FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23065/07 by Genci FEJZUL L A and Jonuz MAZREKU against the former Yugoslav Republic of Macedonia

The European Court of Human Rights ( First Section), sitting on 31 May 2011 as a Chamber composed of:

Nina Vajić , President, Anatoly Kovler , Peer Lorenzen , George Nicolaou , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , judges,

and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 18 April 2007,

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

Having regard to a letter submitted by th e Italian Government on 12 July 2010 indicating that they did not wish to exercise their right to intervene in the proceedings in respect of the first applicant (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court),

Having regard to the fact that the Albanian Government, having been duly informed, did not exercise their right to intervene in the proceedings in respect of the applicants,

Having regard to the fact that, on 1 February 2011, the Court changed the composition of its Sections (Rule 25 § 1) and this case was assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

The applicants , Mr Genci Fejzul l a (“the first applicant”) and Mr Jonuz Mazreku (“the second applicant”), are Albanian nationals who were born in 1970 and 1953, respectively and they live in Fier , Albania . The first applicant, who is the second applicant ’ s nephew, also has Italian citizenship. They are represented before the Court by Mr M. Vujik and Mr E. Milanov , lawyers practising in Skopje . The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska .

A. The circumstances of the case

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

On 13 January 2005 the public prosecutor filed an indictment with the Skopje Court of First Instance (“the trial court”) charging the applicants and Mr R.A., Mr I.N. and Mr P.G. with drug trafficking. According to the indictment, on 12 December 2004 the first applicant and Mr R.A. had bought 18.95 kg of heroin from a certain Mr Dz.N . in Istanbul , Turkey . After the drugs had entered the respondent State, they had been handed over to Mr R.A. so that he could take them to Albania . On 19 December 2004 the applicants, together with Mr R.A., had arrived at a car park near the Skopje Fortress. Mr I.N. and Mr P.G. had also arrived and had loaded the drugs into Mr P.G. ’ s truck. Seventeen cakes of heroin had been stored in the spare tyre and twenty-one cakes had been put in a special compartment in the front of the truck. The charges were based, inter alia , on an expert opinion of 20 December 2004, three search reports, seven certificates for temporarily seized objects, and a list of passengers (“the list”) indicating the names of the first applicant and Mr R.A. as having travelled in a bus from Istanbul to Skopje on 13 and 14 December 2004. The list had been sent by border police on 20 December 2004 to the Ministry of the Interior (“the Ministry”), as was the case with a special report, no.10.2.3-5305 of 20 December 2004, produced by the Ministry. According to the latter, on 19 December 2004 the Ministry had requested (request no.20.4-21558), and the public prosecutor had ordered, an audio-visual recording of the car park. The recording had been made on that date between 11 a.m. and 3.55 p.m. Two digital video cameras and one digital photo camera had been used.

In the proceedings before the Court, the Government submitted a copy of the Ministry ’ s request no.20.4-21558 of 19 December 2004, according to which the Ministry had requested that the public prosecutor authorise the audio-visual surveillance because it believed that a significant quantity of heroin was to be trafficked and prepared for transportation outside the respondent State. For that purpose, unidentified persons had been expected to arrive at the car park in a vehicle with Albanian car plates and meet with other unidentified persons. They also submitted another report by the Ministry dated 20 December 2004 (report no.10.9-01/350), according to which the total duration of the video of the car park recorded with both cameras was sixty-two minutes and thirty-three seconds. This report was admitted in evidence in the domestic proceedings. They also submitted a copy of the search report of the truck dated 19 December 2004. That search had been ordered by an investigating ju dge and had been attended by Mr P.G. and two witnesses.

At a hearing on 4 March 2005, the first applicant stated that he had not met Mr R.A. in Istanbul , as alleged by the prosecution, but rather on the bus while travelling to the respondent State. He had never met him before then. On that occasion, they had discussed the possibility of trading coffee machines. For that reason, he had gone to Skopje with the second applicant, who was a taxi driver. He had not told the second applicant the reason for, or the duration, of his stay in Skopje .

The second applicant stated that he had gone to Skopje at the request of the first applicant so that the first applicant could discuss business matters with a third person. The first applicant had told him that their stay would be short, a day or two. He denied that he had known Mr I.N. and Mr P.G.

