In the case of Dončev and Burgov v. the former Yugoslav
Republic of Macedonia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 20 May 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
30265/09) 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 two Macedonian nationals, Mr Dragan
Dončev (“the first applicant”) and Mr Stojan Burgov (“the second applicant”),
on 3 June 2009.
The first and second applicants were represented
by Mr Z. Avramov and Ms K. Kirova respectively, lawyers practising in Strumica.
The Macedonian Government (“the Government”) were represented by their Agent,
Mr K. Bogdanov.
The applicants alleged, in particular, that their
defence rights under Article 6 of the Convention had been violated on account
of evidence produced by a witness whose identity had not been disclosed and who
had been involved as an undercover agent in the operation that had led to their
conviction.
On 7 October 2011 this complaint was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1971 and 1970
respectively and live in Strumica. They were police officers.
On 3 March 2005 the public prosecutor ordered,
under sections 42(2)(2) and 142-b of the Criminal Proceedings Act (see
paragraphs 31 and 32 below), special investigative measures including secret
surveillance, audio-visual recording, a simulated offer of a bribe and the use
of undercover agents (the last two measures were to be applied by six police
officers whose identity remained undisclosed in the order). The order was valid
between 15 March and 13 May 2005. It was issued on the basis of a request from
the Department for Control and Professional Standards within
the Ministry of the Interior, which suspected that traffic police
officers had been accepting bribes from traffic offenders.
On 28 April 2005 the applicants stopped a car
near Strumica, since it was being driven at more than 30 km/h over the stipulated
speed limit. The driver was a certain K.N. from Skopje (“the driver”). The
applicants warned the driver and registered his name and the fact that they had
warned him in the official record. They did not draw up an official report (записник),
nor did they press charges against him.
On 8 June 2005 the Ministry of the Interior (“the Ministry”) lodged a criminal
complaint with the public prosecutor, alleging that the applicants had accepted
a bribe of 500 Macedonian denars (MKD) from the driver (who was in fact an
undercover agent, see paragraph 6 above) in exchange for not drawing up an
official report and pressing charges against him. The complaint stated that the
first applicant had fully admitted to the accusations and the second applicant
had partially done so.
On 12 July 2005 an investigating judge of the
Strumica Court of First Instance (“the trial court”) opened an investigation into
the allegation that the applicants had accepted a bribe. In the proceedings
before the investigating judge the applicants remained silent.
According to the indictment of 19 September
2005, the applicants accepted the bribe in exchange for not drawing up a report
and instituting misdemeanour proceedings against the driver. The public
prosecutor requested that the trial court take oral evidence from the accused
and admit the evidence obtained as a result of the order of 3 March 2005 (see
paragraph 6 above): four photographs; and an audio and video recording of the
discussion between the applicants and the driver of 28 April 2005 (see
paragraph 7 above).
On 28 November 2005 the trial court admitted the
evidence produced by the prosecutor. The applicants remained silent. On 30 November
2005 the court rendered a judgment in which it convicted the applicants and
sentenced them to a suspended prison term of six months. On the basis of the
audio recording of the incident, the court established that the driver had exceeded
the speed limit. He had offered - and the applicants had accepted - money in exchange
for not pressing charges against him. In this connection, the court noted that under
the law the driver was liable to a fine (between MKD 4,000 and MKD 12,000) or
thirty days’ imprisonment, as well as a compulsory security measure (driving
ban), for such an offence.
The applicants’ legal representatives, Ms M.G.
and Mr V.Š., appealed against the judgment, arguing that there was no evidence
to corroborate the applicants’ guilt. The audio evidence attested that the
driver had offered the applicants money, but it did not establish that they had
accepted it. Indeed, no bank notes marked in advance were found in their
possession. The applicants further argued that under the applicable regulation,
they had been authorised to warn the driver, a measure which they had
considered justified in the circumstances of the case. The first applicant
challenged the credibility of the audio recording, arguing that the transcript
of the audio material was incomplete. The second applicant further complained
that the trial court had neither examined the driver, nor confronted them with him.
