FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18002/02 by Ljupco GORGIEVSKI against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 6 May 2008 as a Chamber composed of:

Peer Lorenzen, President , Rait Maruste, Volodymyr Butkevych, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva, judges , and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 13 March 2002,

Having regard to the partial decision of 10 April 2006 ,

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

The applicant, Mr Ljupco Gorgievski , is a Macedonian national who was born in 1962 and lives in Kriva Palanka. He is represented before the Court by Mr R. Aleksovski, a lawyer practising in Kriva Palanka. The Macedonian Government (“the Government”) are r epresented 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.

The applicant worked as a sanitary inspector at a border post near the city of Delčevo . One of his tasks was to send samples of imported products to laboratories for further examination. In the latter case, the examination fees had to be paid by the importers directly to the laboratories.

On 22 July 1999 a company from Vinica (“the company”), which imported goods on a regular basis, presented a shipment (including toiletries, snacks and other items) for inspection at the border post.

According to Mr A., the owner and manager of the company, the applicant told him, at a private meeting that took place on 27 July 1999, that he could pay the examination fees directly to him and that he could send fewer samples for inspection. As he suspected that the applicant was actually demanding a bribe, he reported the matter to the police. According to him, they suggested that he should offer the applicant a sum of money in bank notes which they had marked in order to keep track of them.

On 29 July 1999 Mr A. and his business partner and relative, Mr P., who was aware of the alleged conversation, came to the border post looking for the applicant. The applicant and Mr A. met in a restaurant near the applicant ’ s office. Mr A. gave 400 German marks (DM) to the applicant and left. The applicant was subsequently arrested in front of his car.

(a) The pre-trial proceedings against the applicant

On 29 July 1999 the investigating judge of the Delčevo Court of First Instance (“the trial court”) opened an investigation in respect of the applicant on reasonable suspicion of having accepted a bribe of DM 400. A pre-trial detention of thirty days was ordered on the basis that the applicant might obstruct the investigation by influencing witnesses if released. A warrant to search the applicant ’ s home was also obtained and the search was conducted on the same day.

According to the statements taken in the course of these proceedings, the applicant stated, inter alia :

“ ... Mr A. objected to the fact that I had taken too many samples for examination. I told him that I could not avoid sending samples for examination and that I had taken as many samples as necessary. Then he promised me that he would reward me if I showed restraint and avoided sending samples for examination. It was just a general proposition, without any exact figures as to the amount. I refused. Today, he came to the border post and asked me to meet him. We went to the restaurant and he repeated his offer. I refused again. He then put something in my pocket and left the restaurant. I was surprised at first and saw that it was DM 400. I put it in my trouser pocket and went out to look for him. As he had gone, I was afraid and did not know whether I should go to the police. That ’ s why I went to my car. There I was approached by several policemen who searched me and asked where the money had come from. As I was afraid, I told them that I had obtained it in Kočani ... I would just like to add that there was nobody but the waiter in the restaurant during my meeting with Mr A ... ”

On 4 August 1999 the investigating judge examined Mr A. and Mr P. The former stated, inter alia :

“... On Tuesday [date not specified], I arrived at the applicant ’ s office and we both went to the restaurant. Then, he told me that “he had examined [samples for] me for two years” ... he therefore told me that we should agree not to send any samples of imported products for examination ... He said also that I should not pay [the examination fees] directly to [the name of the examination institutions], but that I should give the money to him. He said that the tariff per vehicle was DM 200 or DM 400 and that I should decide how much I would give... After I had left for Vinica, I considered the consequences of giving the money to the inspector [referring to the applicant] ... and decided to inform the chief inspector of Kočani about the case again ... The chief inspector took from me [the two bank notes of DM 200] and returned them on Thursday, 29 July 1999. The same day at about 1 pm, Mr P. and I arrived at the border post. I entered [the applicant ’ s] office, but he was not there. Then he saw me... then we went to the restaurant. We sat at a table, and Mr P. sat at a nearby table. There was nobody else in the restaurant... Since he knew that I would give him money, he asked me “do you have the money?”. I didn ’ t reply, but took DM 400 (2x DM 200) out of my shirt pocket, [the applicant] took it with his right hand and put it in his shirt pocket. I told him that it was DM 400 and asked if it was enough. He took the money out of his shirt pocket, looked at it and put in his trouser pocket. We stayed in the restaurant for about five minutes. The money changed hands at the beginning ... I want to add that, on 29 July 1999, I noticed two persons in plain clothes, a man and woman, sitting in the restaurant ... I assume they were policemen ...”.

