Communicated on 7 November 2016

FIRST SECTION

Application no. 46176/14 Zlaten SIMOVSKI against the former Yugoslav Republic of Macedonia lodged on 17 June 2014

STATEMENT OF FACTS

The applicant, Mr Zlaten Simovski , is a Macedonian national who was born in 1954 and lives in Skopje. He is represented before the Court by Mr I. Spirovski , a lawyer practising in Skopje.

A. The circumstances of the case

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

1. Background

The applicant is a collector of antique coins and has been a member of the Skopje numismatic society “ Paionon ” since 1993. Until 2005 he was running an antiques shop in Skopje.

In 2008 the applicant requested that the Museum of the City of Skopje proceed with the valuation of his antique coin collection comprised of some eight-hundred pieces.

2. Search of the applicant ’ s home

On 23 June 2010 an investigating judge of the Skopje Court of First Instance ( Основен суд Скопје – “the trial court”) issued a warrant to search the applicant ’ s home. The warrant was issued at the request of the Ministry of the Interior on grounds of reasonable suspicion that the applicant had committed the following criminal offences: criminal conspiracy, bribery, damage or destruction of cultural heritage, appropriation of cultural heritage and exporting cultural heritage abroad.

The warrant stated that it was probable that in the course of the search of the applicant ’ s home, evidence related to the criminal offences specified above or objects relevant to the criminal proceedings would be uncovered.

The search was conducted on 24 June 2010 in the presence of the applicant and one witness. They both signed the search record without any objections. No reasons were given in the search record for the absence of another witness, as required under Article 216 §§ 3 and 4 of the Code of Criminal Procedure ( Закон за кривичната постапка , Official Gazette, nos. 15/2005).

As a result of the search, the police seized a mobile phone, a computer, a digging tool, photographs of coins, several old coins, three metal boxes containing a coin collection, a request for valuation of the coin collection and a suitcase with documents in Turkish and Greek, which belonged to the applicant ’ s father, who is a historian.

On the same day a document was issued to the applicant certifying the temporary seizure of the objects found during the search of his home, including some additional objects that had not been noted in the search record.

3. Criminal proceedings against the applicant

On 26 June 2010 the investigating judge heard the applicant in the presence of his lawyer. The applicant was informed that he was being investigated for criminal conspiracy ( злосторничко здружување – Article 394 § 2 of the Criminal Code) and withholding archaeological artefacts ( прикривање – Article 261 § 3 read in conjunction with Article 45 of the Criminal Code). On that occasion the applicant learned that investigative measures had been taken against several individuals for the illegal trade in archaeological artefacts.

All the objects seized during the search of the defendants ’ homes had been submitted to the Bureau for the Protection of Cultural Heritage (“the Bureau” – Управа за заштита на културното наследство ) , part of the Ministry of Culture, for identification, classification (period dating) and examination of their authenticity. For this purpose several documents entitled “expert identification” and one document entitled “draft opinion” had been prepared by experts (museum curators, inspectors employed with the Bureau and academics).

On 20 September 2010 the applicant, together with twenty-two other individuals, was indicted before the Skopje Court of First Instance on charges of criminal conspiracy and withholding archaeological artefacts. It was alleged that in the period between 2007 and 2010, he had been part of a criminal group that was engaged in illegal digging for, and withholding and trading of, archaeological artefacts, which were “objects under temporary protection” ( добра под привремена заштита ) and constituted cultural heritage.

The applicant alleged that the objects had been acquired legally and some of them were part of the family inheritance. Parts of his coin collection had been acquired in the period around 2001 from third parties. Although the applicant had initiated the procedure for having his coin collection valued, the process had not been completed. He further alleged that before the Protection of Cultural Heritage Act of 2004 ( Закон за заштита на културното наследство , Official Gazette nos. 20/2004 and 115/07) there had been no legal impediments to collecting antiquities.

At a hearing held on 29 March 2011 one of the defendants ’ lawyers challenged the lawfulness of the search of the defendants ’ homes (including the applicant ’ s home) on the grounds that it had been carried out in the presence of only one witness, contrary to domestic law requirements. His objection was supported by the other defendants.

At a hearing held on 17 May 2011 the trial court stated that owing to formal deficiencies in the search records of the defendants ’ homes, they would not be taken into account by the court as evidence. However, the trial court dismissed a request lodged by the defence seeking the exclusion from the case file of all evidence originating from the search of the defendants ’ homes (namely, all objects seized and the expert identification of those objects). The trial court stated that although the search records were formally deficient, the search of the defendants ’ homes itself had been lawful. It based its decision on the following factors: the search warrant had been issued by an investigating judge; the warrant had been presented to the defendants; the search had been carried out in the presence of the defendants; no objections had been raised by the witnesses and the defendants; and it had not been disputed that the objects uncovered during the search belonged to the defendants. It relied on the Court ’ s case-law ( Schenk v. Switzerland , no.10862/84, 12 July 1988, Series A no. 140, and Khan v. the United Kingdom , no. 35394/97, ECHR 2000 ‑ V) and concluded that allowing such evidence would not render the trial unfair.

