Communicated on 27 August 2014

FIRST SECTION

Application no. 27962/10 Ramiz ASANI and Naim ASANI against the former Yugoslav Republic of Macedonia lodged on 6 May 2010

STATEMENT OF FACTS

The applicants, Mr Ramiz Asani (“the first applicant”) and Mr Naim Asani (“the second applicant”), are Macedonian nationals, who were born in 1979 and 1984 respectively and live in Skopje. They currently serve life sentence imposed in the impugned proceedings described below. They are represented before the Court by Mr S. Pavleski, a lawyer practising in Skopje.

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

On 18 May 2006 at 11,45 pm. unknown persons had fired from machine guns on an internet-café in Skopje. As established in the impugned proceedings described below, 4 people were killed and 6 people were seriously injured in the incident.

On 27 February and 23 March 2007 a certain B.H. gave an oral statement before an investigating judge of the Skopje Court of First Instance (“the trial court”). As it transpires from the trial court ’ s judgment (the applicants did not submit a copy of a record regarding the examination of this witness), B.H. stated that he had been the target in the shooting incident owing to his alleged involvement in the killing of the applicants ’ brother, which had happened at the beginning of 2006. He stated that he had received threats that he would be killed. As established in the impugned proceedings, B.H. was present in the internet café at the time of the incident and was shot in the upper leg. He fainted and recovered in a private hospital in Pristine, Kosovo [1] . He submitted no medical evidence in support.

On 4 May 2007 two people who had eye-witnessed the incident of 18 May 2006 gave oral statements before the investigating judge of the trial court and the public prosecutor. They testified as anonymous witnesses ( сведок со прикриен идентитет ) under pseudonyms “Korab” and “Vodno”. The latter witness requested to be examined as an anonymous witness since the applicants had been violent and he feared that his life and the life of his family members could be endangered. From 10 photographs submitted by the Ministry of the Interior, both anonymous witnesses identified the applicants as having fired from machine guns in the incident of 18 May 2006.

On 11 May 2007 another individual gave an oral testimony before the investigating judge and the public prosecutor under pseudonym “Vardar”. He stated that the first applicant had bought a car from a friend M.M., which, as established in the impugned proceedings, was used by the applicants in the incident of 18 May 2006. He also confirmed that the first applicant had told him that he (the first applicant) had taken the actions in the incident in revenge for the killing of his brother.

On 11 May 2007 the investigating judge opened investigation against the applicants and a third person on reasonable suspicion of murder. He also remanded the applicants in prison in custody.

In an indictment of 13 August 2007, the public prosecutor accused the applicants that they had fired from machine guns on the internet-café with the intention to kill B.H. She requested that the trial court summon several witnesses, including inter alia B.H. and the anonymous witnesses.

On a hearing of 21 January 2008, “Vodno” and “Korab” testified before the trial judge. The public prosecutor attended the examination. Both witnesses confirmed their statements given before the investigating judge. As noted in the record of their examination, they requested to be examined as anonymous witnesses due to fear for their life, health or physical integrity. A copy of their statements was communicated to the applicants in order that they put questions in writing through the court. The applicants formulated 7 questions to be put to each witness. On a hearing dated 31 January 2008, the applicants sought that the trial court examine “Vardar” whose identity M.M. had revealed in his testimony given before the trial court. They also requested that the trial judge examine 25 people regarding the applicants ’ whereabouts when the crime was committed. The trial court examined 3 proposed witnesses who stated that at the time the applicants had been in a local café bar.

On 25 February 2008 “Vodno” and “Korab” replied to the applicants ’ questions at a hearing attended by the trial judge and the public prosecutor. A copy of the court record was submitted to the applicants.

On 1 April 2008 the trial judge examined, in the presence of the parties to the proceedings, F.S., who, as established by the trial judge, was the same anonymous witness who had testified before the investigating judge under pseudonym “Vardar”. F.S. denied that he had testified as anonymous witness. He stated that other people (not the applicants) had bought the car from M.M. which had been used in the incident. He had been allegedly beaten by police in order to confess that the applicants had bought the car.

On the same hearing, the trial judge read out the statement of B.H. given before the investigating judge. He did this way since the authorities could not locate B.H. That was established on the basis of a notification by the Ministry of the Interior of 9 January 2008 according to which B.H. had fled and there was a request ( потерница ) for him.

