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FIFTH
SECTION
CASE OF DEMERDZIEVA AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF
MACEDONIA
(Application
no. 19315/06)
JUDGMENT
STRASBOURG
10 June
2010
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 DemerdZieva and
Others 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,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 Маy
2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19315/06) 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 three Macedonian
nationals, Ms Nataša DemerdZieva (“the first
applicant”), Mr Aleksandar Šuklev (“the second
applicant”) and Mr Zivko DemerdZiev (“the third
applicant”), on 4 April 2006. On 19 June 2006 the third
applicant died. Ms Dobrila DemerdZieva, his wife, provided a letter
of authority expressing her intention to continue the application in
his name.
- The
applicants were represented by Mr T. Torov, a lawyer practising in
Stip. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicants alleged, in particular, that they had been denied the
right to a fair trial, in particular because the Supreme Court had
erroneously declined to examine their appeal on points of law as out
of time.
- On
5 January 2009 the President of the Fifth Section decided to
communicate these complaints to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1979, 1986 and 1941 respectively and live in
Skopje.
- On 19 November 2004 the Gevgelija Court of First
Instance (“the trial court”) convicted the applicants of
drug trafficking and sentenced them to three, six and four years’
imprisonment respectively. The trial court established that on 22
June 2004, a certain N. (the last name of Mr K.N., as established in
the course of the domestic proceedings, later referred to as
Mr K.N.) and the third applicant had arrived at the first
applicant’s house where she lived with the second applicant,
her stepson. The applicants bought 1,012 g of heroin from N. for
7,500 euros (EUR). After keeping some drugs back at the house, the
applicants divided the remaining 952 g into two packs to sell to
Mr N.N., an unidentified end buyer whom they had arranged to
meet in a car park near Gevgelija. The second applicant hired a taxi
and the remaining applicants took N.’s car to meet Mr N.N. The
police stopped the cars and found the drugs in the taxi. N. escaped.
The trial court established these facts on the basis, inter alia,
of the statements of the second and third applicants given in the
pre-trial proceedings. The court also referred to the first and third
applicants’ statements at the hearing, notably that they had
been victims of a constructed scenario and that they had not known N.
before the date when the offence was committed, but disregarded them
as self-serving. The testimonies of two witnesses, as well as items
of real evidence, were also taken into account.
- The
applicants complained, inter alia, that they had been set up
to commit the offence by N., an alleged agent provocateur,
whom police had allowed to leave the scene. They further complained
that no attempt had been made to uncover the truth as regards N.’s
involvement in the commission of the offence.
- At
a public session (јавна седница)
of 25 March 2005, in the presence of the public prosecutor, the
applicants and their lawyer, the Skopje Court of Appeal dismissed the
applicants’ appeal and upheld the trial court’s decision.
It stated that efforts to discover N.’s whereabouts had been
unsuccessful. It further argued that the trial court had based its
decision on considerable evidence which, taken as a whole, had
confirmed the applicants’ involvement in the commission of the
crime.
- The
trial court sent this decision to the applicants by mail. A stamp
“Skopje-Madzari” of 13 April 2005 was affixed on the post
slip returned to the trial court. According to the Government, this
stamp was affixed by the detention centre where the applicants were
being detained pending the proceedings in question. According to
three other return receipts bearing the detention centre’s
receipt stamp, this decision was received by the latter on 14 April
2005. Each applicant signed and dated these receipts: the first
applicant received the decision on 18 April 2005, the second
applicant on 14 April 2005 and the third on 16 April 2005.
- On
16 May 2005 the applicants lodged an appeal on points of law with the
Supreme Court. They set out its general basis in a succinct manner
and stated that detailed submissions would follow.
