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 10 April 2006 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and M r s C. Westerdiek , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ljupco Gorgievski , is a national of the former Yugoslav Republic of Macedonia who was born in 1962 and lives in Kriva Palanka , the former Yugoslav Republic of Macedonia .

A. The circumstances of the case

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

The applicant worked as a health inspector at the border post near the city of Delčevo . His task was, inter alia , to examine the quality of imported products or send samples of those products to laboratories for further examination. In the latter case, the cost of the examination had to be paid by the importers directly to the laboratories.

On 22 July 1999 the company Mak-progres 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. The applicant took several samples to be sent for laboratory examination. Mr A. (the owner and manager of the company) had often complained in the past that the applicant took too many samples for examination. According to Mr A. ’ s testimony, the applicant told him, at a private meeting that took place on 27 July 1999 , that he had paid the taxes and inspection fees regularly and was a man the applicant could work with. The applicant also told him that he could pay the costs of the laboratory examination directly to him. As he suspected that the applicant was actually demanding a bribe, he reported the matter to the police. 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. According to Mr A., he put 400 German marks in the pocket of the applicant ’ s shirt and left. In reply to a question from Mr A., the applicant said that it was only for the present shipment. After the applicant had put the money in his trouser pocket, he went first to his office and was subsequently arrested in front of his car.

The same day, the applicant was brought before an investigating judge. According to the record, he was informed by the investigating judge about his right to legal counsel. The applicant ’ s counsel joined the interview afterwards. The applicant stated, inter alia :

“ ... Mr A. objected that I took too many samples for examination. I told him that I could not avoid sending samples for examination and that I took 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 went out of the restaurant. I was surprised at first and saw that it was 400 German marks. I put them 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 ... ”

As the investigating judge found that the applicant might obstruct the investigation by influencing witnesses if released, he ordered his detention pending trial for thirty days. A warrant to search the applicant ’ s home was also obtained and the search was conducted the same day.

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

On 4 August 1999 the investigating judge examined Mr A., Mr P. and Mr D., a market inspector who shared an office with the applicant. Mr P. stated, inter alia :

“ ... 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 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 notes into his hand. He counted the money, saying that it was not enough. At that time, there were two people (husband and wife) in the restaurant, but I don ’ t know who they were ... ”

Mr D. stated, inter alia :

“ ... after five minutes, the applicant returned to the office looking distressed. He asked what I was doing and left the office without saying anything ... I saw the applicant surrounded by four men and a girl. 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 400 German marks out of his pocket ... and we all went to the police station, where I gave my statement ... ”

On 11 February 2000 the Delčevo Court of First Instance 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 had 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. The court also heard evidence from the two witnesses proposed by the applicant concerning the events in the restaurant. Both of the witnesses, Ms S. (a cook in the restaurant) and Mr T. (a waiter in the restaurant) stated that besides the applicant and Mr A. there had been nobody else in the restaurant. They said that they had not heard the content of their discussion.

The same day, the Delčevo Court of First Instance gave its judgment. It found the applicant guilty of accepting a bribe and sentenced him to three months ’ imprisonment. The judgment was delivered in writing and mailed to the parties subsequently. The court dismissed the applicant ’ s arguments, observing that his conduct immediately after he had accepted the bribe had not suggested any 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. (the market inspector), 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 court found further that the applicant had performed his duties in accordance with the regulations.

