FIRST SECTION
CASE OF
TRAMPEVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no.
4570/07)
JUDGMENT
STRASBOURG
10 July 2012
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 Trampevski v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
PeerLorenzen,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque,
Linos-AlexandreSicilianos,
ErikMøse, judges,
andSøren Nielsen, Section Registrar,
Having deliberated in private on 19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
4570/07) 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 Tome
Trampevski (“the applicant”), on 16 January 2007.
The applicant was represented by Mr N. Stojkov, a
lawyer practising in Bitola. The Macedonian Government (“the Government”) were
represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded
subsequently by their present Agent, Mr K. Bogdanov.
The applicant alleged, in particular, that he had
not been able to confront the witnesses whose statementsgiven in the pre-trial
proceedings had served as a basis for his conviction.
On 6 May 2011this complaint was communicated 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 1958 and lives in Bitola. He is a taxi driver.
A. Pre-trial proceedings concerning the applicant
1. Events of 2 November 2005
On 2 November 2005 an investigating judge of the
Bitola Court of First Instance (“the trial court”) heard, in the presence of
the public prosecutor alone, oral evidence from E.J and R.M., suspected
migrantsfrom Albania (“the migrants”), who had attemptedto enter Greece illegally from the territory of the respondent State. Both of them waived the right
to an interpreter and gave evidence in Macedonian. According to the court
record, they gave details as regards their travelfrom AlbaniatoBitola, a city located near the border with Greece. Both confirmed that at Bitolabus
station, they had asked a taxi driver to take them to Greece, but the latter had refused because they had no travel documents.
E.J. further stated:
“...My friend R. (referring to R.M.) stopped another taxi
driver. He was the one who drove us to a water canal. We told him that we
wanted to go to Greece and that we didn’t have any travel documents, but he
said:‘I will take you, but each of you will have to pay 160 euros (EUR)’. We
immediately paid. While driving, he advised us, in case the police appeared, to
leave the car and run. In case we were apprehended, we were supposed to deny
that we knew him or that he knew what our final destination was. We arrived at
some place and he told us which way to follow. He told us that we would reach a
water canal. After we crossed it, we ... would be in Greece. Before we got into
the cab, the driver told us:‘I served three years’ imprisonment in Greece and I know how to get people into Greece’... After he had told us which way to go, he went
back. We continued walking and we reached the canal. We couldn’t cross it
because it was full of water. We went back. ... The police stopped us...The cab
was white ... The taxi driver did not give any money back to me. My friend R.
was sitting in the front seat, he talked with him ... We haggled about the
price, namely that EUR 160 was too much, that we didn’t have money, but he told
us:‘it’s impossible, if the police arrest me, I’ll go to jail.’”
R.M. stated:
“... We stopped a taxi driver who asked where we would like to
go. E. and I told him that we wanted to go toGreece. He asked if we had any
travel documents, [like] a passport[or] licence, [and] we said that we were not
in possession of any. He told us:‘if you have no documents, I can take you
through another road where there are no police, but you have to pay EUR 160
each or EUR 320 in total’. We told him that we didn’t have a lot of money, so
he reduced the price to EUR 100 each. Actually, we paid EUR 160 each, we
entered the cab and while driving, we asked him to reduce the price. He agreed
to drive us for EUR 100 each and when we stopped, he returned the remainder. We
arrived at some place, he hid the car and told us:‘you’ll take this road,
you’ll reach a water canal, which you’ll cross ... and you’ll be in Greece’. He
left us there and he went back to Bitola. We walked, as he advised us, towards
the canal, but we couldn’t cross it because it was full of water. We joined the
road again, I know that we saw a restaurant, then we passed by a police
station. We continued walking and after a kilometre, two police officers
stopped us ... The taxi driver that drove us ... had a white cab ... While
driving, he (the taxi driver) told us ‘if the police stop you, you’ll say that
you have paid EUR 10 each and you won’t say that you don’t have visas’. We were
also supposed to deny that the taxi driver knew what our final destination
was...”