- In
submissions of 30 May 2005, the applicants provided full factual and
legal grounds of appeal. They complained, inter alia, of
having been entrapped into committing the offence by N., whose real
name was Mr K.N. They provided his whereabouts and stated that he had
been actively involved in the crime and had operated as an agent
provocateur, under the guidance of the police, who had sent him
to incite the second applicant to buy the drugs, given his previous
criminal record in that respect. They further maintained that Mr K.N.
had cooperated with the police in other cases, setting up other
people in order to help his cousin who was serving a prison sentence
for drug trafficking. The police’s involvement in the crime was
supported, inter alia, by the following: they had allowed Mr
K.N. and Mr N.N., the unidentified end buyer, to leave the scene at
the time of the applicants’ arrest; the drugs had not been
found in a routine police check, but on the basis of advance
information about their whereabouts; and two detectives with known
identities had been present at the scene. They further complained
that the courts had failed to take evidence from these two detectives
and other police officers who had been present at the scene. The
applicants made reference to the Court’s case-law on the impact
of an agent provocateur on convicts’ rights under
Article 6 of the Convention.
- On
6 September 2005 the Supreme Court rejected (отфрла)
the appeal on points of law as out of time. It did so after it
had obtained submissions from the public prosecutor in which the
latter had requested that the appeal be dismissed on the merits. The
court established that the Court of Appeal’s decision had been
served on the applicants on 13 April 2005.
- In
submissions of 7 and 25 November 2005 respectively, the applicants
asked the Supreme Court to rectify the error in respect of the date
of service of the Court of Appeal’s decision. In support of
their request they submitted a copy of the return receipts bearing
the detention centre’s receipt stamp and their signatures (see
paragraph 9 above). This request remained unanswered.
II. RELEVANT DOMESTIC LAW
- Under
section 84 of the Criminal Proceedings Act, it is neither the date of
service of the judgment, nor the date of the event, that is taken to
be the date from which the time-limit starts to run. It is the next
day that is taken as the starting date for calculation of the
time-limit. If the last day of the time-limit falls on a public
holiday, Saturday or Sunday, the time-limit expires at the end of the
next working day.
- Section
411(1) and (2) provides that a person convicted by a final decision
and sentenced to imprisonment may lodge an appeal on points of law
(барање за
вонредно
преиспитување
на правосилна
пресуда). The appeal
may be submitted within thirty days of the date on which the
convicted person was served with the decision.
- Other
provisions relevant to the present case were described in the cases
of Gorgievski and Mamudovski (see Gorgievski v. the
former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 6 May
2008, and Mamudovski v. the former Yugoslav Republic of Macedonia
(dec.), no. 49619/06, 10 March 2009).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of
the Convention that the principle of equality of arms had been
infringed, since the courts had not examined the alleged agent
provocateur, whose active involvement had secured their
conviction, or the detectives and police officers who had been
present at the scene. They also complained that their conviction had
been based only on evidence obtained by the agent provocateur;
that the courts’ decisions had not been reasoned; and that the
Supreme Court had denied their right of access to a court by having
erroneously declined to examine their appeal on points of law. In
connection with this latter complaint, they also invoked Article 13
of the Convention and Article 2 of Protocol No. 7. The Court
considers that the applicants’ complaints under these latter
Articles are in fact a restatement of the complaints under Article 6
and should be examined accordingly. 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 ... by [a]
... tribunal ...”
A. The ‘right of access to a court’ complaint
1. Admissibility
- The
Government did not raise any objection as to the admissibility of
this complaint.
- The
Court notes at the outset that the third applicant died on
19 June 2006. It considers that, for the reasons detailed
in the cases of Ivanovski and Others and Stojkovic,
which likewise apply to this case, the third applicant’s widow
has the requisite standing under Article 34 of the Convention in
respect of his complaints (see, mutatis mutandis, Ivanovski
and Others v. the former Yugoslav Republic of
Macedonia, no. 34188/03, § 18,
26 November 2009, and Stojkovic v. the former Yugoslav
Republic of Macedonia, no. 14818/02, § 25, 26, 8 November
2007).
- It
further considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
a) The parties’ submissions
- The
applicants reiterated that the Supreme Court had erroneously rejected
their appeal on points of law as out of time. They also contested
the availability of a request for
reinstatement of the proceedings (враќање
во поранешна
состојба) in the
criminal proceedings.
