FIRST SECTION

CASE OF SMIÄŒKOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

( Application no. 15477/14 )

JUDGMENT

STRASBOURG

5 July 2018

This judgment is final but it may be subject to editorial revision.

In the case of Smičkovski v. the former Yugoslav Republic of Macedonia ,

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

Aleš Pejchal, President, Armen Harutyunyan, Jovan Ilievski, judges, and Renata Degener , Deputy Section Registrar ,

Having deliberated in private on 12 June 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 15477/14) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental F reedoms (“the Convention”) by Mr Damjan Smi č kovski (“the applicant”), on 18 February 2014 .

2 . The applicant was represented by Mr D. Slavkovski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov , later succeeded by Ms D. Djonova.

3 . The applicant complained, under Article 6 §§ 1 and 3 (d) of the Convention, of a breach of the principle of equality of arms and of the fact that he had been unable to question any of the proposed witnesses on his behalf or to obtain further expert report s on the matter of the accusations against him.

4 . On 24 August 2016 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1993 and lives in Skopje .

6 . At a b ou t 1.00 a.m. o n 11 February 2012 a physical altercation took place at a night club in Skopje involving the applicant, a certain R. , and several other young men. As a consequence, R. suffered injuries to his nose and face and was taken to hospital by his friends. He was released later that same night.

7 . The police w ere called t o the s cene and drew up an official “ note ” ( службена белешка ) in which the event was described as a fight involving the applicant, R. and a certain P.

8 . On 11 June 2012 an investigati ng judge ( истражен судија ) opened a n investigation against the applicant, w it h oral evidence being provided by the applicant, R. , a nd witnesses J . and K . , the latter being friends of R . ’ s . In their statements they all maintain ed that on the evening in question R. had been attacked by the applicant .

9 . In the course of the investigation , on 6 September 2012 the applicant gave an oral statement and proposed that an eyewitness, P. (see paragraph 7 above) , be question ed as a witness on his behalf. In his statement he claimed that during the initial provocations by R. and his friends , P. had been in the toilet but that toward s the end of the altercation P. had been present and had witnessed the event and had even grab bed hold (“ да придржи ”) of one of the witnesses. The applicant maintained that he was the one who had been attacked by R. , J. and K. and tha t he had acted in self-defence.

10 . The investigati ng judge commissioned an expert report regarding the nature and intensity of the injuries suffered by R. , which was compiled on 26 September 2012 by G.A., a traumatology s urgeon ( специјалист хирург ‑ трауматолог ). According to the expert report, the injuries suffered by R. fell to be classified in the domestic law category of “grievous bodily injury” ( тешка телесна повреда ) .

11 . On 4 October 2012, the applicant was indicted before Skopje Court of First Instance (“ Основен с уд Скопје I ” – “the trial court” ) for causing “ grievous bodily injury ”. The prosecution proposed that R. and two witnesses , J. and K. , be questioned . The expert report (see paragraph 10 above) was also adduced as evidence.

12 . The applicant lodged an objection against the indictment on 22 November 2012. In his objection he reiterated his request t hat the eyewitness P. be questioned, a s well a s two more witnesses, M. K. and B . It was proposed that M.K. testify as an eyewitness to the event and B. testify t o the fact that the applicant had come under attack by the same group on a previous occasion , which B. had prevented .

13 . The objection was dismissed by a panel of Skopje Court of First Instance on 29 November 2012.

14 . At a public hearing before the trial court which took place on 12 February 201 3 , evidence was given by the applicant, and by R. , J. and K. In his statement , witness J. said that during the altercation, P. ( the witness proposed by the applicant ) had launched himself (“ му се фрли ”) at K., the other wit ness.

15 . At the same hearing t he defence reiterated its request that P. and M. K. be questioned as eyewitnesses to the event. The trial court refused the request on the grounds that neither P. nor M. K . had been an eyewitness to the event. It also poin ted out that M.K. had n ot been mentioned before in the other witnesses ’ statements or at any time during the proceedings. At the same hearing, the trial court accepted a request from the defence to examine the official police note of the event (see paragraph 7 above) .