On 28 June 2006 the Štip Court of Appeal
accepted the applicants’ appeals and ordered a re-examination of the case. In
so doing, it found that the lower court had incorrectly established the facts
and had not provided sufficient reasons for its judgment. In this connection,
it stated that neither the photographs nor the audio evidence had established that
the applicants had accepted the bribe from the driver, who had not been
examined. It therefore instructed the trial court to re-examine already
admitted evidence and to question the driver in order to establish whether he
had offered, and the applicants had accepted, MKD 500 in exchange for not pressing
charges against him. It further stated:
“... other evidence should be admitted if necessary (confrontation
between the accused and (the driver)).”
At a hearing, before the trial court, held on 15
May 2007, the applicants denied that they had accepted money from the driver.
They stated that they had been authorised, under the law, to warn him. They further
contested the audio recording, arguing that there were gaps and interruptions in
it. Mr V.Š., the applicants’ legal representative, asked the court to hear oral
evidence from the driver, as ordered by the Court of Appeal (see paragraph 13
above), and to obtain information from the Ministry as to whether the money had
been marked.
On 21 May 2007 the trial court asked the
Ministry to provide the name and address of the driver in order to examine and
confront him with the applicants, “as instructed by the higher court”. It also
sought information as to whether, under the order of 3 March 2005 (see paragraph
6 above), the money allegedly given to the applicants had been marked. In the
absence of a reply, on 20 June 2007 the court repeated its enquiry. On 28 June
2007 the Ministry informed the court that the money had not been marked. That
would have been the case had special investigative measures (audio and video
recording) not been ordered. It further stated that the undercover agent (лице со
прикриен
идентитет) who
had been used to simulate the offer of a bribe could be examined as a protected
witness under section 147(2) and (3) of the consolidated version of the Criminal
Proceedings Act (“the Act”), (which corresponded to section 142-c of the Act as
amended in 2004, see paragraph 33 below).
In a hearing held on 5 October 2007 the
applicants objected to the court’s examining the driver. In this connection,
they stated that there were three persons with the same initials (K.N.) as the
driver employed in the Ministry.
On 7 December 2007 the trial court examined the
driver. According to the depositions taken on that date, he was regarded as a
protected witness (заштитен
сведок) and his examination was
carried out under section 293 of the Act (which corresponds to section 270-a of
the Act of 1997 as amended in 2004 (see paragraph 36 below)). The relevant
parts of the court record of that date read as follows:
“The protected witness should be examined in a special room
only in the presence of the judge and the public prosecutor in order to protect
his identity. Since there is no such room in the court building, [the
applicants] and their representatives, (as well as) the entire public, were
ordered, on the basis of an advance agreement (претходен
договор), to go into the
waiting room.
The accused and the lawyers did not object.
...
The witness, whose pseudonym is K.N. (protected witness) from
Skopje, fifty-years of age ... having been warned about
the legal consequences of false testimony, states:
‘At 3 p.m. on 28 April 2005, in
accordance with the [public prosecutor’s] order, I drove to Strumica together
with two other persons ... I deliberately exceeded the speed limit assuming
that there would be a road patrol ... I was stopped ... (then he described the
events concerning another car which the applicants had stopped at that time,
when (one of the applicants) had allegedly received MKD 500 from the driver of
that car) ... the policeman who took the money from the other driver approached
me and I said that it was unfair that they should punish me unlike the other
(driver), who had paid ... Then the other policeman, who still had (in his
hands) my (driving) documents, told me ‘Ok, we won’t punish you either’ and gave
the documents back to me. I asked them whether I should also reward them for
having not punished me, as the (other) driver had done, to which (one of the
applicants) replied ‘It will be fine if you give something’. I asked ‘how much
should I give?’, and he replied ‘There is no pricelist for that, it’s up to you’.
Then, I said ‘I’ll give you as much as (the other driver), MKD 500’. I took out
from my pocket MKD 500 and gave them to (one of the applicants) ... I asked
them whether they would press charges against me or issue any penalty, to which
(one of the applicants) replied ‘Keep your mouth shut and drive on’ ...
. The
public prosecutor further asked the driver whether the money had been marked,
to which he replied negatively.