E.J. and R.M. were shown photographs of nine
people, one of whom was the applicant. Both of them identified the applicant as
the taxi driver who had driven them on the critical date.
On the same date, the public prosecutor
successfully requested that the investigating judge openan investigation
concerning the applicant on grounds of a reasonable suspicion of smuggling
migrants.That request was not based on the migrants’ statements. The
investigating judge heard the applicant, who was assisted by counsel. According
to the depositions taken on that date, the applicant stated:
“I drive an orange Mitsubishi van ... It was 6.45 pm. when I
came back from Ohrid. I stopped at the bus station, which is a regular taxi
post. There are two small kiosks where I often drink coffee. I was with
D.M.(who was later in the proceedings identified as M.T.) ... a saleswoman was
also present ... the two witnesses came and asked me, in Macedonian, if I could
drive them to Bukovo village. I accepted and asked that they pay 150 Macedonian
denars (MKD)(equivalent to EUR 2.50) ... E.J. said that they did not have a lot
of money, so I asked them to pay MKD 120. After I left them in Bukovo, I came
back immediately ... I didn’t ask if they had travel documents because they
spoke Macedonian and I didn’t suspect that they were foreign nationals ... It
is not true that I asked them to pay in euros. I served a prison sentence of
three and a half years in Greece for such a crime and I won’t drive anyone,even
for a million euros ...The persons concerned (referring to E.J. and R.M.) were
not carrying any bags or other baggage with them...”
In an identification parade organised the same
day, E.J. and R.M. identified the applicant as the taxi driver who had driven
them on the critical date.
As stated by the Government, at 7.30 pm. on 2
November 2005 the migrants were deported to Albania.
2. Other actions taken in the pre-trial proceedings
On 7 November 2005 the applicant requested that
the trial court examine Ms S.S. and Mr M.T., eyewitnesses who had been present
at Bitola bus station when he had agreed to drive the migrants.
On 8 November 2005 the investigating judge heard
T.S. and B.G., police officers who had apprehended the migrantsnear the border
with Greece. According to their statements, on 1 November 2005 they had
apprehended the migrants at the crossroads ata place called Velushina(Veluska
raskrsnica). One of them had been carrying an Albanian identity card and a
certain amount of Macedonian denars. The migrants had been fluent in
Macedonian. They had told them that a taxi driver had taken them to a nearby
location which they could not specify. According to T.S., the migrants had
stated that the taxi driver had asked them to pay EUR 100 each for the journey.
According to B.G., the migrants had paid EUR 150 each. The migrantshad said
that theywereunemployed and wanted to find a job in Greece.
B. Criminal proceedings against the applicant
On 11 November 2005 the public prosecutor lodged
an indictment charging the applicant with smuggling of migrants. According to
the indictment, at 6.45 pm. on 1 November 2005 the applicant drove the migrants
from Bitola bus station to the Velushina crossroads, from where they were
supposed to enter Greece illegally, but they were stopped by border police of
the respondent State. The migrants paid the applicant EUR 100 each for the
journey. The public prosecutor requested that the trial court summon T.S. and
B.G. and read out the migrants’ statements given in the pre-trial proceedings,
as well as admit in evidence court records concerning the identification of the
applicant.
At a hearing held on 23 March 2006, the
applicant confirmed his statement given in the pre-trial proceedings. After the
trial court had drawn the applicant’s attention to certain aspects of the
migrants’ statements, the applicant contested the assertion that they had paid
him EUR 100 each and claimed that he had asked that each migrant pay MKD 120
instead. He further stated that he had not talked to the migrants during the
journey. Lastly, he denied that he had told them that he had served a prison
sentence in Greece.
Ms S.S., the saleswoman who had been in the
kiosk at the bus station on the critical date, statedthat the migrants had
asked the applicant to drive them to the village of Bukovo. One of them had
bought chewing gum and cigarettes in order to obtain change. She had not
suspected that the migrants had not been citizens of the respondent State.
Mr M.T. confirmed that one of the migrants had
entered into the kiosk in order to ask for change. He had heard the discussion
between the migrants and the applicant and stated that they had agreed a price
for a journey to Bukovo, for which the migrants had been required to pay
MKD 120-150 each.