Mr P., inter alia , stated:

“ ... I consider that the applicant treated us badly as he did not take the usual quantities of samples for examination ... We complained of his behaviour to the Customs Office, but they told us that nothing could be done ... Five or six days before the day of the events, Mr A. told me that the applicant had arranged a meeting with him, as the latter was no longer satisfied with the quantities of samples he had taken, but that he had asked for money to let our trucks through without difficulties. We informed the police, who told us that we must provide proof. On 29 July 1999 I went with Mr A. to the border post and I was in the restaurant when the money was given to the applicant. I was sitting at a nearby table when I heard the applicant say ing that he wouldn ’ t work for the State anymore, but for himself. Then I heard the applicant asking about the amount of money ... I would like to add that when the applicant asked for the money, Mr A. put bank notes into his hand. He counted the money, saying that it was not enough. At th at time, there were two people, a man and woman, in the restaurant, but I don ’ t know who they were ... ”

On 5 August 1999 the investigating judge took a statement from Mr D., a market inspector who shared the office with the applicant, who , stated, inter alia :

“ ... On 29 July 1999 ... Mr A. came into my office asking where my colleague [the applicant] was. I told him that he had left. We talked for about an hour about various business issues. While leaving, he asked me to join him at the restaurant for a drink. I didn ’ t answer. After half an hour, inspector Ljupco [the applicant] arrived ... I told him that Mr A. was looking for him and had invited us for a drink at the restaurant. Ljupco then left, but I don ’ t know where he went. A fter five minutes, [ the applicant ] returned to the office looking distressed. He asked what I was doing and left the office without saying anything . After five minutes, I had to leave the office and saw the applicant surrounded by four men and a woman . One of them asked me where I was from and called me to be a witness to the search of the applicant. They informed me that they were policemen. The applicant took DM 400 out of his pocket ... and we all went to the police station, where I made my statement ... ” .

On 10 August 1999 the applicant was released from detention, as the investigating judge had examined the relevant witnesses in the meantime.

(b) Criminal proceedings against the applicant

On 13 September 1999 the public prosecutor lodged an indictment against the applicant for having accepted a bribe in order not to take and send samples of imported products to laboratories for examination.

On 11 February 2000 the trial court held a public hearing. It heard evidence from the applicant, Mr A. and Mr P., and admitted some documentary evidence. The applicant claimed, inter alia , that he had been “set up” by Mr A. and intended to report him to the police, but that he had been prevented from doing so by the police officers who had arrested him before he got into his car. He also said that he might have wrongly stated in the pre-trial proceedings that he had obtained the money from a third person (not Mr A.), as he had been under stress.

Mr A., inter alia , stated:

“... I informed the police officers and after having been told that I would face no consequences, I decided to offer him the money. I didn ’ t arrange anything with them [the police] before I went to Delčevo on 29 July 1999 ... [after money had changed hands] I left and I don ’ t know what happened afterwards. At that time, besides us, there was a man and woman sitting at another table and two other persons. I can ’ t recall whether Mr P. was present when I gave the money to him ...”.

Mr P., inter alia , stated:

“...it was me who insisted that Mr A. report [the applicant] to the police ... I don ’ t know whether the police had had any plan ... During the meeting on 29 July 1999, there were other people in the restaurant who I didn ’ t know. It was me who left the restaurant first ...”.

The court also heard evidence from two witnesses proposed by the applicant concerning the events in the restaurant.

Mr T., a waiter at the restaurant, stated:

“As far as I can recall, Mr A. and the accused were sitting in the restaurant and stayed for about 5-6 minutes”.

Ms S., a cook at the restaurant, stated:

“As far as I can recall on the date in question, Mr A. and the accused were sitting in the restaurant ... There was nobody else besides Mr T... I cannot say what they discussed or how they behaved. I think that they stayed for about fifteen minutes”.