The record further stated:
“Since there are no further questions, the court decides to
remove the protected witness from the court room and to call the accused and
their lawyers. A transcript of the statement of the protected witness should be
given to them so that they may put questions to him through the court, to which
the protected witness should reply.
The accused and their lawyers were called to enter the court
room and at that moment, they said, in a loud voice ‘We request exclusion of
the adjudicating judge, the panel, the trial court and the Štip Court of
Appeal, since (the judge) is conducting the proceedings unlawfully and is not
following the instructions of the Appeal Court. It is so since we were removed
from the court room for 45 minutes, instead of being confronted with the
witness. We suspect that no one gave a statement, all the more so since the
accused have already met the protected witness”.
The court ordered an adjournment. On 7 and 13
December 2007 the presidents of the trial court and the Štip Court of Appeal respectively
rejected the applicants’ requests for exclusion.
A hearing held on 1 April 2008 was attended by
the applicants and Ms M.G., their lawyer. The driver was absent. The court
stated that there was no evidence that he had been properly summoned for the
hearing. The applicants were served with a copy of the court record of 7
December 2007 and the driver’s statement. The court minutes stated:
“... (the applicants) were told that they could put questions
in writing, which the court would then forward to the protected witness in
order for him to reply.”
On 9 May 2008 the trial court held a hearing. It
was attended by the applicants and Mr V.Š., their lawyer. The driver was not
present, despite the fact that he had been properly summoned. Mr V.Š. stated:
“I decline to examine the protected witness, K.N. and I object to the court record of 7 December 2007 since it is contradictory
and untrue (Се
откажувам од
распит на
заштитениот
сведок К.Н. и
приговарам
на
записниикот
од 07.12.2007 бидејќи
е
контрадикторен
и невистинит).”
On 15 May 2008 the trial court held another
hearing, at which the applicants confirmed that they had received the bill of
indictment and understood the charges against them. Both applicants maintained
that they would be represented by Mr V.Š. They further stated:
“I maintain the statement given at the hearing of 15 May 2007 [see
paragraph 14 above] and I have nothing to add”.
The court then read aloud the driver’s statement
of 7 December 2007 and admitted as evidence the public prosecutor’s order, four
photographs, as well as the audio and video recording of the critical event. The
applicants made no reference as to the examination of the driver.
In the concluding remarks, Mr V.Š. denied that
there was any material evidence that the applicants had committed the crime
imputed to them; in particular, the video and audio material did not establish that
they had received any money from the driver, nor had any marked bank notes been
found in their possession. He further stated that:
“... we object to the use of the term ‘protected witness’ since
it is not disputed that the (applicants) and (the driver) knew each other ...
they saw each other and it is unreasonable to use that person as a protected
witness.”
Both applicants stated:
“I fully adhere to the concluding remarks of my representative.
I want to add that I’m not guilty because I have not received any money”.
On 16 May 2008 the trial court rendered a
judgment in which it found the applicants guilty and sentenced them to six
months’ imprisonment, suspended for two years. It established that they had
accepted the bribe from the driver, a police officer who had been following the
public prosecutor’s order to use special investigative techniques. They
received MKD 500 in exchange for not pressing charges, despite the fact that
the relevant law provided for a fine or thirty days’ imprisonment, coupled with
a security measure, for such an offence. The audio evidence established that
the driver had exceeded the speed limit and had offered - and the applicants
had accepted - the money. In this connection, the court stated:
“Following the instructions of the higher court, the (trial)
court examined the driver with the pseudonym K.N. as a protected witness. He
confirmed that he had been stopped on the day in question, since he had
deliberately exceeded the speed limit ... [the applicants] had agreed to accept
a bribe in the amount of MKD 500 in exchange for not drawing up a report and pressing
charges.
In this context, the statement of the protected witness and the
audio material are totally consistent ... In the note [of 28 June 2006], [the
Ministry of the Interior] submitted that the identity of the witness K.N. was protected,
i.e. that he was a protected witness. [For this reason] the court did not
confront him with [the applicants].”
