FIRST SECTION

DECISION

Application no . 7837/10 Gorančo GAVRILOV against the former Yugoslav Republic of Macedonia

The European Court of Human Rights ( First Section ), sitting on 1 July 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre, President , Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Paulo Pinto de Albuquerque, Linos-Alexandre Sicilianos, judges , and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 1 February 2010 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Goran č o Gavrilov , is a Macedonian national who was born in 1966 and lives in Å tip . He was represented before the Court by Mr F. Medarski , a lawyer practising in Skopje .

2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. The applicant is the owner and manager of a local radio station in Å tip . Between 1998 and 2008 he was also President of the National Association of Radio Broadcasting Companies. In that capacity, he reported to the relevant State authorities some irregularities in the operation of company R., a cable TV broadcasting company owned by Mr R.D. According to the applicant, on account of that criticism, Mr R.D. had threatened on several occasions to kill him. As established in the criminal proceedings described below, in a reported incident of 13 November 2002 Mr R.D. issued verbal threats against the applicant. Other alleged incidents, the latest dated 29 December 2007, were not reported to the police.

2. Criminal proceedings against Mr R.D., Mr D.M. and Mr G.S.

5. On 27 March 2008 the public prosecutor indicted Mr R.D., Mr D.M. and Mr G.S. for the attempted murder of the applicant. The charges concerned an incident occurring on 26 January 2008 in which Mr D.M., a member of the special military forces known as the Wolves, and Mr G.S., had allegedly assaulted the applicant with the intention of killing him. Both accused had allegedly worn black masks and used metal clubs to beat the applicant. The applicant sustained head and body injuries. Three of his fingers were broken. In the assault, Mr D.M. allegedly fired a shot, which did not hit the applicant. As stated in the indictment, Mr R.D., who had threatened on 29 December 2007 to kill the applicant, had incited Mr D.M. and Mr G.S. to carry out the attempted killing.

6. The proceedings were conducted before the Å tip Court of First Instance (“the trial court”). At the trial, the court heard oral evidence from the accused and several witnesses and confronted the applicant with Mr R.D. It also admitted a considerable volume of documentary evidence, including several expert reports; lists of temporarily seized objects; detailed lists of calls on mobile phones confiscated from the accused; reports on identity parades set up during the trial; excerpts from several daily newspapers, and other items of evidence. On 30 April 2008 the trial court delivered a judgment acquitting the accused. The applicant was instructed to pursue possible compensation claims against the accused by means of a separate civil action for damages. In the judgment, the trial court examined the available evidence. It did not give weight to an expert report according to which strands of textile found on one of the metal clubs used in the attack matched fibres from jeans like those confiscated from Mr G.S. It further disregarded an expert report which stated that a residue of saliva on a cigarette butt found at the scene of the incident immediately after the assault was consistent with blood group A, which was Mr D.M. ’ s blood group. It did so because a DNA analysis of the saliva had excluded the possibility that the cigarette butt belonged to Mr D.M. Because of some irregularities in the identity parade held by the police, the court also disregarded the fact that the applicant and two witnesses had identified Mr G.S. as one of the assailants. Lastly, it had not been confirmed that Mr R.D. had threatened the applicant. The confrontation between the two men had not supported the applicant ’ s allegations in that respect. According to the receipt slip, this judgment was served on the applicant on 8 May 2008.

7. On 29 September 2008 the Å tip Court of Appeal dismissed an appeal by the public prosecutor and upheld the trial court ’ s judgment. It found that the lower court had established the facts correctly and had provided sufficient reasons for its judgment. Further to the assessment of the evidence carried out by the trial court, the Court of Appeal examined evidence regarding the bullet found at the scene after the incident. Forensic ballistics tests confirmed that its calibre corresponded to ammunition used by an American-produced gun of a type that had been reported stolen from a military unit in Iraq in which Mr D.M. had served at one time. That finding, coupled with the fact that the gun from which the bullet had been fired had not been found, had been insufficient, in the court ’ s opinion, to attribute any guilt to Mr D.M. The Court of Appeal concluded that the lower court had given a clear and lawful judgment. The Government provided a copy of a receipt slip according to which the applicant was served with this judgment on 30 October 2008. In the comments submitted in reply to the Government ’ s observations, the applicant did not contest the date of service of this judgment.

8. On 9 January 2009 the public prosecutor challenged the lower courts ’ judgments by lodging, of his own motion, a request for the protection of legality ( барање за заштита на законитоста ) with the Supreme Court.

