FIRST SECTION

Application no. 7837/10 Goranč o GAVRILOV against the former Yugoslav Republic of Macedonia lodged on 1 February 2010

STATEMENT OF FACTS

The applicant, Mr Goranč o Gavrilov , is a Macedonian national, who was born in 1966 and lives in Štip . He is represented before the Court by Mr F. Medarski , 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 of the case

The applicant is the owner and manager of a local radio station in Å tip . Between 1998 and 2008 he was also President of the National Association of Radio Broadcasting Companies. In that capacity, he reported to the relevant State authorities that there had been irregularities in the operation of a company, R., a cable TV broadcasting company owned by Mr R.D. The applicant stated that because of that criticism Mr R.D. had threatened on several occasions to kill the applicant. As established in the criminal proceedings described below, in a reported incident of 13 November 2002 Mr R.D. had expressed verbal threats against the applicant. Other alleged incidents, the latest dated 29 December 2007, were not reported to the police.

2. Criminal proceedings against Mr R.D., Mr D.M. and Mr G.S.

On 27 March 2008 the public prosecutor indicted Mr R.D., Mr D.M. and Mr G.S. for attempted murder of the applicant. The accusations concerned an incident on 26 January 2008 in which Mr D.M., a member of the special military forces known as the Wolves, and Mr G.S., allegedly assaulted the applicant with the intention of killing him. Both the accused allegedly wore black masks and used metal clubs to beat the applicant. The applicant sustained head and body injuries. Three of his fingers were broken. In the assault, Mr D.M. allegedly fired a shot, which did not hit the applicant. As stated in the indictment, Mr R.D., wh o had threatened on 29 December 2007 to kill the applicant, had incited Mr D.M. and Mr G.S. to carry out the killing.

The proceedings were conducted before the Štip Court (“the trial court”). At the trial, the court heard oral evidence from the accused and several witnesses, and confronted the applicant with Mr R.D. It also admitted considerable documentary evidence, including several expert reports, lists of temporarily seized objects, detailed lists of calls on mobile phones confiscated from the accused, reports on identity parades set up during the trial, excerpts from several daily newspapers, and other evidence. On 30 April 2008 the trial court delivered a judgment acquitting the accused for lack of evidence. The applicant was instructed to pursue a compensation claim against the accused by means of a separate civil action for damages. In the judgment, the trial court examined the available evidence. It did not give weight to an expert report which stated that textile strands found on one of the metal clubs used in the attack were consistent with fibres from jeans like those confiscated from Mr G.S. It further disregarded an expert report which stated that saliva residue on a cigarette butt found at the scene of the incident immediately after the assault was consistent with blood group A, which was Mr D.M. ’ s blood group. It did this because DNA analysis of the saliva had excluded the possibility that the cigarette butt belonged to Mr D.M. Because of some irregularities in the identity parade held by the police, the court also disregarded the fact that the applicant and two witnesses had identified Mr G.S. as an assailant. Lastly, it had not been confirmed that Mr R.D. had threatened the applicant. The confrontation between them had not supported the applicant ’ s allegations in that respect.

On 29 September 2008 Štip Court of Appeal dismissed an appeal by the public prosecutor and upheld the trial court ’ s judgment. It found that the lower court had established the facts correctly and had provided sufficient reasons for its judgment. Further to the assessment of evidence carried out by the trial court, the Court of Appeal discussed evidence regarding the bullet found at the scene after the incident. Forensic ballistics confirmed that its calibre corresponded to ammunition used by an American-produced gun of a type that had been reported stolen from a military unit in Iraq , in which Mr D.M. had served at one time. That finding, coupled with the fact that the gun from which the bullet had been fired had not been found, had been insufficient, in the court ’ s opinion, to attribute any guilt to Mr D.M. The Court of Appeal concluded that the lower court had given a clear and lawful judgment.

On 9 January 2009 the public prosecutor lodged a request with the Supreme Court for the protection of legality, challenging the lower courts ’ judgments.

On 25 March 2009 the Supreme Court accepted the legality review request and stated that the law had been violated in favour of the accused. Referring to section 408 (2) of the Criminal Proceedings Act (see “Relevant domestic law” below), its judgment did not affect the final judgment. The Supreme Court found that the reasons given in the trial court ’ s judgment had been unclear and contrary to adduced evidence. The lower court had erred on the facts and had assessed the available evidence incorrectly, in particular evidence provided by the applicant and other witnesses who had identified the accused as perpetrators of the crime. It stated that the trial court had established the facts solely on the basis of evidence which was in favour of the defence. Evidence against the accused had been disregarded, with reasoning which lacked any substantiation. The Supreme Court further criticised the way in which the trial court had assessed the expert evidence. It also found that the Court of Appeal had upheld the trial court ’ s judgment, despite the fact that it had been vested with the jurisdiction to ascertain ex officio whether there had been any procedural flaws.

As stated in the decision of the Cons titutional Court of 23 December 2009 (see below), the three judgments (referring to the judgments of the trial court, the Court of Appeal and the Supreme Court) had been served on the applicant on 1 September 2009.