The applicants appealed against the judgment and
maintained that there had been insufficient evidence that they had accepted the
money. They argued that there had been no written warrant authorising the
operation that had led to the proceedings against them; that the bank notes had
not been marked; that they had not taken possession of any such bank notes;
that the audio material had not established that they had accepted the bribe; and
that the warning issued against the driver had been registered in the official
records and had been prescribed for such offences. They further complained that
their conviction had been based, to a decisive extent, on the driver’s
statement and the audio material, the credibility of which they had challenged.
As to the driver, they complained that it had been unreasonable to use him as a
protected witness since they had already met him. They further complained that:
“The statement (of the driver) was taken in the absence of the
accused and the defence ... the accused and the defence were not allowed to put
questions to that person; there was no confrontation between that person and
the accused”.
In a public hearing held on 18 November 2008 in
the presence of the applicants and their lawyers, the Štip Court of Appeal
dismissed the appeal lodged by the applicants, finding no grounds to depart
from the established facts and reasons given by the trial court. It found that the
special investigating measures (audio-visual recording and the use of a
protected witness) had been ordered by the public prosecutor in accordance with
the Criminal Proceedings Act (see paragraphs 31 and 33 below). Accordingly, the
judgment could be based on that evidence and the driver’s statement, as lawfully
obtained evidence. The court further stated that:
“Having regard to the Court of Appeal’s judgment Кж.бр.474/06 of
28 June 2006, at the re-trial, the trial court summoned, and at a hearing (главен
претрес) it examined the
witness K.N., who was driving the car at the relevant time ... This witness was
considered a protected witness by the court. On the basis of an agreement reached
with the accused and their representatives, [the witness] was examined in their
absence. However, after his examination, the court provided the accused and
their representatives with the opportunity to put questions through the court.
... For the offence committed (by the driver), the accused
neither drew up a report nor did they press charges against him, despite the
fact that the offence was of a more serious nature ... they warned him orally,
although a fine and a compulsory security measure - a driving ban - are
prescribed for this offence.
The witness K.N. provides an objective and detailed description
of the events ... Indeed, the MKD 500 bank note which the accused received from
this witness had not been marked and secured as evidence, but the court
undoubtedly established, on the basis of the statement of this witness, that he
had offered - and (the applicants) had accepted - the money as a bribe. The
statement of this witness is corroborated by the written transcript of the
audio material ... so, the established facts are not put into question ...”
This judgment was served on the applicants on 15
and 19 December 2008 respectively.
II. RELEVANT DOMESTIC LAW
A. The position at the material
time
Criminal Proceedings Act as amended on 22 October 2004 (“the
Act”)
. Under
section 42(2)(2) of the Act, as regards criminal offences subject to automatic
prosecution by the State, the public prosecutor may order the use of a special
investigative technique in pre-trial proceedings under the conditions and in
the manner specified by law.
. Section
142-b of the Act provides that special investigative techniques may be ordered
where there are reasonable grounds for suspecting that certain criminal
offences have been committed by an organised group. Secret surveillance,
audio-visual recordings, a simulated offer of a bribe and the use of undercover
agents (лица
со прикриен
идентитет) are among the special investigative techniques permitted (section
142-b(1) (3), (4) and (6)).
. Section
142-c provides that information, documents and objects obtained by means of
special investigative measures may be used as evidence in criminal proceedings.
The undercover agents can be examined as protected witnesses. Their identity is
classified (службена
тајна).
. Under
section 142-d(3), the use of special investigative techniques at the pre-trial
stage may be ordered by an investigating judge in a reasoned written decision
following a reasoned written request by the public prosecutor, or by the public
prosecutor in a reasoned written decision following a reasoned written request
by the Ministry, but only in respect of a person whose identity is unknown.
. Under
section 142-e(4) of the Act, evidence obtained through special investigative
techniques cannot be used at trial if the techniques were applied without an
order by the investigating judge or the public prosecutor or contrary to the
Act.
