-
At a public hearing held on 14 June 2000 the Štip Court of
Appeal dismissed the applicant's appeal and upheld the lower court's
decision. It found that the lower court had not erred in refusing the
applicant's request for an alternative expert examination of the
quality of the drug, as the expert opinion provided by the Bureau was
unambiguous. It also noted that it was known that the older the
poppy-tar, the better it was for opium use. It further stated that
the expert examination by the Bureau had been carried out properly
and that the lower court had relied entirely on the Bureau's report
and had therefore dismissed the applicant's request for an
alternative examination by another institution.
-
The Court of Appeal also found that although the identity of the
final buyer of the opium had not been established, it was irrelevant
to the applicant's conviction: he had been convicted for having the
opium in his possession and offering it for sale. It did not accept
the applicant's assertion that he had decided not to proceed with the
offence, finding that the lower court had correctly based its
findings on the applicant's statements in the pre-trial proceedings
in which he had described the whole event and had made a confession.
It also found that the applicant had failed throughout the
proceedings to put forward any evidence in support of his
allegations.
-
In a request to the Supreme Court for extraordinary review of a final
decision (барање
за вонредно
преиспитување
на правосилна
пресуда), the
applicant referred to the complaints he had already raised in his
appeal.
-
On 12 April 2001 the Supreme Court dismissed the applicant's request
for extraordinary review and upheld the lower courts' decisions. It
found that the lower courts had not erred in establishing the facts
and evaluating the evidence concerning the applicant's assertion that
he had decided not to proceed with the offence.
-
As to the applicant's complaint that his defence rights had been
violated as the trial court had refused to order an alternative
expert examination of the quality of the poppy-tar, the Supreme Court
stated:
“... such complaint is ill-founded because the
trial court could reasonably establish on the basis of the expert
opinion provided by the Ministry of the Interior that it was opium of
good quality. There were no doubts in the expert opinion that would
have warranted ordering a fresh examination or an opinion by other
experts. The expert opinion submitted by the Ministry of the Interior
does not contain any shortcomings or deficiencies which would raise
reasonable doubts as to its validity...”
-
On 12 April and 2 November 2001 the Supreme Court dismissed the
applicant's request for extraordinary mitigation of the penalty
imposed (барање
за вонредно
ублажување
на казната).
-
The Government have also indicated that on 29 May 2002 the Supreme
Court rejected a second request by the applicant for extraordinary
review of the final decision.
II. RELEVANT DOMESTIC LAW
1. Criminal Proceedings Act (Закон
за кривичната
постапка)
-
In accordance with section 234(1) and (2) of the Criminal Proceedings
Act (“the Act”), an expert examination is requested by a
written order of the body which carries out the procedure. The order
specifies the facts for which the examination is required and the
person appointed to perform it. If a special institution exists or if
the examination can be carried out by a State body, the examination,
especially in more complex cases, is as a rule entrusted to that
institution or body. The institution or body appoints one or more
experts to carry out the expert examination.
-
Section 243 of the Act provides that the opinion of other experts
must be ordered if the expert opinion already given contains
inconsistencies or deficiencies or if there are reasonable doubts as
to its accuracy and these cannot be eliminated by referring to the
experts who gave the opinion.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the courts had refused his request for an
alternative expert examination concerning the quality of the
poppy-tar and that they had based their decisions on the expert
reports produced by the same Ministry as had brought the criminal
charges against him. He further complained that he had been incited
by a police agent acting as an agent provocateur to commit the
offence of which he was later convicted. He also alleged that the
courts had refused to accept that he had decided to call off the sale
of poppy-tar. He alleged procedural unfairness, in breach of Article
6 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 principle of equality of arms with regard to
expert evidence
A. Admissibility
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The arguments of the parties
- The
Government objected to the applicant's complaint on two grounds:
first, that the expert opinions provided by the Bureau could not be
contested solely on the ground that the Ministry had subsequently
filed criminal charges against the applicant and, second, that in
order to justify a further expert report, the applicant should have
substantiated his criticism of the reliability of the Bureau's
opinion, but had failed to do so.
-
They submitted that the Bureau had been equipped to provide such
expert opinions and had a statutory basis in the Criminal Proceedings
Act (see paragraphs 29 and 30 above). They further maintained that it
was the practice of all the national courts to order the Bureau to
carry out certain expert analyses, even in cases where the criminal
complaint had not been brought by the Ministry. The Government
averred that there had been no grounds for calling into question the
expert opinion provided by the Bureau as it was the public prosecutor
who decided whether to accept criminal complaints filed by the local
police. Moreover, the Ministry had lodged the criminal complaint
against the applicant in accordance with its statutory duty to
prosecute certain types of offence. The complaint was corroborated,
inter alia, by the two expert opinions (nos. X-121/2000 and
X-122/2000) that had been provided by the Bureau on 28 and 30 January
2000, respectively. The first-instance court had upheld the public
prosecutor's request and ruled them admissible in evidence. It did
not order an alternative expert examination as it found no grounds
for questioning their reliability. It had jurisdiction to assess the
probative value of the evidence.