On the same day, the trial court gave its judgment. It found the applicant guilty of accepting a bribe and sentenced him to three months ’ imprisonment. The trial court established that after the discussion of 27 July 1999 between the applicant and Mr A., the latter notified the police, who instructed him to give the applicant money and to inform them if he accepted it. It further established that after Mr A. had put the money in the applicant ’ s shirt pocket, the latter left the restaurant and went into his office. After he had left the office, the police, who had been informed about the event in advance, searched him and found the money.

The court dismissed the applicant ’ s arguments, observing that his conduct immediately after he had accepted the bribe had not suggested an intention to report the matter to the police. Referring to the statements made by the witnesses at the trial, the court went on to conclude that the applicant had not taken any steps to return the money to Mr A. or to inform anyone. In support of its findings, the court referred to the statement made by Mr. D., to whom the applicant had also failed to report the bribe. The court also found that the police had waited to see whether the applicant would report the bribe and had acted when there had been no reaction by the applicant. The penalty was determined on the basis of, inter alia , the applicant ’ s behaviour at the trial, the fact that he had previously performed his duties in accordance with the regulations and his lack of a criminal record.

The applicant appealed, alleging, inter alia , that the whole incident had been planned in advance and that he had been incited to commit the offence by the police and Mr A., and that, accordingly, he had been the victim of entrapment. He complained that the trial court had not taken into consideration the statements of the two witnesses who worked at the restaurant, who denied that anyone other than the applicant and Mr A. had been present when the money had changed hands. The testimony of Mr P., Mr A. ’ s business partner and relative, was therefore false. He also submitted a written statement by Mr T., made on 9 April 2000, which read, inter alia :

“... I saw Mr A. reach towards the pocket of [the applicant ’ s] shirt. I cannot say whether he put something in or took something out, but I remember that Mr A. left the restaurant immediately afterwards. At that moment, they did not speak to each other. After a couple of seconds [the applicant] quickly left the restaurant ...”.

The applicant further argued that the trial court had misinterpreted Mr D. ’ s statement concerning his behaviour after he had left the restaurant. In that connection, he proposed another person, Mr O., to be examined as a witness regarding the issue as to whether the applicant had gone directly to his car or to his office after leaving the restaurant. He submitted a written statement of 9 April 2000 by the person concerned, claiming that he had seen the applicant going to his car after he had left the restaurant. He requested the Court of Appeal to hold a hearing.

At a hearing held on 27 September 2000, the Štip Court of Appeal dismissed the applicant ’ s appeal and upheld the trial court ’ s decision. It found that the latter had correctly established the facts and applied the law. It held that the trial court had given sufficient reasons for its findings and that these had been substantiated by the relevant evidence it had taken into consideration. It dismissed the applicant ’ s allegations that he had been entrapped by an agent provocateur (Mr A.) and that he had not intended to keep the money, but to report the matter to the police. The court recalled that the applicant had told Mr A. that he was changing his working methods and that instead of paying the examination fees to the laboratory, the latter could pay him directly. It also held:

“ ... if the applicant had had no intention of taking and keeping the money, he should have reacted immediately. On the contrary, in Mr A. ’ s presence, he put the money in his pocket and said that it ‘ covered ’ only the current shipment and that they would agree upon further shipments. After Mr A. had left the restaurant, the applicant did not report the matter to the police or to any other persons . Indeed, he returned to his office and failed to inform Mr D., his colleague, about the gift received by Mr A. After several minutes, he left the office and was arrested by the police . If his intention was not to keep the money, he could have made that clear by reacting in the restaurant, especially as there were restaurant employees present. Instead, he went to his office and failed to inform Mr D. about the money ... ”

With regard to the alleged presence of Mr P. in the restaurant when the money was given to the applicant, the court held:

“ ... whether Mr P. was in the restaurant during the conversation between the applicant and Mr A. is irrelevant, as he had known about the earlier discussion between them and about the applicant ’ s statement that they would find a new way of dealing with matters concerning the import and the samples. Mr P. ’ s presence in the restaurant at the material time is irrelevant ... ”

With regard to the written statements of the witnesses and the applicant ’ s proposal that a further witness, namely Mr O., be examined, the court held that they had been examined by the trial court, and that their written statements were irrelevant to the final conclusion.