. Under
section 270-a of the Act, the public prosecutor, investigating judge or trial
judge must take measures to ensure the effective protection of witnesses if
there is a risk that they may be threatened or that their life, health or
physical integrity may be endangered. Their protection must be guaranteed by
means of special arrangements for the examination of the witnesses and their
participation in the proceedings. Protected witnesses are examined in the
presence of the public prosecutor, the investigating judge or the trial judge,
in a location which guarantees the protection of their identity, unless they
agree to be examined using special streaming media, for which a court order is
needed. An unsigned copy of the witness’s statement is forwarded to the accused
and his or her representative, who can put questions in writing through the
court.
. In
accordance with section 339(1), the court decided on the basis of facts and evidence admitted
at the trial.
. Under
section 380(3) of the Act, the trial court was bound to take all procedural
actions and to discuss all disputed issues indicated in the judgment of the
second-instance court.
B. Subsequent developments
Criminal Proceedings
Act, as amended in 2008 (Official Gazette no. 83/2008)
. Under
section 270-b of the Act, special arrangements for the examination of a
protected witness may involve concealment of his or her identity and face. If the
arrangements concern the witness’s personal information, he or she may produce
evidence under a pseudonym (псевдоним). Otherwise, the general rules for the examination of
witnesses apply. A witness who is examined under a pseudonym may also have his
or her face concealed (прикривање
на изгледот) with the use of special streaming media, which distort one’s
voice and face. The protected witness must be placed in a special room that is
physically separated from the courtroom in which the investigating or trial
judge, as well as other persons attending the examination, are present.
. Under
section 339(3) of the Act, the judgment cannot be based solely on evidence
given by a protected witness and obtained by means of witness protection.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
Relying on Article 6 of the Convention, the applicants
alleged that the principle of equality of arms and of their defence rights
regarding the examination of the driver had been breached. In this connection
they complained that, unlike the public prosecutor, they had neither been
present when the trial court had examined that witness nor had they been given
the right to cross-examine him. They further complained that the driver had incited
them to commit the offence by acting as an agent provocateur. Lastly,
they complained that their conviction had been based on inadmissible evidence obtained
by using special investigative techniques. The Court
considers that these complaints should be analysed under Article 6 §§ 1
and 3 (d) of the Convention, the latter concerning particular aspects of the
right to a fair trial guaranteed by Article 6 § 1, 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 an independent and impartial tribunal established by law.”
...
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. Alleged violation of the
applicant’s rights regarding the examination of the undercover witness
1. Admissibility
. The
Government did not raise any objection as to the admissibility of this
complaint.
. The
Court notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
(a) The parties’ submissions
The applicants submitted that the driver had not
been examined in a specially equipped room as required under the applicable
rules. Consequently, the evidence produced by him was obtained unlawfully and
could not serve as a basis for their conviction. They conceded that they had
been given the opportunity, at the hearing of 1 April 2008, to put questions in
writing to the protected witness. However, as noted in the court record of that
date (see paragraph 21 above), the witness did not attend that hearing, so had
the court forwarded the questions to the witness, the trial judge would have
been unable to observe the witness’s demeanour. That would have contravened section
339 of the Act (see paragraph 37 above). Furthermore, the court failed to
examine the driver’s two passengers who had been in the car on the day in
question. Lastly, the trial court did not confront the applicants with the
driver, notwithstanding the explicit instruction in the Court of Appeal’s
judgment of 28 June 2006 in that respect (see paragraph 13 above), which had been
binding for the trial court (see paragraph 38 above).
The Government submitted
that it was not disputed that the driver, who had been examined at the trial as
an undercover witness, was an agent employed in the Department for Control and Professional Standards within the
Ministry of the Interior. He had been authorised
by the public prosecutor to gather information that could not have been
otherwise obtained. The
concealment of his identity was justified in view of the respondent State’s
struggle against organised crime. He was examined in a separate room only in
the presence of the trial judge and the public prosecutor. At the time, there was
no other means of preserving his anonymity; live streaming media capable of
distorting the face and voice did not become available until later. However,
the trial judge knew the identity of that witness; he observed his behaviour
during the examination and drew conclusions about his reliability. The
applicants also knew that he was an undercover police agent and, although his
identity remained undisclosed, they recognised him by his physical appearance
as a result of having met him at the material time.