At hearings held between May and June 2011, four experts who had participated in the identification of the objects were examined in the presence of the applicant and his lawyer.

On 21 October 2011 the trial court gave judgment – it ran to 220 pages – in which it found the applicant and the other defendants guilty. The applicant was convicted of criminal conspiracy under Article 394 § 2 and of withholding illegally acquired artefacts under Article 261 § 3 taken in conjunction with Article 45 of the Criminal Code. He was sentenced to a single prison sentence of three years and six months. The trial court also ordered confiscation of the artefacts uncovered during the search of the applicant ’ s home as objects acquired through crime under Article 100-a of the Criminal Code.

The trial court established that between 2007 and 2010 the applicant had been part of a criminal group making illegal discoveries and trading with archaeological artefacts. He had exchanged some valuable objects of cultural heritage with another defendant in 2009 and he was withholding illegally acquired artefacts in his home. The trial court relied on witness statements (officials employed in the National Conservation Centre and other relevant institutions) to determine the statutory framework for possession of archaeological artefacts and objects of cultural heritage, as provided for by the Protection of Cultural Heritage Act. It also relied on telephone surveillance records as evidence that the applicant had been involved in the illegal trade in artefacts.

The trial court made an extensive and detailed analysis of the statements given by the experts at the trial. Although it observed that there were some inconsistencies, it accepted the written reports of the experts as relevant and conclusive evidence, given that the methodology used was in line with professional standards, as confirmed by other witnesses (including a witness of the defence) examined at the trial. Moreover, it concluded that a chemical analysis of the objects would be inconclusive in the absence of information regarding the soil and other geographical elements determining the location where the objects had been excavated, as confirmed by several scientific institutions in the country.

The applicant appealed against the first-instance judgment. He complained, inter alia , that the conviction was based on evidence collected during the unlawful search of his home on 24 June 2010, in violation of his right to privacy and protection of home.

On 18 June 2012 the Skopje Court of Appeal ( Апелационен суд Скопје ) held a public session in the presence of the applicant and his lawyer. It dismissed the appeals of all the defendants and upheld the first-instance judgment. Having examined all of the complaints raised by the applicant and the other defendants, the second-instance court upheld the decisions and the reasoning of the first-instance court.

The applicant lodged a request with the Supreme Court for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) , reiterating the complaints he had made on appeal before the second-instance court.

On 28 November 2013 the Supreme Court upheld the facts established and the reasoning put forward by the lower courts, and dismissed all of the defendants ’ requests, including the applicant ’ s. The applicant ’ s representative received a copy of that judgment on 29 January 2014.

On two occasions the applicant unsuccessfully sought the return of some of the seized objects which were not included in the criminal proceedings against him.

B. Relevant domestic law

Article 216 § 3 of the Code of Criminal Procedure ( Закон за кривичната постапка , Official Gazette nos. 15/2005) provides that two adults shall attend as witnesses any search of a home or a person.

Article 216 § 4 provides that a search can be carried out in the absence of witnesses if their attendance cannot be secured immediately and there is a risk of delay. The search record must state the reasons for carrying out the search in the absence of witnesses.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the search of his home on 24 June 2010 was unlawful because there was only one witness present and no reasons were given for the absence of the second witness, contrary to the requirements of the domestic law. He further complains that the interference at issue was disproportionate, given that objects unrelated to the investigation were seized from his home.

2. The applicant also complains under Article 6 § 1 of the Convention that his conviction was based on unlawfully obtained evidence collected during the search of his home.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all domestic remedies, as required by Article 35 § 1 of the Convention, in respect of his complaint under Article 8 of the Convention?

2. Has there been a violation of the applicant ’ s right to respect for his home, contrary to Article 8 of the Convention, on account of the search of his home carried out on 24 June 2010? In particular, was the search of the applicant ’ s home “in accordance with the law” and “necessary” in terms of Article 8 § 2 of the Convention? The Government are invited to comment on the fact that the search was carried out in the presence of only one witness, notwithstanding the statutory requirement that it should be attended by two witnesses. They are also invited to comment on the fact that personal items belonging to the applicant ’ s parents, unrelated to the investigation against him, were seized from his home .

3. Did the use of evidence obtained as a result of the search of the applicant ’ s home in the criminal proceedings against him run counter to the requirements of fairness under Article 6 § 1 of the Convention?