The applicant and his lawyer submitted separate requests for an extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) (“the extraordinary request”) before the Supreme Court. These requests were sent by registered mail and according to the delivery receipt, they were received by the trial court on 27 February and 19 March 2001, respectively. They complained, inter alia , that the lower courts had based their decisions on evidence which should not have been taken into consideration, as it had been obtained as a result of the police incitement to commit the offence and Mr A. ’ s role as an agent provocateur .

In a letter which was also sent by registered mail and received by the trial court on 12 June 2001, the applicant supplemented his extraordinary request, arguing that the establishment of facts by the Court of Appeal contradicted that of the trial court and that its finding that Mr O. had already been examined by the trial court was erroneous. He also alleged that the Court of Appeal had not examined his appeal in full, in particular concerning the role of Mr A. as an agent provocateur and the role of the police.

On 21 March 2001 the public prosecutor rejected the applicant ’ s application to lodge a request for the protection of legality ( барање за заштита на законитоста ) with the Supreme Court.

On 18 September 2001 the Supreme Court dismissed the extraordinary request lodged by the applicant ’ s lawyer, as submitted within the statutory term, and confirmed the lower courts ’ decisions. It held, inter alia , that the applicant ’ s conviction had not been based on inadmissible evidence, but on a range of written and oral evidence adduced during the proceedings. It did not comment on the applicant ’ s extraordinary request and its supplementary part.

On 17 October 2001 the State President replaced the applicant ’ s sentence with a suspended term of two years ’ imprisonment.

On 26 November 2004 the trial court dismissed the applicant ’ s request to delete his conviction from the criminal record. It found that the applicant had been pardoned by the State President and that the statutory term of five years from the conviction had not expired. On 31 March 2005 the Štip Court of Appeal overturned that decision, finding that the applicant had not been pardoned by the State President, but that the latter had replaced the penalty imposed. The Court of Appeal ruled so after having established that the applicant had not committed any offence while on probation.

B. Rele vant domestic law

1. Criminal Proceedings Act (“the then Act”)

Section 142 of the then Act provided that, where there was a suspicion that an offence had been committed, the Ministry of the Interior (“the Ministry”) was authorised to undertake measures in order, inter alia , to find the perpetrator or to prevent him or her from fleeing or going into hiding. In order to execute its tasks, the Ministry could take, besides those listed in the second paragraph of that section, other necessary measures and actions.

According to section 355 § 1 (8) of the then Act, t h ere wa s a substantial procedural flaw if, inter alia , the judgment was based on inadmissible evidence, unless the same judgment would have been adopted even in the absence of that evidence.

Section 356 § 1 (2) provided, inter alia , that a violation of the Criminal Code would occur in cases where there were grounds for excluding the defendant ’ s criminal responsibility.

Section 406 (1) provide d that the c ourt had to confine itself to reviewing the alleged violations complained of by the complainant.

Section 408 (1) provide d that if the request was well founded, the c ourt was to either overturn the final decision or quash, entirely or in part, the decisions of the trial court and the appellate court, or the appellate court ’ s decision alone, and refer the case back for a retrial or to the appellate court or establish the violation itself.

Section 409 provide d that if there was considerable doubt as to the relevant facts established in the judgment against which the request was lodged and, accordingly, it could not be reviewed on the merits, the court would quash it and order a rehearing before the same or another trial court.

Section 411 §§ 1 and 2 provide d, inter alia , that a person convicted by a final judgment and sentenced to imprisonment may lodge a request for extraordinary review of the final judgment. The request could be submitted within one month from the date on which the convicted person had been served with the judgment.

Section 413 § 1 provide d that a request for extraordinary review of a final judgment could be submitted, inter alia , for :

( 1) a breach of the Criminal Code to the convicted person ’ s significant disadvantage, as defined in section 356 ( 1 ) to ( 4 ) of the then Act;

( 2) an infringement of the procedural rules as stipulated in section 355 § 1 ( 8 ) (see above), or

( 3) a violation of the defence rights of the convicted person by the trial court or an infringement of the procedural rules in the appeal proceedings, if relevant to the adoption of a just decision.