. In
any event, the applicants did not contest the need to protect the identity of the
witness. As evident from the court record of 7 December 2007 (see
paragraph 17 above), they did not object to being removed from the courtroom pending
the examination of the driver, which implied that they knew that he would be
examined under the rules applicable to protected witnesses. In addition, the
fact that they refused to put questions to him was sufficient for the Court of
Appeal to conclude that the applicants agreed to the way in which the
undercover witness had been heard.
. The
Government further submitted that examining the witness under the general rules
for examination of witnesses would not have added anything to the process of
establishing the facts. Furthermore, the applicants were not prevented from presenting
their version of the events and stating their arguments concerning the witness’s
testimony. Their conviction was based neither solely nor to a decisive extent
on the evidence produced by that witness. That was confirmed by the domestic
courts, which ruled on the basis of the principle of free assessment of
evidence (правило
на слободна
оценка на
доказите). They analysed the evidence produced by the undercover
witness carefully and assessed its credibility in relation to other available
evidence, in particular the audio material. Furthermore, the witness was warned
about the legal consequences of false testimony.
(b) The Court’s consideration
The Court reiterates that 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. The Court’s task under the Convention is not to give a ruling as
to whether statements of witnesses were properly admitted as evidence, but
rather to ascertain whether the proceedings as a whole, including the way in
which evidence was taken, were fair. In addition, all the evidence must
normally be produced at a public hearing, in the presence of the accused, with
a view to adversarial argument. There are exceptions to this principle, but
they must not infringe the rights of the defence; as a general rule, Article 6
§§ 1 and 3 (d) require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him, either when he
makes his statements or at a later stage (see Van
Mechelen and Others v. the Netherlands,
23 April 1997, §§ 50 and 51, Reports
of Judgments and Decisions 1997-III).
. The
Court further observes that, in order to ensure that the accused receives a
fair trial, any difficulties caused to the defence by a limitation on its
rights must be sufficiently counterbalanced by the procedures followed by the
judicial authorities (see Doorson v. the
Netherlands, 26 March 1996, § 72, Reports 1996-II; and Van Mechelen and Others, cited
above, § 54).
The Court notes that the present case concerns
the examination of the driver under the special rules regarding protected
witnesses and the subsequent use of that evidence against the applicants. Thus,
it raises similar issues to those discussed in the Papadakis case (see Papadakis
v. the former Yugoslav Republic of Macedonia, no. 50254/07, 26 February 2013).
. The driver was examined under
section 270-a of the Act (see paragraph 36 above), which, alike the Papadakis
case (see, ibid., § 89), involved two restrictive arrangements: (a) full
protection of the driver’s identity; and (b) impossibility of the defence to
attend his examination. The Court notes, for the reasons outlined in the
Papadakis case, that despite the protection of the
driver’s identity he was not to be regarded as
anonymous within the meaning of its case-law (see Papadakis, cited
above, § 90). The parties agreed that the applicants knew the driver, at least
by his physical appearance (see paragraphs 25, 28 and 45 above).
. As
to the first arrangement, the Court observes that the trial court, based
on the information obtained from the Ministry (see paragraphs 15 and 27 above), decided to keep secret the driver’s identity. The Štip
Court of Appeal, in its judgment upholding the applicants’ conviction, did not
contradict the trial court’s findings regarding the necessity to protect the
driver’s identity. Given the fact that the driver was an undercover police agent
used to track corruption-related offences within the Ministry (see paragraph 45
above), the Court does not consider unreasonable that the driver’s name and
function were withheld from the defence. The police authorities had a legitimate
interest to protect the identity of their agent so that they could make use of
him again in the future (see Lüdi v. Switzerland, 15 June 1992, § 49,
Series A no. 238; and Van Mechelen and Others, cited above, § 57).
. As
to the second arrangement (see paragraph 51 above), the Court notes that according
to the court record of 7 December 2007, before the trial court took the driver’s
depositions, the applicants and their lawyers did not object to the driver being
examined in their absence (see paragraph 17 above). There is no indication that
they were unaware, at that moment, that their removal from the courtroom
implied that the driver would be examined under the special rules for
examination of protected witnesses. The Court of Appeal also found that the
applicants had agreed to the examination of the driver under the special rules
for protected witnesses (see paragraph 29 above).