-
The Government further submitted that none of the courts which had
examined the case had found any inconsistencies or deficiencies in
the expert opinions. They argued that the applicant had merely
asserted that the opium had lost its quality because of its age, but
had failed to provide any expert analysis or statement by another
expert to support his allegation. The Government concluded that it
was irrelevant who had carried out the expert examination, as it was
undeniable that poppy-tar was a drug and that it had not played any
role in the applicant's conviction.
- The
applicant submitted that the expert opinion provided by the Bureau
had fallen foul of the requirements for a proper expert opinion: it
did not explain what kind of “analysis” had been made;
what method had been used or the percentage of the alkaloids found in
the poppy-tar. He further referred to the trial court's failure to
examine the expert who had provided the opinion, despite his alleged
request. Mr D.S.'s statement at the trial had cast doubt on the
quality of the poppy-tar and supported the request for an alternative
expert opinion. In addition, the Ministry had filed the criminal
complaint against him and at the same time submitted the expert
opinion on the quality of the poppy-tar. Lastly, he disagreed with
the Government's argument that it was irrelevant who carried out the
examination of the quality of the poppy-tar, as in his submission it
could be considered a drug only if properly produced and stored,
which in his case it had not been.
2. The Court's assessment
38. The
Court notes at the outset that the expert opinion provided by the
Bureau was the only report that existed on the quality of the
poppy-tar. In particular, the applicant had no possibility
himself to submit a private expert opinion, since the cakes of
poppy-tar had been confiscated by the authorities and he had no
possibility of access to them. The Court furthermore cannot agree
with the Government's assertion that the quality of the poppy-tar had
been irrelevant for the applicant's conviction, as it concerned the
corpus delicti of the offence. The Bureau drew up the expert
report whose transmission to the public prosecutor set in motion the
criminal proceedings against the applicant (see paragraph 12 above).
As the expert opinion supported the prosecution's case and was used
in evidence against the applicant, the defence requested the national
courts to appoint another expert to determine the quality of the
poppy-tar. This request was based on two grounds: first, that the
disputed opinion subsequently set in motion the criminal proceedings
against the applicant and, second, that the analysis had not been
carried out properly. The courts refused the applicant's request as
they found the Bureau's expert opinion conclusive.
-
The Court further observes that it was not a court which appointed
the Bureau to carry out the analysis of the poppy-tar in accordance
with section 234 of the Act (see paragraph 30 above). It was the
Ministry which had firstly drawn the expert report on its own motion
to substantiate the criminal complaint it had lodged with the public
prosecutor. The Bureau cannot, therefore, be considered as a
court-appointed expert.
40. As stated in the Court's case-law, it is easily understandable
that doubts should arise, especially in the mind of an accused, as to
the neutrality of an expert when it was his/her report that in fact
prompted the bringing of a prosecution (see Bönisch v.
Austria, judgment of 6 May 1985, Series A no. 92, § 32).
Such apprehensions may have a certain importance, but are not
decisive. What is decisive is whether the doubts raised by
appearances can be held objectively justified (see Brandstetter v.
Austria, judgment of 28 August 1991, Series A no. 211, §
44). Having regard to the particular circumstances of the case,
appearances suggest that the opinion submitted by the Bureau was more
akin to evidence against the applicant used by the prosecuting
authorities rather than a “neutral” and “independent”
expert opinion.
-
The Court reiterates that the principle of equality of
arms is part of the wider concept of a fair hearing within the
meaning of Article 6 § 1 of the Convention. It
requires a “fair balance” between the parties: each party
must be afforded a reasonable opportunity to present their case under
conditions that do not place them at a disadvantage vis-à-vis
their opponent or opponents (see Gorraiz Lizarraga and
Others v. Spain, no. 62543/00, § 56, ECHR 2004 III
and the references cited therein).
-
The Court finds that this principle was not complied with in the
instant case as the applicant's repeated requests for an alternative
expert examination were refused. In addition, it notes that there
were certain arguments as to the quality of poppy-tar. In this
respect, it considers noteworthy that the Court of Appeal made an
assumption not based on the expert report (see paragraph 23 above).
As the applicant was unable to challenge the report of the Bureau as
evidence submitted by the public prosecutor, the Court considers that
he was deprived of the opportunity to put forward arguments in his
defence on the same terms as the prosecution.
- The
Court accordingly finds that there has been a breach of Article 6 §
1 of the Convention.
2. The alleged involvement of an agent provocateur
44. The Court observes that there is nothing in the case file to
suggest that there was any involvement of a police officer acting as
an agent provocateur or that without such intervention the offence
would not have been committed. The national courts did not rely on
any evidence or statements given by anonymous sources such as
informants or agents provocateurs (see a contrario, Kostovski v.
the Netherlands, judgment of 20 November 1989, Series A no.