Section 414 §§ 1 and 3 provided, inter alia , that a request for extraordinary review of a final judgment could be lodged by the convicted person or his counsel. Requests lodged out of time or by an unauthorised person or in respect of a penalty not amenable to such review (section 411 (1)) or which were not prescribed by the then Act (section 411 ( 3 ) and ( 4) ) will be rejected by the presiding judge of the trial court or the court competent to decide upon the matter.

Section 415 stipulated that sections 405 §§ 1 and 2, sections 406, 407, 408 §§ 1 and 2 and sections 409 and 411 of the then Act would apply to requests for extraordinary review of a final decision.

(2) Amendments to the then Act adopted on 14 October 2004 (“the new Act”)

Section 142-b of the new Act provides that, with a view to securing information and evidence which cannot be otherwise secured, or the gathering of which would involve difficulties, special investigating techniques may be ordered on account of a reasonable suspicion that certain criminal offences were committed by, inter alia , an organised group. A simulated offer and acceptance of a bribe is among the special investigating techniques prescribed (section 142-b § 1 (4)). Special investigating techniques must not be used to incite the commission of offences. No prosecution would be taken against a person who uses the special investigating techniques in order to secure information and evidence necessary for a successful investigation.

Section 142-c provides that information, documents and objects gathered using a special investigating measure can be used as evidence in criminal proceedings.

Section 142-d §§ 1, 2 and 3 provides that, at the pre-trial stage, special investigating techniques can be ordered by the public prosecutor or an investigating judge. After an investigation has been opened, the use of such techniques can be ordered only by an investigating judge. At the pre-trial stage, the use of a special investigating measure can be ordered by an investigating judge by way of a reasoned written decision given upon a reasoned written request by the public prosecutor, or by the public prosecutor by a reasoned written decision only in respect of a person whose identity is unknown.

Under section 142-e §§ 3 and 4, special investigating techniques may be used for four months at most. Evidence adduced using special investigating techniques cannot be used at trial if those techniques were applied without having been ordered by an investigating judge or the public prosecutor or in contradiction to the Act.

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the proceedings had been unfair, in particular concerning the alleged involvement of an agent provocateur (Mr A.) in the commission of the offence and the alleged restriction of his defence rights in respect of the witnesses on his behalf. In this latter respect, he complained that the principle of equality of arms was breached in that the Court of Appeal had refused to summon Mr O., the witness he had proposed, and had not taken into consideration the statements of the witnesses to the effect that nobody else had been in the restaurant except for the applicant and Mr A. He also complained that insufficient reasons had been given for the Appeal and Supreme Court decisions, in particular concerning the role of Mr A. as an agent provocateur .

THE LAW

1. The applicant submitted that he had been incited to commit the criminal offence and that no reasons had been given to contradict his allegations of the involvement of an agent provocateur , in breach of his right to a fair trial under Article 6 § 1 of the Convention, the relevant part of which provides:

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

a. The parties ’ submissions

The Government submitted at the outset that the extraordinary request in criminal proceedings was to be regarded as an effective remedy which the applicant had availed himself of in respect of his allegations of being entrapped into committing the offence. In support of their assertion about the effectiveness of the extraordinary request, they stated that that request had been directly accessible to the applicant and, referring to the resulting effect of the Supreme Court ’ s decision as set forth in section 415 in conjunction with section 408 of the then Act, capable of providing redress. The mere fact that the Supreme Court dismissed the applicant ’ s extraordinary request did not render it ineffective.

They stated that the impugned proceedings concerned the involvement of an agent provocateur , as prescribed by the then Act. The Supreme Court dismissed the applicant ’ s complaints about the use of inadmissible evidence, finding that his conviction had been based on considerable evidence.