. Notwithstanding
the above, the Court found in the Papadakis case that the examination,
under section 270-a of the Act, of an undercover witness whose evidence was
decisive for the applicant’s conviction could not, as such, be
considered a proper substitute for the opportunity for the defence to question
the witness in their presence and make their own judgment as to his demeanour
and reliability (see Papadakis, cited above, §§ 91, 92 and 97).
. The
Court does not see any reason to depart from that finding in the present case.
The driver was examined only in the presence of the trial judge and the
prosecutor (see paragraphs 17 and 45 above). That he produced decisive evidence
for the applicants’ conviction is supported by the Appeal Court’s judgment of
28 June 2006, which confirmed that the remaining available evidence had not
been sufficient to prove their guilt (see paragraph 13 above). It was the
driver’s statement that supported the audio evidence and without which the
latter was devoid of any probative value. That was confirmed in the final
judgment of the Štip Court of Appeal of 18 November 2008 (see paragraph 29
above).
The Court must therefore ascertain
whether there were procedural safeguards to counterbalance the
constraints with which the applicants were confronted in the exercise of their
defence rights in relation to the driver’s examination (see
Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05
and 22228/06, § 147, ECHR 2011; and Ellis and Simms v. the United Kingdom
(dec.), no. 46099/06, § 78, 10 April 2012).
. In
this connection the Court notes that after the trial court had conferred on the
driver the status of a protected witness and
examined him, with the applicants’ consent (see paragraph 53 above), under
the special rules regarding such witnesses, it communicated
a written transcript of his statement to the applicants and instructed them
that they could put questions in writing through the court (see
paragraph 21 above). That was in compliance with section 270-a of the Act, as
valid at the time (see paragraph 36 above). The
applicants conceded that they had been given such an opportunity (see paragraph
44 above). However, at the hearing on 9 May 2008, the applicants’ lawyer stated
that he “decline(d) to examine the protected witness K.N.” (see paragraph 22 above).
In the Court’s view, this statement contained an explicit and
unqualified declaration by which the applicant’s lawyer refused to examine K.N.
Accordingly, they deprived
themselves of the opportunity to verify the efficiency of the procedural
safeguard provided for in section 270-a of the Act. The Court considers that
the applicants were required to test the system of questioning the driver in
writing, which was available to them and which might have permitted a fair and
proper assessment of the reliability of the evidence produced by the driver. Given
that the driver was not regarded as an anonymous witness, it cannot be assumed
that the nature and scope of the questions they could have put would have been devoid
of purpose (see, by converse implication, Kostovski v. the
Netherlands, 20 November 1989, § 42, Series A no. 166).
. In
the Court’s view, this issue of fact distinguishes the present case from the Papadakis
case in which the Court found that the insufficient time given to the applicant
to question the undercover witness in writing had placed him in a
position where he had been effectively deprived of a real chance of challenging
the reliability of the decisive evidence against him (see Papadakis,
cited above, § 94).
. By
refusing to question the driver in writing, the applicants also denied themselves
the possibility of remedying the statutory inequality, an issue which they did
not raise before the domestic courts, that the Act (section 270-a) had created
by having provided that only the public prosecutor had the right to attend the
examination of the driver.
. The
Court therefore finds that there was no violation of Article 6 §§ 1 and 3
(d) of the Convention.
B. Other alleged violations of
Article 6 of the Convention
. The applicants complained that the
driver had instigated the offence for which they had been convicted by acting as
an agent provocateur. They further alleged that their conviction
had been based on inadmissible evidence obtained by means of special
investigative measures.
The Court has examined these complaints.
However, in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, it 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.
FOR THESE REASONS, THE COURT,
1. Declares, unanimously, the complaint concerning
the applicants’ defence rights regarding the examination
of the undercover witness admissible and the remainder of the application
inadmissible;
2. Holds, by six votes to one, that there has been no violation of Article 6 §§ 1
and 3 (d) of the Convention.