The next and last hearing before the trial court
was fixed for 13 April 2006. In the absence of a request for
examination of any witnesses, the trial court read out the migrants’ statements
given before the investigating judge on 2 November 2005. According to the court
record of that date, the court did not ask the applicant or his lawyer whether
they agreed to the reading out of the depositions. There is also no indication
that both the applicant and his counsel stated that they had no objection to
the reading out.
In making concluding remarks, the applicant’s
legal representative analysed the migrants’ statements and complained that the
applicant had not been able to confront them regarding the drop-off location
and the price of the journey. As to the latter, he also noted that the migrants
had provided inconsistent evidence.
On the same date, the trial court convicted the
applicant and sentenced him to one year’s imprisonment. It established that he
had driven the migrants from Bitolabus station to the Velushina crossroads,
from where they had walked towards the border with Greecebut had subsequently
been arrested by the police. The migrants had paid EUR 100 each for the
journey. The court established that the facts concerning the migrants’ journey
and the sequence of events after they had entered the respondent State were as
they had described in their written statements of 2 November 2005. Relying
on this evidence, the court further established that the applicant had been
aware that E.J and R.M. had been migrants from Albania who had entered the
respondent State illegally and had no travel documents in their possession. In
this connection, it accepted that the applicant had told them that he had
served a prison sentence in Greece and that he knew how to get people into Greece. It acknowledged the inconsistencies between the applicant’s and the migrants’
evidence as regards the drop-off location. However, it established that the
applicant had driven them to the Velushina crossroads on the basis of the fact
that T.S. and B.G. had apprehended the migrants at that location, which was
often used for smuggling migrants. It also examined the evidence given by S.S.
and M.T., but disregarded it as unreliable.
On 22 June 2006 the applicant, relying on
sections 355 §§ 1 (11) and 2 of the Criminal Proceedings Act (the “Act”, see
paragraph 28 below), appealed arguing,inter alia, that on the basis of
the evidence given by the migrants the trial court had established that (i) he
had known that they had been illegal migrants, (ii) he had transferred them to
the Velushina crossroads for EUR 100 each and (iii) they had each paid that
sum. In this connection, he claimed that it had been unreasonable for him
tosuspect that E.J and R.M. had been migrants from Albaniabecause they had been
fluent in Macedonian and there were many Albanians who lived in Bitola and its surroundings. He complained that he had not been given the opportunity to
confront them during the investigation in order to establish the drop-off
location and the price of the journey. As to the latter point, he stated that
the migrants had provided inconsistent evidence.
At a public session held on 17 October 2006, the
Bitola Court of Appeal dismissed the applicant’s appeal and confirmed the trial
court’s judgment. After detailed analysis of the migrants’ statements, which it
regarded as clear and consistent, the court found no reasons to depart from the
factsas established by the trial court with the exception of the drop-off
location, which had been irrelevant to the applicant’s guilt. It also considered
as irrelevant the fact that the migrants had been fluent in Macedonian since,
as they had confirmed in their statements, they had clearly told the applicant
that they had intended to enter Greece illegally. The court did not address the
applicant’s complaint that he had been denied the right to cross-examine the
migrants.
On 13 November 2006 the applicant lodged, on the
basis of section 413 of the Act (see paragraph 31 below),an appeal on points of
law (барање за
вонредно
преиспитување
на правосилна
пресуда)with
the Supreme Court,in which he restated that he had not been allowed to
confrontE.J and R.M. during the investigation in order to establishwhether they
had been Albanian migrants, how much they had paid him for the journey and
whether he had driven them to Bukovo, which was three kilometres away from
Bitola bus station and fifteen kilometres away from the border with Greece, or
to the Velushina crossroads, which was only one kilometre away from the border.
He further denied that he had told the migrants about his prison sentence in Greece.
On 20 December 2006 the Supreme Court dismissed
the applicant’s appeal on points of law,finding no grounds to depart from the
facts as established and the reasons given by the lower courts. It indicated
that it was beyond its competence to examine the applicant’s complaints under
section 355 § 1 (11) of the Act and to reassess the facts as established.