- The
Government submitted that the applicants could have made a request,
after having received the Supreme Court’s decision, for
reinstatement of the proceedings. On the substance, the applicants
had not been denied the right of access to a court. The Supreme
Court, however, had decided the case on the basis of the case file as
forwarded by the trial court, which allegedly had not contained a
copy of the return receipts bearing the detention centre’s
receipt stamp and the applicants’ signatures (see paragraph 9
above). They conceded that a manifest error had been made in the
present case, which had been isolated and had not represented a
systemic problem. Consequently, they invited the Court to decide the
case in accordance with its jurisprudence.
b) The Court’s consideration
- As
regards the Government’s argument that the applicants failed to
seek reinstatement of the proceedings, the Court notes that the
Supreme Court, as the court of final appeal, considered the
applicants’ appeal on points of law and rejected it as out of
time. No ordinary remedy lay against this decision. The applicants’
request of 7 November 2005 (see paragraph 13 above) was to no avail.
Furthermore, no jurisprudence was submitted to support the
Government’s argument that a request for reinstatement of the
proceedings against the Supreme Court’s decision was available
and effective.
-
It further observes that the applicants were convicted and sentenced
to a term of imprisonment. An appeal on points of law was therefore
an effective remedy against the final decision of 25 March 2005 which
upheld their conviction (see Gorgievski, cited above, and
Mamudovski, cited above). On 16 May 2005 the applicants lodged
an appeal on points of law with the Supreme Court. The detailed
grounds of the appeal were dated 30 May 2005 (see paragraphs 10
and 11 above). The Supreme Court rejected the appeal as having been
submitted outside the thirty-day time-limit provided for in section
411 of the Criminal Proceedings Act (see paragraph 15 above). In
doing so, the court took 13 April 2005 as the date of service of the
Court of Appeal’s decision. The court did not, however, take
into consideration the copy of the return receipts bearing the
detention centre’s receipt stamp and the applicants’
signatures. This was because, as the Government conceded, they had
not been included in the case file forwarded to the Supreme Court.
While the Court cannot speculate which authority affixed the stamp of
13 April 2005, it is clear that the Court of Appeal’s decision
was received by the detention centre on 14 April 2005. According to
the applicants’ signatures on those receipts, the first
applicant received this decision on 18 April 2005, the second
applicant on 14 April 2005 and the third on 16 April 2005.
In these circumstances, the applicants’ appeal on points of law
of 16 May 2005 was, in view of section 84 of the Criminal Proceedings
Act (see paragraph 14 above), submitted in good time.
- The
Court has already found that the rules setting time-limits for
lodging appeals must not be applied in a way which prevents litigants
from using an available remedy. The issue is one of legal certainty.
The problem in the present case is that a procedural rule has been
applied in such a way as to prevent the applicants’ appeal
being examined on the merits, with the attendant risk that their
right to the effective protection of the courts would be infringed
(see, mutatis mutandis, Zvolský and Zvolská
v. the Czech Republic, no. 46129/99, § 51, ECHR
2002-IX).
- In
the circumstances of the present case, the Court considers that the
Supreme Court erroneously rejected the applicants’ appeal on
points of law of 16 May 2005 depriving them of their right of
access to a court (see, mutatis mutandis, Fetaovski v. the
former Yugoslav Republic of Macedonia, no. 10649/03, §§
37-41, 19 June 2008).
- There
has accordingly been a violation of the applicants’ right of
access to a court within the meaning of Article 6 § 1 of the
Convention.
B. The remaining complaints under Article 6 of the Convention
- The
applicants further complained under Article 6 of the Convention that
an agent provocateur had been involved in their conviction,
that the courts had not examined him or the detectives and police
officers who had been present at the scene, and that therefore, their
decisions had not been reasoned.