Mr P.G. stated that he had not known, and had never seen, the applicants before.

On 18 March 2005 the trial court found the defendants guilty and sentenced them to a prison term. The second applicant received the shortest sentence (five years ’ imprisonment). All the other defendants, including the first applicant, were sentenced to eight years ’ imprisonment. An expulsion order of indefinite duration ( казна протерување засекогаш ) was also issued against the applicants. Mr R.A. and Mr I.N. were convicted in absentia because they had escaped from the car park and had not been found since. The applicants had had no prior criminal records in the respondent State.

The trial court found that the defendants had acted in concert , as described in the indictment. It established that on 13 December 2004 the first applicant and Mr R.A., having bought the heroin from Dz.N ., had arrived in the respondent State on a bus from Istanbul . The list supported that finding. The first applicant had continued on to Albania . On 17 December 2004 the applicants had arrived in Skopje . During their stay, they had met up with Mr R.A. and Mr I.N. several times. Mr P.G. had arrived in Skopje with his truck. On 19 December 2004 he had met up with Mr I.N. at a previously determined place. As already agreed upon, all the defendants met at the car park near the Skopje Fortress, where Mr I.N. and Mr P.G. had loaded the drugs into the latter ’ s truck, as described above. After Mr P.G. had left the scene, the remaining defendants had embraced each other and had left, satisfied with the job done. The applicants ’ car had been stopped by police upon leaving the city. These facts were established, inter alia , on the basis of a VHS tape of the video recording of the car park on 19 December 2004. In the proceedings before the Court, the applicants submitted a copy of the VHS tape used in court. The total length of the video material recorded on the car park was sixty-three minutes and twenty seconds.

The trial court rejected the applicants ’ denial that they had been involved in the crime. It further rejected their arguments that a purely visual recording without sound could not be relied upon to establish the facts: the court explained that it had been impracticable to obtain an audio recording.

The applicants appealed against this decision, arguing that, inter alia , there had been no evidence supporting the trial court ’ s opinion that the first applicant had bought the heroin in Turkey and that the defendants had acted in concert. They stated that the visual recording, as the only evidence on which their conviction rested, had been incomplete and inaccurate. They further reiterated that there had been no audio recording, as required under section 142-b § 1 (3) of the Criminal Proceedings Act, which consequently made the recording inadmissible.

At a public session held on 4 July 2005, the Skopje Court of Appeal allowed the applicants ’ appeal and quashed the trial court ’ s decision, which it found to have been inconsistent and unreasoned. It also held that the video material had not been properly admitted in evidence.

At the new trial, the applicants reiterated their objections concerning the credibility and probative value of the video material recorded on the VHS tape. In this connection, they argued that there had been time gaps and interruptions in the video and requested that the trial court admits the original video material in evidence. The court refused this request and said that there was no doubt that the video material recorded on the VHS tape was identical to the original video material recorded by the digital cameras. The applicants further argued that the recording had been unlawful because it had been authorised by the public prosecutor, instead of by an investigating judge, on the basis that the Ministry had known the identity of the possible perpetrators (see section 142-d § 3 of the Criminal Proceedings Act). In this connection the court allowed the applicants ’ request and admitted the public prosecutor ’ s order for the audio-visual recording of the car park (order KON.br.5530/04). According to the order, the recording would last twenty-four hours and be stopped should the identities of the suspects be discovered. The court, however, refused to admit the Ministry ’ s request no.20.4-21558 of 19 December 2004 and said that it was irrelevant to the validity of the order.

On 17 October 2005 the trial court convicted the applicants of the same offence and imposed the same sentences and expulsion orders as before. Relying on the public prosecutor ’ s order, the court rejected the applicants ’ arguments that the video material had been unlawfully obtained. Noting the lack of synchronisation between the video cameras used for the recording, the court stated that the time gaps and interruptions in the video material had not affected the credibility of the video evidence. It further referred to a discrepancy in the applicants ’ statements given during the trial. It rejected their arguments that they had been in a restaurant with Mr R.A. at the time when the drugs had been loaded into the truck, as there had been no such place in the vicinity of the car park. Even if they had been in a restaurant, the nearest one was located far away from the car park and would have required the applicants to walk for a considerable period of time, which the court found unreasonable given the weather conditions at the relevant time. Lastly, and for the reasons provided in its first decision, the court rejected the applicants ’ complaints regarding the absence of audio recording.