However, in view of section 409 of the Act (see paragraph 29 below), it found
no cogent elements that would conflict with the facts asestablished. It did not
comment on the applicant’s complaint that he had not been allowed to
cross-examine the migrants.
C. Other proceedings against the applicant
According to the applicant, on an unspecified date in
2003 his pre-trial detention was ordered on account of smuggling migrants. He
was released after three days due to a lack of evidence against him. He did not
submit any court decision in this respect.
In other criminal proceedings launched in 2006,
the applicant was charged with the smuggling of an Albanian migrant. According
to a deposition made on 14 December 2006, MrN.M., a witness examined on the
applicant’s request, admitted that he had transferred the migrant to the border
crossing with Greece. The applicant did not submit any other documents
concerning these proceedings.
II. RELEVANT DOMESTIC LAW
Accordingtosection 355 §§ 1 (11) and 2 oftheCriminalProceedings
Act 1997, asin forceattherelevanttime, therewasasubstantialproceduralflawifthejudgmentconcerned
contained no orcontradictoryreasoning or there had been a violation of the
defence rights at the trial.
Section 409 provided that if there was
considerable doubt as to the relevant facts established in a judgment against
which anappealon points of law had been lodged with the result that it was not
possible to review it on the merits, the court should quash the judgment and
order a retrial before the same or another trial court.
Section 411 §§ 1 and 2 provided that a person
convicted by a final judgment and sentenced to imprisonment couldlodge an
appeal on points of law (барање
за вонредно
преиспитување
на правосилна
пресуда).
Under section 413, an appeal on points of law
could be submitted in the event of a violation of the Criminal Code, the
existence of any of the procedural flaws specified in section 355 § 1 (1), (5),
(8), (9), and(10) of the Act,or a violation of defence rights of the convicted
person by the trial court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
Without relying upon any Article of the
Convention, the applicant complained that he had been denied the right to a
fair trial because he had not had the chance to confront the migrants. The
Court considers that this complaint should be analysed under Article 6 §§ 1 and
3 (d) of the Convention, which, in so far as relevant, read as follows:
“1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
not exhausted domestic remedies. In particular,he had not clearly raised this
complaint before the national courts, at least in substanceand in compliance
with the formal requirements laid down in domestic law. In this connection,he
had not complained during the investigation that he had not been able to
confront the migrants, he had not objected when the migrants’ statements had
been read out at the trial andhe had not requested during the trial that the
court examine the migrants. In his appeals, the applicant had limited himself
to complaining that he had not been allowed to cross-examine the migrants during
the investigation. Furthermore, he had not raised a complaint in relation to
his right to mount a defence. A reference to the statutory provisions (sections
355 § 2 and 413 of the Act, see paragraphs 28 and 31 above) that provided for
the right to mount a defence, without any further explanation, was
insufficient.
The applicant contested the Government’s
arguments, stating that it was not for the defence to correct errors committed
by prosecuting or judicial authorities. A person was considered innocent unless
otherwise established by a final court decision. If facts relevant for a
criminal offence could not be established, the courts were required not to
decide the matter to the detriment of the accused.
2. The Court’s assessment
The Court reiterates that the purpose of the
exhaustion rule contained in Article 35 § 1 of the Convention is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are submitted to the
Court. Accordingly, this rule requires applicants to first use the
remedies provided by the national legal system, thus dispensing States from
answering before the European Court for their acts before they have had an
opportunity to put matters right through their own legal system. The rule is
based on the assumption that the domestic system provides an effective remedy
in respect of the alleged breach (see
Aksoy v. Turkey, 18 December 1996, § 51, Reports
of Judgments and Decisions 1996-VI).