9. On 25 March 2009 the Supreme Court granted the request and stated that the lower courts had violated section 355 ( 1 ), paragraph 11 , and ( 2 ) read in conjunction with section 14 of the Criminal Proceedings Act of 1997 (“the 1997 Act”) (see paragraphs 12 and 13 below) in favour of the accused. Referring to section 408(2) of the 1997 Act, it stated that its judgment would not affect the final judgment. The Supreme Court found that, on the basis of the evidence in the case file, the reasons given in the trial court ’ s judgment had been unclear and contrary to the evidence adduced. The lower court had erred on the facts and had assessed the available evidence incorrectly, in particular evidence provided by the applicant and other witnesses who had identified the accused as the perpetrators of the crime. It stated that the trial court had established the facts solely on the basis of the evidence in favour of the defence. Evidence against the accused had been disregarded, with reasoning which lacked any substantiation. The Supreme Court further criticised the way in which the trial court had assessed the expert evidence. It also observed that the Court of Appeal had upheld the trial court ’ s judgment despite being vested with jurisdiction to ascertain of its own motion whether there had been any procedural flaws. The applicant was served with this judgment on 1 September 2009.

3. Proceedings before the Constitutional Court

10. On 30 October 2009 the applicant lodged a constitutional appeal with the Constitutional Court seeking protection of his right to freedom of expression, which had allegedly been violated owing to the failure of the State to identify and punish those responsible for the incident. Since the Supreme Court ’ s judgment had no bearing on the final judgment acquitting the accused, he alleged that he had also been denied the opportunity to claim compensation from the accused. The applicant reiterated that the incident of 26 January 2008 had been connected to his criticism of company R. and had been intended to silence him.

11. On 23 December 2009 the Constitutional Court rejected ( отфрла ) the applicant ’ s appeal. It found that the criminal courts had been required to establish whether any liability could be attributed to the accused. They had neither adduced any evidence nor established the facts in respect of whether the assault had been intended to restrict the applicant ’ s freedom of expression. The intention to commit the crime was of importance for identifying the perpetrators and determining the penalty. Furthermore, the protected interest damaged by the alleged crime was the right to life and not freedom of expression. The assault in question had happened at a time and place that could not be directly linked to the applicant ’ s freedom of expression. The Constitutional Court accordingly found that the judgments of the first and second-instance courts had not been of any relevance to the applicant ’ s freedom of expression. It further stated that the Supreme Court had no jurisdiction, in view of the proscription of reformatio in pejus set forth in section 408(2) of the 1997 Act, to remit the case for re-examination or decide it on the merits. The State could not therefore be held responsible for failing to punish the perpetrators. Lastly, it had been open to the applicant to claim monetary compensation in civil proceedings as he had been instructed to do by the criminal courts.

B. Relevant domestic law and practice

12. Under section 14 of the 1997 Act, the courts were responsible for establishing the relevant facts correctly and completely and assessing with equal diligence the evidence against and in favour of the accused.

13. Section 355 ( 1 ), paragraph 11 , and ( 2 ) of the 1997 Act provided that there was a substantial procedural flaw if a judgment contained no reasoning or the reasoning was incomprehensible or inconsistent, or if the court did not apply a statutory provision or applied it incorrectly.

14. Sections 403 and 404 provided that the public prosecutor could lodge a request for the protection of legality ( барање за заштита на законитоста ) against final court judgments. The Supreme Court determined such requests.

15. Under section 406(1) and (3), the Supreme Court was limited to examining the violations alleged in the request for the protection of legality. If such a request was lodged in favour of the convicted person, the Supreme Court could not amend the lower courts ’ judgments to his or her detriment regarding the legal classification of the crime and the penalty imposed.

16. Under section 408 ( 1 ), if the Supreme Court granted the request for the protection of legality it could issue the following judgments: it could overturn the final judgment; it could annul the first and second-instance courts ’ judgments or only the second-instance court ’ s judgment and remit the case for re-examination; or it could merely acknowledge the violation. Under sub-section 2 of that provision, if a request was lodged to the detriment of the accused and the court found the request well-founded, it would acknowledge that there had been a violation of the law. The judgment of the Supreme Court would not affect the final judgment.

17. In October 2004 the word “accused” in section 408(2) of the 1997 Act was replaced with the words “convicted person” (Official Gazette no. 74/2004).