- The
Court notes that these complaints were raised in the applicants’
appeal on points of law before the Supreme Court (see paragraph 11
above). Having regard to its finding that the latter erroneously
declined to examine this appeal as out of time, the Court cannot, at
this point, examine these complaints. It is so since it cannot
speculate as to what the outcome would have been had the Supreme
Court declared the applicants’ appeal admissible and proceeded
to examine it on the merits (see, mutatis mutandis, Nikolov
v. the former Yugoslav Republic of Macedonia, no. 41195/02,
§ 29, 20 December 2007).
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
first applicant claimed EUR 24,181 in respect of pecuniary damage for
loss of earnings between 22 June 2004, the date of her dismissal, and
the present. Ms Dobrila Demerdzieva claimed EUR 13,580 for loss of
pension covering the period from 19 June 2006 (the date of the third
applicant’s death) until the date on which he would have turned
75 years old, this being the average life expectancy. In that
connection she submitted that the third applicant had died from a
stroke while in prison, which he had suffered as a direct consequence
of the proceedings in question. In respect of non-pecuniary damage,
the first applicant claimed EUR 15,000 and the remaining applicants
claimed EUR 20,000 each.
- The
Government contested these claims as unsubstantiated. They further
stated that there was no causal link between the alleged violations
and the pecuniary damage claimed.
- The
Court considers that the basis for an award of just satisfaction in
the present case must be the denial of the applicants’ right of
access to a court under Article 6 § 1 of the Convention. It
cannot speculate as to what the outcome of the impugned proceedings
would have been had there been no violation on this ground. It
therefore finds no causal link between the pecuniary damage claimed
and its finding of a violation of Article 6. Accordingly, the Court
makes no award under this head. On the other hand, the applicants
must have suffered non-pecuniary damage as a result of the violation
of their right of access to a court, which, in principle, is best
remedied by reopening the proceedings at national level. Deciding on
an equitable basis, the Court awards each applicant the sum of EUR
2,000, plus any tax that may be chargeable
- However,
the Court is of the opinion that the most appropriate form of redress
in cases where it finds that, in breach of Article 6 § 1 of the
Convention, an applicant has not had access to a tribunal, would, as
a rule, be to reopen the proceedings in due course and re-examine the
case in keeping with all the requirements of a fair trial (see
Kostadin Mihaylov v. Bulgaria, no. 17868/07, §§ 59 and
60, 27 March 2008).
B. Costs and expenses
- The
applicants also claimed the equivalent of EUR 6,175 for costs and
expenses incurred before the domestic courts and EUR 6,186 for those
incurred before the Court. These figures included legal fees for the
applicants’ representation before the Court and domestic
courts, based on the scale rates of the Macedonian Bar, as well as
mailing and copying expenses. The applicants provided an itemised
list of the legal fees. No document was submitted in support of the
mailing and copying expenses.
- The
Government contested these claims as unsubstantiated and excessive.
They submitted that no evidence had been submitted to show that they
had been actually incurred, let alone necessary in order to seek
prevention of and redress for the alleged violations complained of
before the Court.
- 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). Having regard to the fee note submitted by the applicants, the
Court considers that the costs and expenses claimed in respect of the
proceedings before the domestic courts were not expended with a view
to prevent or rectify the violation found or provide the applicants
with redress; it therefore rejects the applicants’ claim under
this head. As regards the costs and expenses claimed in respect of
the proceedings before the Court, it finds, regard being had to the
documents in its possession and the above criteria, the amount
claimed to be excessive and partly unsubstantiated and awards instead
the sum of EUR 2,500, plus any tax that may be chargeable to the
applicants.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the applicants’
right of access to a court;
- Holds that there is no need to examine the
remaining complaints under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the first and second applicants, as
well as the third applicant’s widow, within three months of the
date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
i)
the sum of EUR 2,000 (two thousand euros) each in respect of
non-pecuniary damage, plus any tax that may be chargeable;
iii)
the joint sum of EUR 2,500 (two thousand five hundred euros) in
respect of costs and expenses, plus any tax that may be chargeable to
the applicants;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