While in the context of machinery for the
protection of human rights the rule of exhaustion of domestic remedies must be
applied with some degree of flexibility and without excessive formalism, it
does not merely require that applications should be made to the appropriate
domestic courts and that use should be made of remedies designed to challenge
impugned decisions which allegedly violate a Convention right. It normally also
requires that the complaints intended to be made subsequently at the
international levelshould have been aired before those same courts, at least in
substance and in compliance with the formal requirements and time-limits laid
down in domestic law (seeFressoz and
Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, andCardot
v. France, 19 March 1991, § 34, Series A no. 200).
In the present case, the Court notes that on 2
November 2005, one day after thecritical event, the investigating judge, in the
presence of the public prosecutor alone,examined the migrants. The identity of
the applicant, as potential perpetrator of the crime, was unknown until the
migrants had identified him on the photographs and in the line-up organised on
that date. The applicant could not seek to confront the migrants until their
identity and the fact that they had produced oral evidence in the investigation
had been brought to his attention, which, according to the case file, wason 11
November 2005, the date on which the public prosecutor submitted the indictment
(see paragraph 15 above). In the concluding remarks before the trial court (see
paragraph 20 above) and in his appeals before the Appeal and Supreme Courts (see
paragraphs 22 and 24 above), the applicant complained that he had not been able
to confront the migrants during the investigation. In doingso, he contested the
credibility of their evidence, pointing to concrete aspects of their
statements. The Court notes that the applicant’s appeals were based,inter
alia, on sections 355 § 2 and 413 § 1(3) of the Act (see paragraphs 28 and
31 above), according to which an alleged violation of defence rights was a
valid ground for quashing a defective judgment. The appellate courts were
accordingly well placed to consider whether the proceedings, in view of the
applicant’s complaint, were fair (see Al-Khawaja and Tahery v. the United Kingdom[GC], nos. 26766/05 and 22228/06, § 35, 15
December 2011). It is true that the applicant did not explicitly
phrase this complaint as a violation of his right to mount a defence. However,
the Court considers that it would be unduly formalistic to interpret this
failure to the applicant’s detriment, in particular given that it was the only
complaintconcerninghis defence rights. Lastly, with regard to the Government’s
submissions that the applicant had neither objected that the trial court had
read out the migrants’ statements (see paragraph 19 above) nor explicitly requested
that the migrants be heard at the trial, the Court considers, in the first
place, that the applicant cannot be regarded as having waived, in an
unequivocal manner, his rights under Article 6 as to the opportunity to examine
the migrants (see Vladimir Romanov v. Russia, no. 41461/02, § 98, 24
July 2008), and secondly, that the Contracting States are required to take
positive steps, in particular to enable an accused to examine or have examined
witnesses against him (see Sadak and Others v. Turkey, nos. 29900/96,
29901/96, 29902/96 and 29903/96, § 67, ECHR 2001‑VIII). In such
circumstances, the Court is convinced that the applicant had raised, at least
in substance and in compliance with the formal requirements laid down in
domestic law, the complaint that he had not been allowed to confront the
migrants. Consequently, the Government’s non-exhaustion objection must be
rejected.
The Court concludes, furthermore, that this
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicantsubmitted that his conviction had
been based, to a decisive extent, on the evidence given by the migrants. He
further denied that the migrants’ deportation to Albania had had any bearing on
the fact that he had not been allowed to cross-examine them.
The Government accepted that the applicant had
not had aconfrontation with the migrants at any stage of the proceedings.
However, this was due to the fact that the authorities of the respondent State
had had no means to ensure the attendance of the migrants at the trial after
they had been deported to Albania (see Solakov v. the former Yugoslav
Republic of Macedonia, no.47023/99, ECHR 2001‑X).On the other hand,
the applicant had been allowed to present his case, to contest the migrants’
statements and to confront T.S. and B.G.
Furthermore, the Government contested the
assertion that the evidence given by the migrants had been the “sole” or
“decisive” evidence against the applicant. In this connection, they argued that
other evidence had been admitted at the trial which had supported the
applicant’s guilt. The domestic courts had considered all available evidence
and had given sufficient reasons for taking no account of the evidence proposed
by the defence. Lastly, the applicant had not sought to confront the migrants
in order to establish whether he had known, on the critical date, that they had
not been in possession of any travel documents and that they had intended to
enter Greece illegally. The migrants’ statements, to the extent challenged by
the applicant, had been irrelevant for his conviction, as the Court of Appeal
had stated in its judgment of 17 October 2006 (see paragraph 23above).