18. The 2010 Criminal Proceedings Act, which came into operation on 1 December 2013, contains the same provision as section 408(2) of the 1997 Act, as amended in 2004 (section 461(2)).

19. The Government submitted copies of several judgments ( Кзз.бр.42/2011; Кзз.бр.53/2011; Кзз.бр.35/2012; Кзз.бр. 5/2013 and Кзз.бр.12/2013 ) in which the Supreme Court had granted requests for the protection of legality lodged by the public prosecutor and found that the law had been violated by the lower courts ’ judgments in which the accused had been acquitted. In all these judgments the Supreme Court, r elying on section 408 ( 2 ) of the 1997 Act, had held that its findings would not affect the final judgments of the lower courts. In these cases, the first-instance courts ’ judgments were given between March 2010 and May 2012.

COMPLAINTS

20. The applicant complained that the respondent State had not discharged its (positive) procedural obligation under Article 2 of the Convention in that it had failed to carry out an effective investigation into his allegations that he had been the victim of a life-threatening assault.

21. He also complained that the respondent State, by failing to identify and punish those responsible for assaulting him with the intention of silencing him , had not fulfil led its positive obligation to create the necessary conditions for the enjoyment of his rights under Article 10 of the Convention . Lastly, he complained under Article 13, taken in conjunction with Articles 2 and 10 of the Convention.

THE LAW

22. The applicant alleged that the investigation had been ineffective , that its ineffective nature had impaired his freedom of expression and that he had no effective remedies in respect of his rights. He relied on Articles 2, 10 and 13 of the Convention, which read as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Article 2 complaint (procedural aspect)

1. The parties ’ submissions

23. The Government submitted that the application should be rejected as having been submitted outside the six-month period, which, according to them, had started running on 30 October 2008 , the date on which the judgment of the Å tip Court of Appeal had been served on the applicant (see paragraph 7 above). This was so because the request for the protection of legality, which the public prosecutor had lodged proprio motu in the present case, could not be regarded as an effective remedy. In accordance with the applicable legislation, the Supreme Court had accepted that remedy and rendered a declaratory judgment, the aim of which had been to correct the domestic case-law. The applicant ought to have known that the request for the protection of legality would have no bearing on the final judgment acquitting the accused.

24. The applicant argued that the six-month period had started to run on 1 September 2009, the date of service of the Supreme Court ’ s judgment (see paragraph 9 above). This was so because it was only on the basis of that judgment that the applicant had been able to request that the Court find a violation of his Convention rights. In the absence of that judgment his complaints would have been regarded as allegations of procedural errors in the domestic proceedings and would have been unlikely to lead to a finding of a violation of his rights.

2. The Court ’ s assessment

25. The Court reiterates that a s a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136 , ECHR 2012 ) . Only remedies which are normal and effective can be taken into account as an applicant cannot extend the strict time-limit imposed by the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Fernie v. the United Kingdom (dec.), no. 14881/04 , 5 January 2006 ).

26. As it appears from the principles referred to above, the determination of the compliance or otherwise of an applicant with the six-month rule is intrinsically connected to the issue of exhaustion of domestic remedies (see Benzer and Others v. Turkey , no. 23502/06 , § 121, 12 November 2013) . In order to answer the Government ’ s admissibility objection the Court must assess whether, in the circumstances of the present case, the request for the protection of legality was an effective remedy in relation to the applicant ’ s complaint under Article 2 of the Convention. The answer to that question will be determinative for the calculation of the six-month time-limit.

28. However, the Court observes that it has accepted jurisdiction to examine the compliance with the Convention of proceedings concerning a request for the protection of legality when the outcome of those proceedings was directly decisive for the applicant ’ s “civil right s in question ”. In the Bajaldžiev case the Court found that the Supreme Court, which had dismissed the request for the protection of legality submitted in favour of the applicant, had not been impartial within the meaning of Article 6 of the Convention (see Bajaldžiev v. the former Yugoslav Republic of Macedonia , no. 4650/06, § 26, 25 October 2011 ). In Bočvarska , the Court found a violation of the “reasonable time” requirement in respect of proceedings in which such a request had been used successfully on four occasions (see Bočvarska v. the former Yugoslav Republic of Macedonia , no. 27865/02, § 72 , 17 September 2009 ).