Done in English, and notified in writing on 12 June 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sicilianos is
annexed to this judgment.
I.B.L.
S.N.
DISSENTING OPINION OF JUDGE SICILIANOS
I regret not
to be in a position to vote with the majority in finding that there was no
violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case.
The crucial issue is whether the applicants had really consented to the
examination of the driver in their absence and in the absence of their lawyers
under the special rules for protected witnesses. In other words, the main point
of the case is whether the applicants validly waived their right under Article
6 § 3 (d) of the Convention to challenge and question the key witness against
them, as has been accepted by the majority.
In Pishchalnikov
v. Russia (no. 7025/04, 24 September 2009), the Court summarised as follows
its case-law as regards the waiving of entitlement to the guarantees of a fair
trial, including the right of the accused to examine or have examined witnesses
against him:
“77. In this respect the Court reiterates that
neither the letter nor the spirit of Article 6 of the Convention prevents
a person from waiving of his own free will, either expressly or tacitly, the
entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for
Convention purposes, a waiver of the right must be established in an unequivocal
manner and be attended by minimum safeguards commensurate to its importance
(see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu
v. Turkey, no. 35811/97, § 53, 2 August 2005, and Colozza v. Italy,
12 February 1985, § 28, Series A no. 89). A waiver of the right, once invoked,
must not only be voluntary, but must also constitute a knowing and intelligent
relinquishment of a right. Before an accused can be said to have implicitly,
through his conduct, waived an important right under Article 6, it must be
shown that he could reasonably have foreseen what the consequences of his
conduct would be (see Talat Tunç v. Turkey, no. 32432/96, 27 March
2007, § 59, and Jones v. the United Kingdom (dec.),
no. 30900/02, 9 September 2003)”.
Turning to the present case, it transpires from the statement of
facts that the applicants and their lawyer, Mr V.Š., consistently objected to
the examination of the driver under the special rules for protected witnesses.
According to our understanding of the facts, the strategy of the defence was to
contest the application of those rules altogether and was aimed at excluding
the driver’s testimony.
This approach is apparent from a series of elements. In a hearing
held before the trial court on 5 October 2007 the applicants objected to the
court’s examining the driver (see paragraph 16 of the judgment). Despite this
objection, the trial court examined the driver on 7 December 2007 only in the
presence of the judge and the public prosecutor, in order to protect his identity.
The court record of that date mentioned that “[t]he accused and the[ir] lawyers
did not object” (see paragraph 17). Referring to this affirmation, Mr V.Š.
objected to the court record of 7 December 2007 “since it [was] contradictory
and untrue” (see paragraph 22), and at the same time “declined” to examine the
driver under the special rules on protected witnesses. Mr V.Š. maintained the
same attitude in his concluding remarks before the trial court, when he denied
that there was any material evidence against the applicants - thereby ignoring
the testimony of the “protected witness”. He further stated as follows:
“... we object to the use of the term ‘protected
witness’ since it is not disputed that the (applicants) and (the driver) knew
each other ... they saw each other and it is unreasonable to use that person as
a protected witness” (paragraph 25).
The same objection was reiterated by the applicants in their appeal.
They complained that it had been unreasonable to use the driver as a protected
witness since they had already met him. They further complained:
“The statement (of the driver) was taken in the
absence of the accused and the defence... the accused and the defence were not
allowed to put questions to that person; there was no confrontation between
that person and the accused” (paragraph 28).
We do not see how these statements could be interpreted as “a
knowing and intelligent relinquishment of a right”. In our view the above
statements and objections of the applicants and their lawyer, before both the
trial court and the Court of Appeal, denote a clear and consistent attitude
opposing the examination of the key witness privately, in the absence of the
accused and the defence, under a set of special rules on “protected witnesses”.
The Štip Court of Appeal dismissed simpliciter the objections of the
applicants and their lawyer. From the statement of facts (see paragraph 29) it
does not appear that the procedure before the Court of Appeal offered
sufficient “counterbalancing factors”, in the sense given to that term by the
Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom ([GC],
nos. 26766/05 and 22228/06, § 147, ECHR 2011).