The applicant appealed, alleging, inter alia , that the whole incident had been planned in advance and that he had been incited by the police and Mr A., and as such had been entrapped into committing the offence. He complained that the trial court had not taken into consideration the statements of the two witnesses who worked in 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 the written statement of the waiter and proposed another person 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 from 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 the hearing held on 27 September 2000 the Štip Court of Appeal dismissed the applicant ’ s appeal and upheld the lower court ’ s judgment. It found that the lower court had correctly established the facts and applied the national legislation. It held that the lower court had given sufficient reasons for its findings and that these were substantiated by the relevant evidence it had taken into consideration. It held, inter alia :

“...the judgment is not based on one piece of evidence alone. The trial court found the applicant guilty of committing the offence on the basis of that evidence taken in conjunction with other written and oral evidence ... ”

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 fees for the examination to the laboratory, the latter could pay him directly. It also held:

“ ... if the applicant 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. left the restaurant, the applicant did not report the matter to the police or to any other persons ... 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 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 counsel submitted separate requests (received by the Delčevo Court of First Instance on 27 February and 19 March 2001 respectively) for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) before the Supreme Court. 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 . The applicant also complained of the admission of the statement by Mr D who, as a civil servant dealing with confidential information, required permission from his superiors before making a statement.

In a letter submitted subsequently (received by the Court of First Instance on 12 June 2001), the applicant complained that the establishment of the facts by the Court of Appeal contradicted that of the trial court and that its finding that the witness proposed 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 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 request lodged by the applicant ’ s lawyer and upheld 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 subsequent submission concerning the refusal of the Court of Appeal to hear a new witness.

On 17 October 2001 the State President reduced the applicant ’ s sentence, on account of mitigating circumstances, to a suspended term of two years ’ imprisonment.

The applicant ’ s arrest had been reported in brief by the daily newspapers. The reports did not contain any statements by the police or the judges, or any conclusions as to his possible guilt.

B. Relevant domestic law

In accordance with section 112 (1) of the Criminal Proceedings Act ( Закон за кривична постапка ), the interested parties who attended the hearing take note of a court decision by its oral pronouncement or, in case of absence, by being served with a certified transcript of the decision.

Section 337 (2) provides that a judgment is adopted and publicly pronounced in the name of the citizens of the former Yugoslav Republic of Macedonia.

Pursuant to section 344, after adoption of a judgment, the Presiding judge pronounces it immediately. If the court cannot pronounces the judgment on the same day when the trial was completed, it will postpone the pronouncement for at most three days and will determine the time and place of the pronouncement. In presence of the parties, their defence attorneys, the authorised representatives and counsel, the Presiding judge publicly pronounces the judgment and briefly states its reasons. The judgment is pronounced even when the party, the defence attorney, the authorised representative or the counsel are absent. If the public was excluded from the trial, the judgment will always be read aloud at a public session.

According to section 355 , t h ere is a substantial infring ement of criminal procedure in cases where, for instance, the court is improperly composed or the judgment is adopted by a judge or a lay judge who did not participate in the trial hearing or who was removed from the trial by a final decision; there is no indictment by an authorised prosecutor, request by the victim or authorisation by a competent body; the judgment is based on inadmissible evidence, unless the same judgment would have been adopted even in the absence of that evidence; or the terms of the indictment are exceeded. According to paragraph 2 of this section, inter alia t here is a substantial infring ement of criminal procedure in cases where the court during the preparation and course of the hearing or during the decision-making process did not apply or wrongly applied a statutory provision.

Section 356 provides, inter alia , that a violation of the Criminal Code occurs in cases where the offence for which the person is prosecuted is not a criminal one; there are grounds for excluding the defendant ’ s criminal responsibility; there are grounds for excluding a prosecution, in particular because it has become time-barred or is the subject of an amnesty or because the matter has become res judicata ; or the wrong law is applied.

Section 406 (1) provides that the c ourt must confine itself to reviewing the alleged violations complained of by the applicant.

Pursuant to section 407, the court must dismiss the request as ill-founded if it finds no violation of the law complained of.

Section 408 (1) provides that if the request is well founded, the c ourt must 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 provides that if there is considerable doubt as to the relevant facts established in the judgment against which the request was lodged and, accordingly, it cannot be reviewed on the merits, the court may quash it and order a rehearing before the same or another trial court.