The Government maintained that an agent provocateur had been used in the present case in compliance with law. Relying on section 142 of the then Act (see “Relevant domestic law” above), the Government maintained that the Ministry had been authorised to do that. The domestic courts, at all instances, had discussed the role of the agent provocateur and decided that the applicant would have committed the offence even without Mr A. ’ s intervention. Finally, they averred that the intervention of the agent provocateur had been considered as an alleviating circumstance given that the applicant had received the most lenient penalty provided for under the law. Given that the initial prison sentence was replaced by a suspended term of imprisonment and that the applicant ’ s conviction was finally deleted from the criminal record, they concluded that the intervention of the agent provocateur had not affected the applicant ’ s rights under Article 6 of the Convention.

The applicant contended the Government ’ s submission that the domestic courts had examined expert reports and stated that only a few testimonies had been heard. He pointed out that the Government, contrary to the domestic courts ’ decisions, had for the first time acknowledged, and given arguments to justify, the use of the agent provocateur in the proceedings against him. He maintained that section 142 of the then Act had contained only a general provision which had not provided for any guarantee or safeguard against the use of an agent provocateur . That provision excluded any involvement of a judge and gave unrestricted power to administrative authorities. An appropriate judicial protection from abuse was indispensable. He further submitted that he had not received a fair trial in that he had been entrapped into committing the offence by the agent provocateur , who had been working under the guidelines and instructions of the police. He averred that his conviction had been based, mainly and to a decisive extent, on the statements made by the agent provocateur . The other evidence stemmed from his involvement. He would not have committed the offence without the latter ’ s intervention. He further disputed the Government ’ s assertion that the involvement of the agent provocateur had been considered as an alleviating circumstance in the determination of his sentence, as being contrary to the trial court ’ s decision.

b. The Court ’ s consideration

The Court notes that the Government, referring to the replacement of the applicant ’ s initial prison sentence by the decision of the State President and the deletion of the applicant ’ s conviction from the criminal record, concluded that the intervention of the agent provocateur had not affected the applicant ’ s rights under Article 6 of the Convention.

The Court considers that th at submission may be considered as an objection that the applicant could no longer claim to be a victim of the violation complained of. In this connection, it reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V, and the references cited therein). In the present case, the Court notes that neither the State President nor the Court of Appeal have mentioned in their decisions the alleged involvement of the agent provocateur in the applicant ’ s conviction. They have therefore not acknowledged the alleged breached of the Convention. That being so, the Court concludes that the applicant can claim to be a victim of a violation of Article 6 § 1 of the Convention.

In view of the remainder of the parties ’ observations on this part of the application under Article 6 § 1 of the Convention , the Court finds that it raise s complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained that the principle of the equality of arms and his defence rights had been violated in that the Court of Appeal had refused to summon Mr O. and had not taken into consideration the statements of the witnesses to the effect that nobody else had been in the restaurant except for the applicant and Mr A. He also complained that the domestic courts ’ decision had not been sufficiently reasoned. In this connection he alleged a violation of Article 6 §§ 1 a nd 3 (d) of the Convention which provides:

“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 ...”.

The Government stated that the applicant had had a fair trial. Referring to the Court ’ s jurisprudence on the matter, they submitted that it had been to the domestic courts to assess the probative value of the evidence. In the applicant ’ s case, the courts had assessed the evidence proposed and determined that a repeated examination of witnesses would be meaningless. They further submitted that there had been no evidence in the case file that the applicant had lodged the supplement to his extraordinary request.

While the applicant accepted that it was primarily for the domestic courts to assess the evidence, he submitted that reasons should be given for evidence that was not admitted. That was not the case with his proposal that the Court of Appeal examine Mr O. regarding an issue which had been of key importance for his case. In that connection, he disagreed with the Government that that proposal had been, in fact, a request for a repeated examination of witnesses, since Mr O. had never been questioned at the trial. The applicant argued that in its decision the Supreme Court had addressed neither his personal extraordinary request nor its supplementary part, although they had been duly received by the trial court. They might not have been forwarded to the Supreme Court for consideration, but that fact, in itself, revealed the poor system of registration and transfer of case documents between the courts, which, ultimately, was the State ’ s responsibility. That had proved detrimental in his case.

The Court considers, in the light of the parties ’ submissions, that this part of the application is closely linked to that of the alleged involvement of an agent provocateur and that it must therefore be likewise declared admissible.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

             Claudia Westerdiek Peer Lorenzen Registrar President