FIRST SECTION

DECISION

Application no. 12977/10 Zoran VELIÄŒKOVSKI against North Macedonia

The European Court of Human Rights (First Section), sitting on 23 April 2019 as a Committee composed of:

Aleš Pejchal, President, Tim Eicke, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 26 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 Zoran Veličkovski, is a Macedonian/citizen of the Republic of North Macedonia who was born in 1969 and lives in Kriva Palanka. He was represented before the Court by Mr T. Torov, a lawyer practising in Štip.

2 . The applicant died on 19 April 2015. His wife, Ms Meri Veli č kovska, and his two sons, Mr Teodor Veli č kovski and Mr Neboj š a Veli č kovski expressed willingness to pursue the application on his behalf.

3. The Government of North Macedonia (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, and subsequently by Ms D. Djonova.

A. The circumstances of the case

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

5. The applicant was a police officer stationed at passport control at the D. border crossing and employed by the Ministry of the Interior (“the Ministry”).

6. On an unspecified date a criminal investigation was opened in respect of the applicant on suspicion of abuse of office ( злоупотреба на службената положба и овластување ). He was suspected of allowing overloaded lorries to enter the respondent State without being sanctioned in accordance with the relevant procedure under domestic law.

7. On 30 November 2007 V.S. (a senior adviser in the Control and Professional Standards Unit within the Ministry) gave a statement before an investigating judge. No evidence was submitted that the applicant or his lawyer had been present or that they had been informed of the questioning of the witness. She explained in detail the correct procedure for sanctioning overloaded lorries at the border and the particular duties of police officers.

8. On 5 December 2007 D.A. (the chief officer of the Regional Centre for Border Affairs (East) in the period between 20 October 2006 and 26 November 2007) gave a statement before an investigating judge. No evidence was submitted that the applicant or his lawyer had been present or that they had been informed of the questioning of the witness. He explained the procedure to be followed and the actions the police officers were required to undertake to sanction non-compliance with the weight restrictions. He affirmed that the police were required to systematically inspect overloaded lorries and sanction each case of non-compliance in accordance with the relevant domestic regulations.

9. On 12 December 2007 D.J. (a lawyer at the Public Enterprise for the Administration of State Property) gave a statement before an investigating judge. No evidence was submitted that the applicant or his lawyer had been present or that they had been informed of the questioning of the witness. He explained the procedure at the weighbridge, the different types of documents issued, and confirmed that the computer system at the weighbridge underwent regular maintenance.

10. On 23 April 2008 the applicant was indicted before the Kriva Palanka Court of First Instance ( Основен суд Крива Паланка – “the first-instance court”) on charges of abuse of office in relation to several instances of professional misconduct in the period between 8 September 2005 and 4 October 2006. The indictment stated that the applicant (together with two of his superior officers prosecuted in separate criminal proceedings) had failed to properly sanction overloaded lorries crossing the border. The prosecutor proposed that certain evidence be admitted at trial, and requested that the court summon witnesses V.S., D.A. and D.J.

11 . In the course of the proceedings the applicant, who was represented by a lawyer, denied the charges against him and maintained that it was not his duty to systematically inspect lorries and detect overloaded vehicles. He also complained that he had not been afforded an opportunity to question witnesses in the course of the trial.

12. On 9 December 2008 the first-instance court convicted the applicant as charged and gave him a suspended seven-month prison sentence. In order to determine the relevant facts the court referred, among other evidence, to the statements of V.S., D.A. and D.J.

13 . The applicant lodged an appeal through his lawyer, complaining, inter alia , that the first-instance court had failed to secure the presence of witnesses at the trial on whose statements it had based the conviction.

14. On 17 March 2009 the Skopje Court of Appeal ( Апелационен суд Скопје – “the Court of Appeal”) quashed the first-instance judgment and remitted the case for reconsideration on the grounds that the trial judge had been acting as the investigating judge at the pre-trial stage.

15 . In the resumed proceedings, at a hearing held on 30 April 2009 the applicant withdrew the power of attorney he had given to the lawyer who had initially represented him and agreed that the trial could continue in the absence of a lawyer. The trial judge instructed him of his rights, including his right to a lawyer, his right to propose evidence and his right to examine and question any evidence. The applicant decided to represent himself. At the same hearing, with the consent of the parties, the trial judge decided to read out the statements of V.S., D.A. and D.J. given during the investigation, as the witnesses were absent. The applicant did not raise any objections.