The applicants appealed arguing that, inter alia , the trial court had refused to admit in evidence the original video material, which the applicants had sought to have admitted so that light could be shed on the doubts concerning its credibility. They also complained about the refusal to admit the Ministry ’ s request of 19 December 2004 that prompted the public prosecutor ’ s order, arguing that this was crucial for establishing the lawfulness of that evidence. The public prosecutor also appealed against the decision.

At a public session on 27 February 2006, the Skopje Court of Appeal allowed the public prosecutor ’ s appeal and increased the applicants ’ sentence: the first applicant ’ s sentence was increased to ten years ’ imprisonment and the second applicant ’ s sentence was increased to seven years ’ imprisonment. It dismissed the applicants ’ appeal, finding no grounds to depart from the established facts and the reasoning given by the trial court. It stated that the trial court had examined the VHS tape and had confirmed its credibility by watching it and by describing the events as filmed.

On 16 May 2006 the applicants lodged an appeal with the Supreme Court on points of law ( барање за вонредно преиспитување на правосилна пресуда ), in which they reiterated their complaints that their conviction was based on inadmissible evidence namely, the VHS tape, whose credibility and lawfulness they challenged. They further complained that court transcripts in the case file had been modified after the trial and did not correspond to the copies in their possession.

In a decision of 20 December 2006, the Supreme Court dismissed the applicants ’ appeal and upheld the lower courts ’ decisions. It did not have jurisdiction to consider the complaints about the court transcripts and, otherwise it adhered to the reasons given in the lower courts ’ decisions of October 2005 and February 2006 respectively. The decision was served on the applicants on 9 February 2007.

On 11 April 2007 the applicants complained to the Judicial Council ( Судски Совет ) that modifications had been made to the transcripts. Having examined the case file and interviewed the trial judge, the Judicial Council, in a letter of 3 December 2007, informed the applicants that there had indeed been certain modifications, which had concerned only structure and not content. In the absence of any evidence, no responsibility for the amendments could be attached to the trial judge.

As regards the modification of the transcripts, the Organised Crime and Corruption Department of the Public Prosecutor ’ s Office, acting upon the applicants ’ request, opened a file. No decision as to any prosecution has yet been taken.

B. Rele vant domestic law

Criminal Proceedings Act as amended on 22 October 2004 (“the Act”)

Under section 42 § 2 (2) of the Act, in respect of criminal offences subject to automatic prosecution by the State, the public prosecutor can order the use of a special investigative technique in pre-trial proceedings under the conditions and in the way specified by law.

Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia , an organised group. Secret surveillance and audio-visual recordings are among the permitted special investigative techniques (section 142-b § 1 (3)).

Section 142-c § 1 provides that information, documents and objects obtained by means of a special investigative measure may be used as evidence in criminal proceedings.

Under section 142-d § 3, at the pre-trial stage, the use of special investigative techniques 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 an investigating judge or the public prosecutor or contrary to the Act.

Section 142-f §§ 2 and 3 of the Act provide that, inter alia , the Ministry shall prepare, after the expiration of the period within which a special investigative technique was used, a report and shall submit it to the public prosecutor if the order for the technique used was issued by the latter.

COMPLAINTS

The applicants complained under Article 6 of the Convention that the proceedings in question had been unfair in respect of the video recording admitted in evidence. They further complained that some court transcripts had been modified and that their complaints in this respect had been unsuccessful. They also alleged that the proceedings had lasted too long. Lastly, they relied upon Article 13 of the Convention.