Section 411 provides , inter alia , that a person convicted by a final judgment and sentenced to imprisonment may lodge a request for extraordinary review of a final judgment in respect of the alleged violations of the law therein. The request may be submitted within one month from the date on which the convicted person was served with the judgment.

In accordance with section 412, the Supreme Court decides upon the request for extraordinary review of a final judgment.

Section 413 provides that a request for extraordinary review of a final judgment may be submitted on the following grounds:

( 1) a breach of the Criminal Code to the detriment of the convicted person, as defined in section 356 ( 1 )to ( 4 ) of the Law or a violation as defined in subsection 5 of that section, if the court exceeded its jurisdiction with regard to the decision on the penalty, a security measure or a seizure of property.

( 2) an infringement of criminal procedure for the purposes of section 355 ( 1 ) subparagraphs 1, 5, 8, 9 or 10 of the Law, or

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

Section 414 provides , inter alia , that a request for extraordinary review of a final judgment may 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 are not prescribed by the Law (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 stipulates that sections 405 ( 1 ) and ( 2 ) , sections 406, 407, 408 ( 1 ) and ( 2 ) and sections 409 and 411 of the L aw apply to requests for extraordinary review of a final decision.

COMPLAINTS

The applicant lodged complaints under Article 5 §§ 1(c), 2, 4 and 5 of the Convention .

He also complained, under Article 6 of the Convention, that the proceedings against him had been unfair in that the national courts had established the facts erroneously, wrongly assessed some of the evidence and based their findings mainly on the statement (which was in his opinion contradictory) by Mr A., who had acted as an agent provocateur in cooperation with and under the supervision of the police. He complained that the trial court judgment had not been pronounced publicly, that the judge had not informed him about his rights during the trial and that he had not been given adequate time and facilities to prepare his defence. He further complained that the principle of equality of arms had been breached in that the Court of Appeal had refused to summon the witness he had proposed and had not taken into consideration the statements of the witnesses to the effect that nobody had been in the restaurant except for the applicant and Mr A. (he also relied on Article 6 § 3(d) in that connection). He alleged a violation of Article 6 § 3(c) in that he had not been informed about his right to defend himself through legal assistance. He complained that insufficient reasons had been given for the Appeal and Supreme Court decisions, in particular concerning the role of Mr A. as agent provocateur . He alleged a lack of impartiality and independence on the part of the judges, as they had been nominated and appointed by the Government and the courts were financed out of the State budget. Relying on Article 6 § 2 of the Convention, he complained that the statements published in the press during the trial had violated the principle of the presumption of innocence.

The applicant relied on Article 7 of the Convention, complaining that he had been “set up” and entrapped into committing the offence.

He complained under Article 8 of the Convention that he had been incited to commit the offence by the police; that comments made in the media had labelled him guilty before he had been convicted and that the search of his office had been unlawful.

The applicant alleged a violation of Article 13 of the Convention in that the Supreme Court had given its decision on the basis of the facts already established by the lower courts.

He relied on Article 14 of the Convention, complaining that he had been discriminated against vis-à-vis the other party in the proceedings.

He further relied on Article 18 of the Convention.

He also complained, under Article 1 of Protocol No.1, that the product samples seized had not been handed in for examination and as such might endanger people ’ s lives and health.