16. On the same day the first-instance court convicted the applicant as charged, giving him a suspended six-month prison sentence and ordering him to compensate the State for the damage. From the statements of V.S. and D.A. the court established the working methods of the police at the border in respect of overloaded vehicles and the applicant ’ s omissions. The court also relied on the relevant Ministry ’ s practice instructions in order to establish the procedure to be followed at the border in respect of overloaded vehicles. The applicant ’ s work duties were determined on basis of other relevant internal regulations. From D.J. ’ s statement the court established the procedure at the weighbridge, the different types of documents issued and that the computer system at the weighbridge underwent regularly servicing. The fact that the applicant had been on duty on the critical dates when overloaded lorries had crossed the border unsanctioned was established on the basis of an expert report by the Forensic Bureau ( Биро за судски вештачења ), vehicle weight documents and shift rotation records. The court dismissed the evidence proposed by the defence, finding that it contradicted the remaining evidence, which the court found to be consistent and coherent.

17 . The applicant appealed, complaining in general terms that the judgment had been unclear, that the trial court had wrongly assessed the evidence and that all the evidence had been admitted contrary to the Criminal Procedure Act. The relevant part of his appeal reads as follows:

“... The [first-instance] judgment is unclear...owing to the unsubstantiated, unclear and unproven accusation. All the evidence was admitted contrary to the Criminal Procedure Act and all [the legislation] specified in the judgment, which the court and the prosecution claim are an indicator that I omitted to do something which I was obliged to do, indicate to the contrary.

I ask the higher court to consider and allow this appeal and quash the judgment.

I ask the higher court to take into account that the conviction against G.B., the shift supervisor... has been quashed by the Court of Appeal... I remind [the court] that in this decision there are serious remarks about the first-instance judgment and it is demanded that the proceedings be conducted responsibly. As I [have been] convicted of committing ... offences together with him, I consider that the conviction against me and the judgment are completely groundless. I ask the court to allow my appeal.”

18 . On 30 June 2009 the Court of Appeal dismissed the applicant ’ s appeal and upheld the conviction. It found that the trial court had correctly established the facts and assessed the evidence.

B. Relevant domestic law

19. In accordance with section 351(1) of the of the Criminal Procedure Act – consolidated version ( Закон за кривичната постапка – пречистен текст , Official Gazette no.15/2005), as in force at the material time, if a fact was to be established on the basis of a personal observation by an individual, the latter had to be examined at a hearing. Examination could not be replaced by a reading of a statement by that person. Section 351(2) of the Act provided that an adjudicating panel could decide to read out a transcript of a witness statement if the person concerned had died or was mentally ill, or could not be found, or his or her attendance could not be secured or was considerably impaired owing to age, illness or any other important reasons. Section 351(3) of the Act provided that the panel could decide, after consulting the parties, to read out the statement of a witness or expert who was not present at the hearing, irrespective of whether they had been summonsed to the hearing.

20 . According to section 381(2) of the Act, there was a substantial procedural flaw if the court, in the course of the trial hearing, erroneously applied a provision of the Act or violated the defence rights of the accused.

COMPLAINT

21. The applicant complained that he had not had an opportunity to question witnesses V.S., D.A. and D.J. at the trial.

THE LAW

A. Locus standi of the applicant

22. The Court must first address the issue of whether Ms Meri Veli č kovska, Mr Teodor Veli č kovski and Mr Neboj š a Veli č kovski are entitled to pursue the application originally lodged by the applicant, who died in 2015. It notes that the late applicant ’ s wife and sons expressed a wish to pursue the application on his behalf (see paragraph 2 above). The Court reiterates that in a number of cases in which the applicant died in the course of the proceedings, it has taken into account statements from the applicant ’ s heirs or close family members expressing the wish to pursue the proceedings before the Court (see Asadbeyli and Others v. Azerbaijan , nos. 3653/05 and 5 others , § 106, 11 December 2012, with further references). In the present case, it has not been disputed by the Government that the applicant ’ s close family members are entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise. However, where relevant, the Court will continue to refer to Mr Zoran Veli č kovski as “the applicant”.

B. Alleged violation of Article 6 §§ 1 and 3 (d) of the Convention

23. The applicant complained that witnesses who had been heard in the course of the investigation in his absence had not appeared at the trial and he had not had an opportunity to examine them. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:

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

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 ...”

1. The parties ’ submissions

24. The Government submitted that the applicant had failed to properly exhaust the available domestic remedies. In particular, in the resumed proceedings following the remittal of the case, at the hearing held on 30 April 2009 the applicant had consented to the statements of the witnesses being read out. Furthermore, he had not raised the issue concerning his inability to examine witnesses in either his closing arguments or his appeal. In his appeal, the applicant had merely disputed the trial court ’ s findings regarding his guilt and contested the outcome of the proceedings. He had never raised or elaborated on the issue concerning his inability to examine witnesses and the implications it had on his defence rights.