THE LAW

The applicants complained under Article 6 of the Convention that they had been denied the right to fair trial alleging that they had been convicted on the basis of unlawful and unreliable evidence and that the domestic courts had refused their requests for evidence to be admitted in this respect. They also complained that some court transcripts had been modified and that the proceedings had lasted too long. They relied on Articles 6 and 13 of the Convention, which in so far as relevant, read as follows:

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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. Lawfulness and admissibility of evidence

1. The parties ’ submissions

The Government submitted that the applicants were convicted in proceedings that were compatible with the requirements of fairness specified in Article 6 of the Convention. Their conviction was based on a number of items of evidence, including the video material recorded on the VHS tape, which had been lawfully obtained. In this connection, they maintained that the video recording of the car park had been ordered by the public prosecutor because the identity of the suspects had been unknown to the authorities at the relevant time. In support of this assertion was the Ministry ’ s request (no.20.4-21558 of 19 December 2004) on the basis of which the public prosecutor had ordered the video surveillance of the car park. The list of passengers had been brought to the Ministry ’ s attention on 20 December 2004, namely after the recording had taken place. The applicants were not denied the right to present arguments in their defence and the fact that the domestic courts did not give weight to them did not mean that they were denied the right to a fair trial. Lastly, the domestic courts gave sufficient reasons for their decisions.

The applicants reiterated that their defence rights had been violated by the trial court ’ s refusal to admit the Ministry ’ s request. The fact that the investigating judge had ordered the search of the truck supported their allegations that the identity of the suspects had been known to the authorities at the relevant time and that the public prosecutor ’ s order for audio-visual surveillance had accordingly been invalid.

2. The Court ’ s assessment

The Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Bykov v. Russia [GC], no. 4378/02, § 88 , ECHR 2009–... ).

It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether an applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Lee Davies v. Belgium , no. 18704/05 , § 41 , 28 July 2009 ).

In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicants were given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Khan v. the United Kingdom , no. 35394/97, §§ 35, ECHR 2000 ‑ V , and Allan v. the United Kingdom , no. 48539/99, § 43 , ECHR 2002 ‑ IX ).

In the present case, the Court notes that the applicants ’ guilt was based, to a decisive extent, on the visual recording of the car park where the drugs had been loaded into Mr P.G. ’ s truck. The VHS tape admitted at trial and submitted to the Court showed the applicants ’ car in the car park (while the drugs were being loaded) and the applicants embracing Mr R.A. and Mr I.N. when the truck left the scene. The courts interpreted this to the applicants ’ significant disadvantage.

In contesting the use of the material obtained through the visual recording of the car park, the applicants put forward two arguments: that the video material recorded on the VHS tape and admitted at the trial was unreliable and that the recording was unlawful as it had not been ordered by an investigating judge, the only competent authority.

The applicants raised these issues before the trial court and in their appeals before the Appeal and Supreme Courts. Each of these points was addressed by the courts and dismissed in reasoned decisions. The courts refused their request to admit the original video material, finding no grounds to suspect the authenticity of the VHS reproduction. In this connection the Court notes that the length of the video material recorded on the VHS tape and admitted at trial corresponded to the length of the original video material recorded by the digital cameras (see “The facts” above). That this evidence had been lawfully obtained was confirmed by the public prosecutor ’ s order, which clearly stated that the video surveillance concerned persons whose identity had been unknown. The public prosecutor ’ s order was admitted at the applicants ’ request. Furthermore, the courts provided convincing reasons for having refused the applicants ’ motion to admit the Ministry ’ s request no. 20.4-21558 that prompted the prosecutor ’ s order namely, that it was the public prosecutor ’ s order that constituted the operative legal document and not the said request. In any event, this request, which was submitted before the Court, also confirms that the identity of suspects was unknown to the Ministry when the surveillance was requested.

Furthermore, while the impugned recording was decisive evidence against the applicants, it was by no means the only evidence retained against them by the trial court. In this connection the latter also admitted the list of passengers confirming that the first applicant had travelled from Istanbul to Skopje together with Mr R.A., who was also convicted in the cou rse of the proceedings in question; several search reports; and other documentary evidence. It also attached importance to the discrepancy in the applicants ’ statements. Their argument that they had been in a restaurant with Mr R.A. while drugs were being loaded into the truck was refuted as unconvincing and the applicants did not present any evidence in this latter respect.

In view of the above, the Court considers that the domestic courts thoroughly examined the applicants ’ arguments and provided sufficient reasons for their decisions. Nothing has been shown to support the allegation that the applicants ’ defence rights in respect of the evidence adduced were not complied with and therefore that the guarantees of a fair trial enshrined in Article 6 of the Convention were not afforded.

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.

B. The remaining complaints

The applicants also complained of the modification of the court transcripts, the length of the proceedings and the alleged lack of an effective remedy. 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 unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić Registrar President