3. Proceedings before the Constitutional Court

On 30 October 2009 the applicant lodged a constitutional appeal with the Constitutional Court seeking protection of freedom of expression, which had allegedly been violated due to the failure of the State to identify and punish those responsible for the incident. Since the Supreme Court ’ s judgment had no bearing on the final judgment acquitting the accused, he alleged that he had also been denied the opportunity to claim compensation from the accused. The applicant reiterated that the incident of 26 January 2008 was connected with his criticism of company R. and was intended to silence him.

On 23 December 2009 the Constitutional Court rejected ( отфрла ) the applicant ’ s appeal. It stated that all three judgments delivered in the criminal proceedings had been duly served on the applicant on 1 September 2009. It found that the criminal courts had been required to establish whether any liability could be attributed to the accused. They had neither adduced any evidence nor had they established the facts in respect of whether the assault had been intended to restrict the applicant ’ s freedom of expression. The intention to commit the crime was of importance for discovering the perpetrators and determining the penalty. Furthermore, the protected object of the alleged crime was the right to life and not freedom of expression. The assault in question had happened at a time and place that could not be directly linked with the applicant ’ s freedom of expression. The Constitutional Court found accordingly that the first- and second-instance courts ’ judgments had not been of any relevance to the applicant ’ s freedom of expression. On the other hand, it had been open to the applicant to claim, as instructed by the criminal courts, monetary compensation in civil proceedings.

It further stated that the Supreme Court had no jurisdiction, in view of the prohibition of reformatio in pejus specified in section 408 (2) of the Criminal Proceedings Act, to remit the case for re-examination or to overturn the lower courts ’ decisions and convict the accused. The State could not therefore be held responsible for failing to punish the perpetrators.

B. Relevant domestic law

Sections 403 and 404 of the Criminal Proceedings Act of 1997 provide that the public prosecutor may lodge a legality review request ( барање за заштита на законитоста ) against final court judgments. The Supreme Court decides on legality review requests.

Under section 406 (1) and (3) of the Act, the Supreme Court is limited to examining any alleged violations raised in a legality review request. If such a request is lodged in favour of the convicted person, the Supreme Court cannot amend the lower court(s) judgment(s) to his or her detriment regarding the legal qualification of the crime and the penalty imposed.

Under section 408 (1), if the Supreme Court accepts the legality review request, it can reach the following judgments: it can overturn the final judgment; it can revoke the first- and second-instance courts ’ judgments or only the second-instance court ’ s judgment and remit the case f or re ‑ examination; or it can merely ackno wledge the violation. Under sub ‑ section 2 of that provision, if a request is lodged against the accused and the court finds the request well-founded, it will acknowledge that there has been a violation of the law. That judgment will not affect the final judgment.

In October 2004 the “accused” specified in section 408 (2) was replaced with “person convicted” (Official Gazette no. 74/2004).

The 2010 Criminal Proceedings Act, whi ch will become operable after 1 December 2013, contains the same provision as section 408 (2) of the 1997 Criminal Proceedings Act, amended in 2004 (section 460 (2)).

COMPLAINTS

The applicant complains that the State did not fulfil its positive and procedural obligations under Article 2 of the Convention, specifically that it failed to take appropriate steps to safeguard his life and to provide an effective investigation of his allegations. The respondent State ’ s legal mechanism for the prevention, suppression and punishment of those responsible was to no avail in his case. He further complains under Article 10 of the Convention in that the State, by failing to punish those responsible, did not fulfil its positive obligation to create conditions for peaceful enjoyment of rights under that provision. In the absence of a criminal conviction, any claim for compensation before civil courts would be illusory. In the latter context he relied on Article 13, taken in conjunction with Articles 2 and 10 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In view of the acknowledgment stated in the Supreme Court ’ s judgment of 25 March 2009 that it would have no bearing on the final judgment acquitting the accused, did the six-month time-limit start running from the date when the applicant became aware of the judgment of the Court of Appeal dated 29 September 2008 or the date of service of the Supreme Court ’ s judgment? In this respect, the parties are invited to provide evidence or comment on the date when the applicant became aware of (or was served with) the Court of Appeal ’ s judgment of 29 September 2008.

2. Having regard to the applicable legislation at the relevant time, did the legality review request offer any prospect of success? Having regard to the fact that the Court of Appeal finally acquitted the accused, can the legality review request, in the present case, be regarded effective in view of the Supreme Court ’ s jurisdiction specified in section 408 of the Criminal Proceedings Act of 1997? The parties are further invited to comment on the legal effects, in general, of a judgment in which the Supreme Court, deciding on a legality review request, acknowledges that the law was violated by the lower courts and states that its judgment would not affect the final judgment. The parties are invited to submit any domestic case-law on the matter.

3. Having regard to the State ’ s positive obligation (see Ciechońska v. Poland , no. 19776/04 , § 66, 14 June 2011) examined through the prism of th e procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 2, as required by Article 13 of the Convention?