25. The applicant submitted that during the proceedings at issue he was not represented by a lawyer and that no-one had been appointed on his behalf. He also argued that the hearing record should not be interpreted as his approval of the statements being read out given that the relevant provision of the Criminal Procedure Act demanded that the judge merely consult the parties. Furthermore, in the appeal that he had lodged on his own behalf he had indirectly raised the issue by stating that all the evidence had been admitted contrary to the Criminal Procedure Act. The Act required that all witnesses should be examined at a public hearing and that the parties should be given an opportunity to examine them. He had also relied on the Court of Appeal ’ s decision in the case against another colleague, in which the conviction had been quashed and where the issue of the inability to confront the same witnesses had been raised.

2. The Court ’ s assessment

26. The relevant Convention principles concerning the exhaustion of domestic remedies have been summarised in the Court ’ s judgment in the case of Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

27 . While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III).

28. The Court notes that before the case was remitted by the Court of Appeal, the applicant, who was initially represented by a lawyer, raised the issue of the non-attendance of the witnesses at the trial (see paragraphs 11 and 13 above). In the resumed proceedings, at the hearing held on 30 April 2009 the applicant withdrew the power of attorney given to the lawyer who initially represented him and gave his explicit consent for the hearing to proceed, neither requesting that a lawyer be appointed for him nor an adjournment (see paragraph 15 above). The trial judge informed the applicant of his rights. With the parties ’ consent, the judge read out the records of the witnesses ’ statements at the trial. The applicant neither objected to their admission as evidence nor raised any issue as to the substantive or procedural validity of the statements. Moreover, the applicant did not request that the witnesses be heard at the trial on any particular point flowing from their statements .

29. The Court notes that in his appeal the applicant complained in general terms that all the evidence had been admitted contrary to the Criminal Procedure Act and made a vague reference to a colleague ’ s case (see paragraph 17 above). He neither complained of a violation of his right to a fair trial, nor did he raise the issue concerning his inability to examine witnesses at the trial, even though an alleged violation of defence rights was valid grounds for quashing a defective judgment (see paragraph 20 above). As a consequence, there was no discussion in the Court of Appeal ’ s judgment of the issue whether the admission as evidence of the statements of absent witnesses rendered the criminal proceedings against the applicant unfair (see paragraph 18 above). In particular, the Court of Appeal was not given the opportunity to explain its view on the issue complained of before this Court (see Bahmanzadeh v. the United Kingdom , (dec.), no. 35752/13, § 50, 5 January 2016, and contrast Trampevski v. the former Yugoslav Republic of Macedonia , no. 4570/07 , § 37, 10 July 2012 ).

30. As the Court ’ s case-law bears out (see paragraph 27 above), the mere fact that an applicant has submitted his or her case to the various competent courts does not itself constitute compliance with the requirements of Article 35 § 1 of the Convention. In order to properly exhaust domestic remedies it is not sufficient that a violation of the Convention is “evident” from the facts of the case or applicant ’ s submissions. Rather, the applicant must actually complain (expressly or in substance) about it in a manner which leaves no doubt that the same complaint that was subsequently submitted to the Court had indeed been raised at the domestic level (see Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (dec.), nos. 29426/08 and 29737/08, § 36, 10 December 2013). In the circumstances of the present case, the Court cannot – in the absence of an actual complaint by the applicant about his inability to examine the witnesses at the trial or about the admission of their statements as evidence – accept the applicant ’ s submission that he had exhausted domestic remedies in substance by stating that all the evidence had been admitted contrary to the Criminal Procedure Act and by relying on a separate decision delivered in separate criminal proceedings against a colleague. Furthermore, the applicant did not argue that a complaint before the Court of Appeal related to the inability to examine witnesses would have been devoid of any prospect of success.

31. In view of the above, the Court considers that the applicant failed to raise, even in substance, in his appeal before the domestic courts, the complaint which he has submitted to the Court (see l ’ Association Les Témoins de Jéhovah (dec.), no. 8916/05, 21 Septembe 2010; Mađer v. Croatia , no . 56185/07, §§ 137-139, 21 June 2011; and Merot d.o.o. and Storitve Tir d.o.o. , cited above, § 38). He did not provide the national authorities with the opportunity, which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, of addressing, and thereby preventing or putting right, the particular Convention violation alleged against them (see Gäfgen v. Germany [GC], no. 22978/05, §§ 144-146, ECHR 2010).

32. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must therefore be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 May 2019 .

             Renata Degener AleÅ¡ Pejchal Deputy Registrar President