FIRST SECTION

Application no. 27936/10 Zoran ARSOV against the former Yugoslav Republic of Macedonia lodged on 11 May 2010

STATEMENT OF FACTS

The applicant, Mr Zoran Arsov , is a Macedonian national, who was born in 1983 and lives in Probištip . He is represented before the Court by Mr P. Edrovski , a lawyer practising in Kočani .

The facts of the case, as submitted by the applicant and as established in the criminal proceedings against him (see below) may be summarised as follows.

On an unspecified date in January 2006 the applicant purchased 46,3 grams of marijuana.

On 10 February 2006 the applicant gave 4,6 grams of marijuana to his friend N.J. and on 11 February 2006 the applicant enabled his friends I.K. and K.J. to use his marijuana.

On 12 and 13 February 2006 the police searched N.J. and the applicant ’ s home, respectively.

On 13 February 2006 the Forensic Department ( Оддел за криминалистичка техника ) of the Ministry of Interior (“the Ministry”) drew up two expert reports ( вештачење ) according to which the examined samples seized during the searches of N.J. and the applicant ’ s home were marijuana.

On 14 February 2006 the Forensic Department made an analysis of the urine samples of I.K. and K.J. and detected traces of marijuana components.

On 29 May 2006 the applicant was indicted for trafficking in drugs (“the first offence”) as well as on the account of enabling drug consumption (“the second offence”).

On 19 March 2007 the Štip Court of First Instance (“the trial court”) found the applicant guilty on both counts and convicted him to a single sentence of one year ’ s imprisonment.

On 15 May 2007 the applicant appealed before the Štip Court of Appeal (“the appellate court”) challenging the findings of the expert reports and their admissibility given the fact that they had been drawn up by the Ministry.

On 28 September 2007 the appellate court remitted the case since inter alia the expert reports had been drawn up by the Ministry on its own motion and not upon a court order. Consequently, the trial court ’ s judgment was based on inadmissible evidence and in violation of Article 6 of the Convention.

On 13 May 2008, apparently upon the trial court ’ s order, a new expert report was drawn up by the Ministry ’ s Forensic Department. It appears that this new report concerned only the marijuana found in the applicant ’ s home.

On 15 October 2008 the trial court found the applicant guilty in respect of the first offence and acquitted him in respect of the second offence.

On 14 January 2009 the appellate court remitted the case to the trial court for fresh consideration.

On 11 March 2009, as stated by the applicant, the trial court dismissed his request for an independent expert examination of the marijuana. On the same date, the trial court found the applicant guilty for the first offence which subsumed the applicant ’ s acts that had previously been qualified under the second offence and sentenced him to a suspended prison term. In its judgment, the trial court relied entirely on the expert reports of 13 and 14 February 2006. It did not make any reference to the expert report of 13 May 2008.

The applicant and the public prosecutor appealed. The applicant reiterated his earlier arguments regarding the admissibility of the “findings and analyses drawn up by the Ministry”. He added that no expert report could be drawn up by the Ministry regardless whether the trial court ordered it. He stated that the marijuana ’ s quality was decisive for the criminal charges against him since it was of a low quality and could not be therefore classified as a drug. The public prosecutor also appealed and asked for a prison sentence.

On 7 September 2009 the appellate court dismissed the applicant ’ s appeal, upheld the public prosecutor ’ s appeal and convicted the applicant to one year ’ s imprisonment. The appellate court stated inter alia that the expert report had been drawn up upon the trial court ’ s order.

On 18 November 2009 the Supreme Court dismissed the applicant ’ s request for extraordinary review of a final judgment, including his objection about the expert examination. It stated that the expert report of 13 May 2008 had been lawfully obtained since it had been drawn up by the Ministry, which had been competent to carry out that examination. Furthermore, the expert report had been drawn up upon the trial court ’ s order. It further considered that the applicant had misinterpreted the Court ’ s case-law ( Stoimenov v. the former Yugoslav Republic of Macedonia , no. 17995/02, 5 April 2007) and an opinion that the Supreme Court had adopted in this regard. The applicant was served with the judgment on 3 February 2010.

COMPLAINT

The applicant complains under Article 6 of the Convention in that he was convicted on the basis of inadmissible evidence (the expert reports) drawn up by the Ministry, the very same body that initiated the proceedings against him.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected when the domestic courts dismissed the applicant ’ s request for independent examination and admitted in evidence the expert reports drawn up by the Ministry of Interior, which were used to initiate the criminal proceedings and which in the earlier stage were found to be inadmissible (see Stoimenov v. the former Yugoslav Republic of Macedonia no. 17995/02, 5 April 2007)?