THE LAW

1. The applicant complained under Article 6 of the Convention of a number of violations, set out above (see “Complaints”). Article 6, in its relevant parts, provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(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) The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant ’ s complaints about the alleged unfairness of the proceedings, in particular concerning the alleged involvement of an agent provocateur (Mr A.) in his conviction and the alleged restriction of his defence rights in respect of the witnesses on his behalf, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) As to the applicant ’ s complaint that the first ‑ instance judgment was not pronounced publicly, the Court observes that it was adopted at the hearing held on 11 February 2000 and was subsequently delivered in writing and served on the applicant. Even assuming that the judgment was not read out aloud at the hearing, the Court notes that it was accessible to the public. Taking the circumstances of the case as a whole, the Court also points out that the general public was not excluded from the trial (see Sutter v. Switzerland , judgment of 22 February 1984 , Series A no. 74, § 33) . As such, the requirement of public pronouncement of a judgment was not breached.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c) The Court considers unsubstantiated the applicant ’ s complaint that he was denied adequate time and facilities to prepare the case and that he was not informed about his rights in the trial, given that he was represented by a lawyer throughout the proceedings, who defended his rights and interests. Moreover, it appears that the applicant was not short of time for preparing his defence, as the indictment was lodged by the public prosecutor on 13 September 1999 and the public hearing before the trial court was held on 11 February 2000 . Furthermore, it appears that the applicant did not raise these complaints in his appeal before the Court of Appeal.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(d) The applicant ’ s complaints under Article 6 § 3(c) are also manifestly ill-founded as he had the benefit of legal assistance throughout the proceedings.

Accordingly, they must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(e) The Court also finds unsubstantiated the applicant ’ s complaints about the lack of impartiality and independence of the courts . It notes that the mere fact that the judiciary is financed from the State budget does not mean that the courts lack independence. The judges ’ term of office (judges are irremovable during their tenure) and the manner of their appointment and removal (in which the Government have no role) are among the factors that guarantee judges ’ freedom from outside pressure.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(f) The applicant further maintained under Article 6 § 2 that the presumption of innocence was infringed by the statements made by officials to the media which allegedly labelled him guilty before he was finally convicted. The Court finds that he failed to exhaust domestic remedies in relation to this complaint as he did not claim damages nor did he bring criminal charges on account of the alleged violation of the presumption of innocence.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The Court considers that all of the applicant ’ s complaints under Article 5 § 1(c), 2, 4 and 5 of the Convention are inadmissible either because they are unsubstantiated or because he failed to exhaust domestic remedies. The applicant was brought before the investigating judge on the same day as his arrest by the police on account of a reasonable suspicion that he had committed an offence. He was also informed about his right to legal assistance and was assisted by a lawyer who was present while he was being interviewed. The investigating judge ordered that the applicant be placed in pre ‑ trial detention for thirty days on account of a reasonable suspicion that he might obstruct the investigation by influencing witnesses. As the judge had examined the relevant witnesses in the meantime, the applicant was released after thirteen days in detention.

Moreover, the applicant did not challenge the investigating judge ’ s decision to detain him before the Criminal Division of the Court of First Instance ( Кривичен Совет на Основниот Суд ) . N or did he later challenge the lawfulness of his detention. He did not claim damages either.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. As regards the applicant ’ s complaints under Article 8 of the Convention, which guarantees, inter alia , the right to respect for a person ’ s private life and home, the Court rejects them for the following reasons:

(a) The applicant failed to raise before the domestic authorities his complaint that the search of his office had been unlawful. Even assuming that there were no remedies to exhaust, the proceedings before the Supreme Court did not concern this alleged violation and the time that elapsed before the Supreme Court does not suspend the running of the six-month period allowed (see Rezgui v. France (dec.), no. 49859/99, ECHR 2000 ‑ XI ) .

It follows that this complaint was introduced out of time, namely more than six months after the events concerned, and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b) With regard to the applicant ’ s allegations that his reputation was called into question by the statements made to the press by state officials concerning his guilt before he had been convicted, the Court notes that the applicant neither filed a criminal complaint for defamation nor claimed damages.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(c) As to the applicant ’ s allegations that he was incited by the police to commit the offence, the Court considers that they fall to be examined under Article 6 of the Convention (see above) and that no separate issue arises in the context of Article 8.

4. The Court finds the other complaints under Articles 7, 13, 14 and 18 and Article 1 of Protocol No.1 unsubstantiated or misconceived.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint about the alleged unfairness of the proceedings, the alleged involvement of an agent provocateur and the alleged breach of the applicant ’ s defence rights ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President