During the trial, the applicants unsuccessfully requested that the trial judge did not admit in evidence the statements of the anonymous witnesses alleging that they were unlawfully obtained. The same concerned the written statement of B.H., who, contrary to the findings of the trial court, was available. In this connection they referred to “incidents” that had happened during the elections of 1 June 2008 in which B.H. was identified as a participant and later detained in that respect.

On 23 June 2008 the trial court delivered a judgment in which it found the applicants guilty of murder and sentenced them to life imprisonment. As indicated in the judgment, the trial court admitted inter alia the following evidence: ballistic, post mortem and other expert reports; oral statements of the experts who had carried out the expert examinations; testimony of 7 victims (who were in the internet café at the time of shooting) and witnesses proposed by the defence (see above); written statements of the three anonymous witnesses given in the pre-trial proceedings, as well as the written statement of B.H.

The victims described the circumstances regarding the incident of 15 May 2006. None of them had seen the assailants. That the applicants had been at the scene when the incident happened, the trial court established on the basis of the statements of the anonymous witnesses, which it regarded consistent and credible. In this connection the court also relied on the statement of F.S. given in the pre-trial proceedings as anonymous witness (under pseudonym “Vardar”). It did not give weight to his statement at the trial finding that it had been given under duress and threat that he might be killed. In this connection it admitted in evidence a report from the Ministry of the Interior dated 24 January 2008 according to which F.S. had been visited several times by unknown persons who had been threatening him about the testimony made in the pre-trial proceedings. The trial court relied on the statement of B.H. given in the pre-trial proceedings in order to establish the applicants ’ motive to commit the crime. The court did not give weight to oral evidence produced by the witnesses proposed by the defence finding that they were unreliable and aimed to enable the accused avoid criminal responsibility. For this reason it considered irrelevant to examine the remaining witnesses proposed by the defence. The applicants ’ testimony was assessed as self-serving. The court also refused the applicants ’ requests for an additional expert examination regarding the trajectory of the bullets, as well as to admit evidence regarding the intensity of the street light at the scene at the relevant time (the applicants alleged that the street light had been too low to allow the anonymous witnesses to see the assailants).

On public hearings held on 10 October 2008 and 25 September 2009 respectively the Skopje Court of Appeal and the Supreme Court upheld the lower courts ’ judgments. They dismissed appeals in which the applicants complained that their conviction could not be based solely on the statements of the anonymous witnesses, which were unlawfully obtained; that the trial court had not examined B.H. at the trial notwithstanding that he had been available for examination; and that the trial court had failed to admit evidence proposed by the defence. The courts held that the applicants ’ conviction was not based solely on evidence of the anonymous witnesses. In this connection they found that the trial court had admitted other evidence, documentary and verbal. As regards evidence produced by B.H., the courts held that the trial court had attempted to secure his attendance at the trial, but B.H. had been unavailable for examination, as described in the official information submitted by the Ministry of the Interior. The courts confirmed that B.H. had clarified the applicants ’ motive to commit the crime. The applicants were served with the judgment of the Supreme Court on 4 January 2010.

On 31 March 2010 the public prosecutor informed the applicants that there were no grounds to lodge a request for the protection of legality.

COMPLAINTS

The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they were convicted on the basis of unlawfully obtained evidence, namely evidence of the anonymous witnesses, whom they were not given the opportunity to examine. Similarly, they were unable to confront with B.H., whose statement given in the pre-trial proceedings in their absence served as a basis for their conviction. Lastly, they complain about the domestic courts ’ refusal to examine all the witnesses proposed by the defence; to order an additional expert examination regarding the trajectory of the bullets; and (c) to admit evidence regarding the alleged insufficient street light at the relevant time and place.

QUESTIONS TO THE PARTIES

Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, were the applicants ’ defence rights respected in view of the domestic courts ’ refusal to admit evidence proposed by the applicants? W as the non-examination of B.H. at the trial and the admission of his statement given in the pre-trial proceedings compatible with this Article? Were the applicants able to examine the anonymous witnesses in a manner which did not restrict their defence rights to an extent incompatible with Article 6 of the Convention?

[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.