2. The Court’s assessment
The Court recalls that the guarantees in
paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing
set forth in paragraph 1 of this Article which must be taken into account in
anyassessment of the fairness of proceedings. In addition, the Court’s primary
concern under Article 6 § 1 is to evaluate the overall fairness of the criminal
proceedings (seeTaxquet
v. Belgium [GC], no. 926/05, § 84, 16 November 2010).
It further reiterates that, as a general rule,
it is for the national courts to assess the evidence before them, as well as
the relevance of the evidence which defendants seek to adduce (see Atanasov v.
the former Yugoslav Republic of Macedonia (no. 2), no. 41188/06, § 33, 19 April 2011).
All the evidence must normally be produced in
the presence of the accused at a public hearing with a view to adversarial
argument. However, the use as evidence of statements obtained at the stage of a
police inquiry and judicial investigation is not in itself inconsistent with
Article 6 §§ 1 and 3 (d), provided that the rights of the defence have been
respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and
question a witness against him – either when he was making his statements or at
a later stage of the proceedings (see Saïdi v. France, 20 September
1993, § 43, Series A no. 261‑C; Isgrò v. Italy, 19 February
1991, § 34, Series A no. 194-A; and Vladimir Romanov, cited
above, § 100).The rights of the defence are restricted to an extent that is
incompatible with the requirements of Article 6 if the conviction is based
solely, or to a decisive extent, on the depositions of a witness whom the
accused has had no opportunity to examine or to have examined, either during
the investigation or at trial (see Khametshin v. Russia, no.
18487/03, § 32, 4 March 2010).
The Court considers that the present case must
be distinguished from the Solakov case, in which the domestic courts
clearly stated that there were valid reasons making it impossible or extremely
difficult to produce the relevant witnesses at the trial (see Solakov,
cited above, §§ 25 and 30). In the present case, the trial court made no attempt
to find the migrants after they had been deported,nor did it give any explanation
justifying the failure to ensure their attendance at the trial. On the other
hand, it is not in doubt that the applicant could have confronted the migrants
during the investigation while they were still in the respondent State (see
paragraph 11 above). Neither the domestic courts nor the respondent Government
stated that there existed any particular circumstances justifying the failure
to organise a confrontation at the investigation stage.
The Court must therefore assess the impact that
the applicant’s inability to examine the migrants had on the overall fairness
of his trial. In this connection it must examine the significance of the
untested evidence in order to determine whether the applicant’s rights were
unacceptably restricted. Three issues need to be examined: first, whether it
was necessary to admit the migrants’ statements; second, whether their untested
evidence was the sole or decisive basis for the applicant’s conviction; and
third, whether there were sufficient counterbalancing factors including strong
procedural safeguards to ensure that the trial, judged as a whole, was fair
within the meaning of Article 6 §§ 1 and 3(d) (see Al-Khawaja and Tahery,
cited above, § 152).
It is not in doubt that the interests of justice
were in favour of admitting in evidence the migrants’ statements given before
the investigating judge.They were directly involved in the incident and were
the only eyewitnesses who could have produced evidence relevant for the
applicant’s conviction. The other evidence was that given by T.S. and B.G., the
police officers who had apprehended the migrants, and the evidence given by Ms
S.S. and Mr M.T., who had been present at Bitola bus station when the applicant
had agreed to drive the migrants. The former gave evidence concerning the place
of arrest and the migrants’comments regarding the incident (see paragraph 14
above). Consequently, their evidence was circumstantial in nature and, at
best,could only provide indirect support for the applicant’s guilt.Ms S.S. and
Mr M.T. produced evidence corroborating some of the details of the applicant’s
testimony (see paragraphs 17 and 18 above), but the trial court disregarded it
as unreliable. In such circumstances, it is clear that the evidence given by
the migrants was obviously of great weight and without it the chances of the
applicant’s conviction would have been at least significantly reduced. In
supportof this conclusion are the impugned judgments,in which the domestic
courts relied heavily on this evidence in order to establish the applicant’s
guilt (see paragraphs 21 and 23 above).