16 . At the subsequent public hearing , which took place on 19 March 201 3 , the expert G.A. gave oral evidence. He was cross-examined by the defence counsel with regard to his competence to c l a ssify injuries. At this hearing, the same evidentiary requests were reiterated by the defence regarding P. and M . K. It was further proposed that another witness, M.R. , be questione d and that a fresh expert examination be commissioned by the trial court because the present one was inconclusive and had been compiled by a traumatology expert. In this regard, it was submitted that due to the nature of the injuries in question, an expert opinion by an ENT (ear, nose and throat) specialist should be commissioned. It was also requested that a neuro -psychiatric specialist prepare an expert opinion in respect of the applicant ’ s psych ological state on the evening of the altercation in order to establish his mental capacity at the time of the events in question .

17 . At the same hearing the trial court refused all request s by the defence , stating:

“ The defence ’ s request to question witnesses M.R., P. and M.K. is refused for the same reasons as stated i n the minutes of 12 February 201 3 . S i n ce there ha s already been an expert report commissioned in the case, fur t he r request s for the commissioning of additional expert repo r ts are refused, and the court is already in po s ses sion of sufficient evidence to establish the facts in the case . ”

18 . Closing arguments were also delivered at that hearing , in which the applicant complained that all the eviden tiary testimony proposed on his behalf had been re ject ed by the trial court and he had therefore been prevented from proving his case .

19 . On the same day the trial court delivered a judgment , finding the applicant guilty and sentenc ing him to a suspended prison sentence of one year. The trial court based its findings on the expert report, the statement given by R. and the statements given by the two witnesses J. and K. Although the trial court in its reasoning accepted that there had been a third person, the applicant ’ s friend, involved in the altercation , it considered that the defence ’ s arguments contradicted the other evidence put before it sufficiently , thereby showing that the applicant was guilty of the offence he had been charged with .

20 . The applicant submitted two appeal s , one through a lawyer on 17 April 2013 and another personally on 22 April 2013 . In the appeals it was stated that none of the witnesses proposed by the defence had been questioned by the trial court and none of the expert opinion requests had been accepted, effectively rendering the taking of evidence in the case completely one-sided. It was further stated in the appeals that the commissioned expert opinion was inconclusive with regard to the type of injury suffered by R. , meaning that the trial court could therefore not ascertain whether that type of injury contained the elements of “grievous bodily injury” .

21 . On 11 July 2013 t he Skopje Court of Appeal (“the appellate court”) held a public hearing. At the hearing a representative of the H igh P rosecutor ’ s O ffice ( Вишо ј авно о бивнителство ) proposed that the appeals should be a llow ed and the case remitted because of omissions made by the trial court in respect of the expert report .

22 . On the same day the appellate court dismissed the appeals and confirmed the trial cour t ’ s judgment in its entirety. The relevant parts of the judgment read as follows:

“In the appeals it is stated that the defence ’ s request to question P. as a witness was wrongfully rejected and that it could have significantly contributed to different conclusions with regard to the facts ... [T]his court finds that th e request was rightfully rejected by the lower court because the witness P. was not an eyewitness to the event in question, which is supported by the statement of the accused given at the investigation stage ...

... from the statement [of R. ] ... which finds support in the statements given by J. and K. , it can be concluded that on the evening in question the accused insulted R. , the accused then hit R. over the hea d with a glass. ... R. fell down, los ing consci ousness and K. ran to his aid, but was hinder ed by a friend of the accused ... ”

23 . This judgment was served on the applicant ’ s law yer on 3 September 2013 .

II. RELEVANT DOMESTIC LAW

24 . According to s ection 237 of the Criminal Proceedings Act (consolidated text) ( Закон за кривичната постапка (пречистен текст)), Official Gazette no. 15/2005) the court will hear evidence from witnesses wh o are likely to provide information regarding the offence in question.