166, § 44; and Teixeira de Castro v. Portugal,
judgment of 9 June 1998, Reports of Judgments and Decisions
1998 IV, § 38). The Court further notes that even
assuming that Mr N.N., the final buyer of the poppy-tar, was an
undercover agent, it cannot be concluded that his involvement had any
impact on the applicant's conduct. Nor could he have exercised an
influence such as to incite the commission of the offence, as the
applicant had already been involved at an earlier stage. In addition,
the applicant did not even contact Mr N.N.: his role was over before
the poppy-tar finally reached the alleged agent provocateur.
-
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 applicant's alleged decision to call off the
sale of poppy-tar
-
In so far as the applicant's complaint may be understood to concern
the assessment of the evidence in this respect and the result of the
proceedings before the domestic courts, the Court reiterates that, it
is not within its province to substitute its own assessment of the
facts for that of the national courts unless and in so far as they
may have infringed rights and freedoms protected by the Convention
(see García Ruiz v. Spain [GC], no. 30544/96, §
28, 29, ECHR 1999 I). According to the Court's established
case-law, 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 (see the Schenk
v. Switzerland, judgment of 12 July 1988, Series A no.
140, p. 29, §§ 45-46).
-
In the present case, the Court notes that the applicant was given
sufficient opportunity to put forward his arguments concerning his
purported decision to call off the sale off poppy-tar and that these
arguments, while duly taken into account by the domestic courts, were
nevertheless rejected on the basis of reasoning which appears
consistent and devoid of any arbitrariness.
-
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
II. 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 8,337 euros (EUR) in respect of pecuniary damage
for unpaid salary plus interest between October 2001 and June 2005.
He further claimed EUR 220,000 in respect of non-pecuniary damage for
the anguish, fear and humiliation he suffered as a result of his
conviction. The applicant's wife, children and parents further
claimed EUR 270,000 in respect of non-pecuniary damage for the
anguish and humiliation they suffered as a result of the applicant's
imprisonment.
- The
Government contested the applicant's claims as unsubstantiated and
ill-founded, arguing that there was no causal link between the
alleged violation and the damage claimed. In addition, they submitted
that finding a violation should in itself constitute sufficient just
satisfaction for the applicant who would ultimately be able to
request the re-opening of the proceedings on the basis of the Court's
judgment. In such proceedings, it would be open to the applicant to
seek an order quashing his conviction or an acquittal and he would
subsequently be able to claim damages for wrongful conviction.
- The Court notes firstly that in the present case an
award of just satisfaction can only be based on the fact that the
applicant did not have the benefit of the guarantees of Article 6 §
1 before the national courts (see MeZnarić v. Croatia,
no. 71615/01, § 43, 15 July 2005). It cannot speculate as
to what the outcome of the proceedings at issue would have been had
the breach not occurred (see Bönisch v. Austria (Article
50), judgment of 2 June 1986, Series A no. 103, § 11).
The Court considers that the evidence available does not establish
the existence of a causal link between the violation of the
Convention and the pecuniary damage alleged. It therefore rejects the
applicant's claim under this head. It further rejects the
Government's argument that the applicant's claim for just
satisfaction should be decided by the national courts if the
proceedings are re-opened, as it cannot speculate on the outcome of
any such proceedings.
-
Having regard to all circumstances, the Court awards the applicant
EUR 1,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable. It rejects the claims for non-pecuniary damage
submitted by the members of the applicant's family, as they cannot
claim to have the status of victim within the meaning of Article 34
of the Convention.
B. Costs and expenses
- The applicant, who had received legal aid from the
Council of Europe in connection with the presentation of his case,
also claimed EUR 1,994.44 for the costs and expenses incurred
before the domestic courts. A fee note based on the scale rates of
the Macedonian Bar was produced for the fees of the applicant's
representative before the domestic courts. He did not claim
reimbursement of the costs and expenses incurred before the Court.
- The
Government contested the applicant's claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see Editions Plon v. France, no. 58148/00, § 64,
ECHR 2004 IV). Having regard to the fee note submitted by the
applicant, the Court finds that EUR 310 related to the lawyer's fees
for the preparation of the two requests for extraordinary mitigation
of sentence and for an application for a stay of execution of the
sentence. As these remedies could not prevent or rectify the
violation found or provide the applicant with redress, the Court
considers that they were not necessarily incurred; it therefore
rejects the applicant's claim under this head. As to the remaining
claims, it finds it difficult to assess which costs were incurred in
order to seek prevention or redress before the national courts of the
violation found by the Court. However, some of the lawyer's fees were
undoubtedly expended with a view to obtaining an alternative expert
opinion to counter the report provided by the Bureau or to limiting
the effects of the violation.
-
In these circumstances, the Court is unable to award the totality of
the sums claimed. It considers on an equitable basis that the
applicant is entitled to be reimbursed for the costs and expenses
incurred before the domestic courts the injured sum of EUR 500.
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 UNANIMOUSLY
- Declares the complaint concerning the alleged
violation of the principle of equality of arms admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(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,
i.
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, and
ii.
EUR 500 (five hundred euros) for the costs and expenses incurred
before the domestic courts, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 April 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