The Court notes that despite their strong
similarities, there were certain inconsistencies in the migrants’ statements –
to which the applicant referred in his pleadings before the domestic courts
(see paragraphs 20 and 22 above). The applicant challenged the trustworthiness
of this evidence on several grounds, namely as regards the drop-off location,
the price of the journey, whether he had been aware that his passengershad been
Albanian migrants and whether he had disclosed his criminal record concerning
similar crimes (see paragraphs 21, 23 and 25 above). However,his submissions
were left unexamined.
That the applicant was in a position to
challenge or rebut the migrants’ statements by giving evidence himself or
examining other witnesses cannot be regarded a sufficient counterbalancing
factor to compensate for the handicap under which the defence laboured. The
applicant wasunable to test the truthfulness and reliability of the evidence
produced by themigrants by means of cross-examination despite the fact that it was
the only direct evidence against him(see Al-Khawaja and Tahery, cited
above, §162 and 165).Consequently, he was convicted on the basis of evidence in
respect of which his defence rights were appreciably restricted.
In such circumstances the Court considers that there
has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3
(d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicantcomplained that his right to
liberty had been violated as a result of his pre-trial detention for three days
in 2003 (see paragraph 26 above). He also complained, without providing any
further explanation, about the proceedings that he claimed had been instituted
against him in 2006 (see paragraph 27 above).
The Court has examined these allegations. However,
in the light of all the material in its possession, and in so far as the
matters raised by the applicant 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.
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 the equivalent of EUR
3,720 in respect of pecuniary damage for loss of income during his imprisonment
(see paragraph 21 above).He further claimed EUR 36,500 in respect of
non-pecuniary damage for emotional suffering caused by his imprisonment. On
thesamebasis, he also claimed EUR 5,000 for emotional distress suffered by his
family.
The Government contested these claims as
unsubstantiated and excessive. Furthermore, they stated that there was no
causal link between the violations alleged and the damage claimed.
The Court notes that the applicant’s claims
under this head were submitted in relation to his imprisonment and they did not
concern the violation found. In this connection, it considers that the basis
for an award of just satisfaction in the present case must be the denial of
opportunity for the applicant to confront the migrants under Article 6 §§ 1 and
3 (d) 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 damage claimed and its
finding of a violation of Article 6. Accordingly, the Court makes no award under
this head.
B. Costs and expenses
The applicant also claimedthe equivalent of EUR 570
for costs and expenses incurred before the domestic courts and EUR 190 for
those incurred before the Court. These figures concerned lawyer’s fees
according to the rate scale of the Macedonian Bar. The applicant submitted an
itemised list of costs. He also claimed EUR 80 for mailing, copying and
translation expenses. As to this latter claim, no payment slips or other
supporting documents were provided by the applicant.
The Government contested these claims as
unsubstantiated and excessive. They further stated that the costs claimed were
not necessarily 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 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 only EUR 340 related to lawyer’s fees which
were expended with a view to seeking prevention before the national courts of
the violation found by the Court (see, mutatis mutandis, Stoimenov v.
the former Yugoslav Republic
of Macedonia, no. 17995/02, § 56, 5 April 2007, and Trajče
Stojanovski v. the former Yugoslav Republic of Macedonia, no. 1431/03, § 46, 22 October 2009). Furthermore, the
applicant having substantiated the fullamountclaimedin respect of the legal fees expended in the proceedings
before it, the Court finds the sum of EUR 190 reasonable and awards it to him.
It therefore considers that the applicant is entitled to be reimbursed a total
of EUR 530, plus any tax that may be chargeable to him thereon. Lastly, it
rejects as unsubstantiated the applicant’s claim for reimbursement of mailing,
copying and translation expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
inability of the applicant to confront the migrants admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention;
3. 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,EUR 530
(five hundred and thirty euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be converted into the 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