25 . P aragraph 1 of section 314 stipulate s that after the accused has give n oral evidence, the court will examine the remainder of the evidence. Under paragraph 2 the establishing of the facts includes all facts which are considered of significance by the court .

26 . In section 131 of the Criminal Code ( Кривичен Законик , Official Gazette No. 37/96 with subsequent amendments) the causing of grievous bodily injury is punishable by i m pri s onment for any t h ing between six months and five years.

T HE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

27 . The applicant complained that the criminal proceedings against him had been unfair on account of hi s having been deprived of the opportunity to effectively present his defence . In particular, he contended that he had not been able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, and that the domestic courts had refused his requests to commission additional expert reports. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads 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 conditio ns as witnesses against him ... “

A. Admissibility

28 . The Court notes that th e complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ arguments

29 . The applicant argued that the criminal proceedings against him had been unfair because the trial court had based its decision s o le ly on the evidence adduced by the prosecution. At the same time his request for witnesses to be examined and for two additional expert report s to be commissioned had been dismissed. There had been no reason not to question the witnesses P., M. K. , B. and M.R., who could have provided relevant information concerning the case. He therefore considered that the proceedings against him had fallen short of the requirements of a fair trial.

30 . The Government submitted that P. had not been an eyewitness to the event , which was evident from the statement of the applicant given during the investigation on 6 September 2012 . With respect to M. K. , the Government stated that since he had not been mentioned until the hearing of 19 March 2013, he had likewise not been an eyewitness to the altercation. In respect of the trial court ’ s refusal to commission any new expert reports the Government stated that the nature of the injury suffered by R. had been sufficiently established by the expert report already commissioned. The expert who drew up the report possessed the necessary licence and had had sufficient evidence to establish the type of injury suffered by R .

2. The Court ’ s assessment

(a) General principles

31 . Since the requirements of Article 6 § 3 are to be seen as s p ec i fi c aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will in this case examine the complaints under Article 6 § § 1 and 3 ( d ) taken together (see, for instance, Gregačević v. Croatia , no. 58331/09 , § 52, 10 July 2012).

32 . In respect of the issue of the domestic courts ’ refusal to hear witnesses on behalf of the defence , the general principles are summari s ed in the case s of Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V and Polyakov v. Russia , no. 77018/01, § 31, 29 January 2009 . In particular, in this respect the Court will determine:

(a) whether the applicant ’ s request was sufficiently reasoned and relevant to the subject matter of the accusation and could arguably have strengthened the defence position or even led to the applicant ’ s acquittal; and

(b) whether the trial court, by not securing the attendance of a certain witness to testify on behalf of the applicant, breached h is right under Article 6 § 3 (d).

33 . In this r egard the Court would also reiterate that its task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among many others, Topić v. Croatia , no. 51355/10 , § 41, 10 October 2013 ). In particular, Article 6 § 3 (d) leaves it to the domestic courts to assess whether it is appropriate to call witnesses (see, for example, Vidal v. Belgium , 22 April 1992, § 33, Series A no. 235 ‑ B).

(b) Application of these principles in the present case

34 . T he Court notes that from the very initial stages of the proceedings the applicant argue d that on the evening in question he had been attacked by R. , J. and K. and had acted in self-defence. He also reiterated throughout the proceedings that the witness P. had been present during at least a part of the altercation, and that he had even grabbed hold of one of R. ’ s friends (see paragraph 9 above). With respect t o witnesses M.K. and M.R., the Court notes that although they were propos ed as eyewitnesses by the applicant only later on in the proceedings, the applicant had insisted, from his first statement and throughout the proceedings , that P. had been present during at least a p ar t of the incid ent.

35 . In this respect the Court o bserv es that from the police note , which w as part of the evidence presented before the domestic courts, it can be seen that P. was noted as a participant in the altercation (see paragraph 7 above). Furthermore, according to the statement given by the witness J. , which the trial court found reliable, P. was present at the event (see paragraph 1 4 above) . Th e fact that a friend of the applicant was present at the altercation was also accepted by both the trial and the appeal court s (see paragraph s 19 and 2 2 above) .