29. In the present case the Court notes that, according to the applicable rules on criminal procedure valid at the relevant time, the Supreme Court had jurisdiction, on the basis of a well-founded request for the protection of legality , to overturn a final judgment or annul the lower courts ’ judgments and remit the case for re-examination (see section 408 ( 1 ) of the 1997 Act, paragraph 16 above). However, it observes that the 1997 Act contained special rules when the request was submitted in respect of convicted persons. Section 406 ( 3 ) of the 1997 Act contained a rule proscribing reformatio in pejus when the request for the protection of legality was lodged for the benefit of convicted persons (see paragraph 15 above). Similarly, section 408 ( 2 ) of the 1997 Act, which concerned cases in which the request for protection of legality was lodged to the detriment of convicted persons, contained a clear rule that the final judgment could not be altered by the Supreme Court ’ s judgment granting the request. In its judgment of 25 March 2009 the Supreme Court relied on this provision and stated that its judgment would have no bearing on the final judgment of the Å tip Court of Appeal of 29 September 2008 . As is clear from the case-law submitted by the respondent Government, the Supreme Court consistently applied this practice in cases where the request for the protection of legality had been submitted to the detriment of an accused rather than a convicted person, as in the applicant ’ s case (see paragraph 19 above). The applicant neither argued nor presented any argument before the Court to the effect that such interpretation of the domestic legislation by the Supreme Court entailed any responsibility on the part of the State under the Convention.

30. In such circumstances, the Court considers that the applicant knew or ought to have known after being notified of the Appeal Court ’ s judgment that a request for the protection of legality, if submitted by the public prosecutor and granted by the Supreme Court, could lead only to an acknowledgement that the lower courts had violated the law. It must have been clear to him that such acknowledgement could not entail the establishment of any facts or the attribution of any responsibility. The applicant apparently did not contest this (see paragraph 24 above). However, he argued that in the absence of such acknowledgement his allegations that the investigation in his case had been ineffective would not have been credible.

31. In this connection the Court reiterates that the procedural obligation under Article 2 requires the competent authorities to act with exemplary diligence throughout the period in which the y can reasonably be expected to take measures with the aim of elucidating the circumstances of a death and establishing responsibility for it ( see Przemyk v. Poland , no. 22426/11, § 47, 17 September 2013 ) . T he proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. T he Court ha s jurisdiction to review whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Öneryıldız v. Turkey [GC], no. 48939/99, § § 95 and 96 , ECHR 2004 ‑ XII ).

32. T he acknowledgment that the Supreme Court made in its judgment of 29 March 2009 was not indispensable for the Court to assess whether the investigation in the applicant ’ s case fell short of being “thorough” as required by Article 2 of the Convention . In this connection the Court observes that the Supreme Court ’ s judgment was not based on any new fact or evidence that had been brought to light after the Å tip Court of Appeal ’ s judgment of 29 September 2008 . On the contrary, its conclusions regarding the shortcomings at lower instances were based on the already existing written material in the case file (see paragraph 9 above). Furthermore, it is an established practice of the Court to examine whether the domestic investigation met the requirements of effectiveness in cases where the domestic courts acquitted the accused, as in the present case (see Filipovi v. Bulgaria , no. 24867/04 , § § 72 and 73 , 4 December 2012 ) and when the investigation was closed for lack of evidence (see, mutatis mutandis , Shchiborshch and Kuzmina v. Russia , no. 5269/08 , § § 256-260 , 16 January 2014) . The Court has also accepted such jurisdiction in respect of investigations which led to a final conviction by the domestic courts (see Enukidze and Girgvliani v. Georgia , no. 25091/07 , § § 259-267, 26 April 2011 ).

33. In such circumstances, the Court considers that the request for the protection of legality was not a remedy that had to be exhausted in respect of the applicant ’ s grievances under the procedural aspect of Article 2 of the Convention . Accordingly, t he time taken for the se proceedings before the Supreme Court should not be taken into consideration for the calculation of the six-month time-limit. This complaint was therefore lodged more than six months after the starting point of the six-month period, which began on 30 October 2008 , the date of service of the Court of Appeal ’ s judgment (see paragraph 7 above).

34. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Remaining complaints

35. The applicant complained that the alleged failure of the State to conduct an effective investigation had impaired his rights under Article 10 and that he had not had available to him an effective remedy, as required by Article 13, in respect of his rights under Articles 2 and 10.

36. 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, 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.

37. It follows that th e s e complaint s are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President