36 . In view of the fact that it was crucial to the applicant ’ s defence position to establish that he had been attacked by R. and his friends instead of the other way around (see paragraph 9 above), and in the light of the other evidence as noted above, the request to question P. as a witness does not appear vexatious or misplaced. Moreover, the questioning of this witness was requested in order to refute the statements of the witnesses for the prosecution ( see Topić , cited above, § 45 , and compare Borisova v. Bulgaria , no. 56891/00, § 47, 21 December 2006). Therefore, the Court finds there is no doubt that the request to question P. as a witness was sufficiently reasoned, relevant to the subject-matter of the accusation , and could arguably have strengthened the defence position or even led to the applicant ’ s acquittal (see paragraph 32 above) .

37 . However, the applicant ’ s request to question witnesses on his behalf, including P., was dismissed on the grounds that none of these witnesses had been eyewitnesses to the event . The trial court also considered that all the relevant facts had been sufficiently established (see paragraph 17 above ) . In this respect the Court notes that such findings clearly contradict the statement the applicant g a ve before the investigati ng judge (see paragraph 9 above) as well as the statement given by J. In particular, the applicant and J. both stated that P. had been present during at least p ar t of the altercation (see paragraphs 9 and 14 above). The same was also evident from the police report examined during the trial (see paragraphs 7 and 15 above). It therefore follows that the domestic courts ’ reasons for refusing to call P. as a witness on the applicant ’ s behalf are manifestly contrary to the available facts of the case. Accordingly, the reasoning of the domestic courts for dismissing the applicant ’ s request cannot in itself be accepted as relevant and valid ( compare Gregačević , § 56, and Polyakov , § 35, cited above) .

38 . The Court therefore considers that by dismissing all requests by the defence , and in particular the request to question P. as a witness, without providing relevant reasons, whilst at the same time accepting all the prosecution arguments and evidence , the trial court created an unfair advantage in favour of the prosecution and consequently deprived the applicant of any practical opportunity to effectively challenge the charges against him (compare Borisova, § 48 and Topić, cited above, § 48) .

39 . Th is is sufficient for the Court to find that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

40 . In these circumstances, it is not necessary to examine the other complaints under Article 6 of the Convention relating to the fairness of the proceedings before the domestic courts (see, for instance, Karadağ v. Turkey , no. 12976/05, § 56, 29 June 2010 ).

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

41 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

42 . The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. He additionally claimed 200 euros in respect of pecuniary damage , this being the amount that he had been obliged to pay R. on account of pecuniary damage , along with court fees.

43 . The Government considered the applicant ’ s claim unfounded and unsubstantiated.

44 . As regards the applicant ’ s claim for pecuniary damage, the Court does not discern any causal link between the violations found and the pecuniary damage alleged. It therefore rejects th e claim. On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Therefore, the Court awards the applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

45 . The applicant also claimed EUR 500 for the costs and expenses incurred before the domestic courts and EUR 1000 for those incurred before the Court.

46 . The Government considered the applicant ’ s claim unsubstantiated.

47 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France , no. 58148/00, § 64, ECHR 2004 ‑ IV) . In the present case, having regard to the available material, the Court finds that the applicant substantiated his claim for costs and expenses of the domestic proceedings in the amount of EUR 250 . Additionally , the Court considers it rea sonable to award the sum of EUR 500 for the proceedings before it. The Court therefore awards the amount of EUR 750, plus any tax that may be chargeable, covering costs under all heads.

C. Default interest

48 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant, within three months , the following amounts, to be converted into Macedonian Denar s at the rate applicable at the date of settlement:

(i) EUR 2,400 ( two thousand four hundred euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 750 ( seven hundred and fifty euros), plus any tax that may b e chargeable, in respect of costs and expenses ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 5 July 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Renata Degener AleÅ¡ Pejchal Deputy Registrar President