FIRST SECTION

Application no. 59974/08 Epaminonda EFTIMOV against the former Yugoslav Republic of Macedonia lodged on 5 December 2008

STATEMENT OF FACTS

The applicant, Mr Epaminonda Eftimov , is a Macedonian national, who was born in 1950 and lives in Strumica . He is represented before the Court by Ms P. Gičeva-Petkova , a lawyer practising in Skopje .

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

1. Background of the case

The applicant is a surgeon in Strumica Hospital (“the hospital”).

On 8 June 1997 the applicant treated Z.R. ’ s broken and wounded arm. In the next days, Z.R. complained about pain in the arm. The applicant, together with two other doctors and other hospital staff, applied various treatments and referred Z.R. to Skopje Clinic.

On 11 June 1997 Z.R. was hospitalised at Skopje Clinic. It was discovered that he had a serious bacterial infection and consequently, his right palm was amputated on 19 June 1997.

2. Criminal proceedings against the applicant

On 25 September 1997 an investigating judge of Strumica Court of First Instance (“the trial court”) opened investigation against the applicant on account of aggravated medical malpractice ( тешки дела против здравјето на луѓето ). On 19 April 2000 the public prosecutor lodged an indictment against the applicant.

With decisions of 10 July 2001 and 13 December 2004 the trial court acquitted the applicant. Those decisions were quashed by the Å tip Court of Appeal on 30 January 2002 and 9 March 2005, respectively.

On 13 September 2006 the trial court again acquitted the applicant and on 13 December 2006 the Štip Court of Appeal, after having them re-qualified, dismissed the charges against the applicant ( се одбива обвинението ) since it found that the prosecution had become time-barred.

On 21 March 2007 the Supreme Court upheld a request for the protection of legality submitted by the public prosecutor and remitted the case to the Å tip Court of Appeal.

On 8 October 2007 the Å tip Court of Appeal again dismissed charges against the applicant since the prosecution had become time-barred. The applicant and the public prosecutor appealed before the Supreme Court.

On 26 March 2008 the Supreme Court held a session only in the presence of the public prosecutor. After it had heard the public prosecutor ’ s oral pleadings, the Supreme Court overturned the lower court ’ s judgment and convicted the applicant to one year ’ s imprisonment. The applicant ’ s representative was served with the Supreme Court ’ s judgment on 19 June 2008.

On 6 October 2009 the trial court replaced the prison sentence with a conditional release. This decision became final on 14 October 2009.

3. Relevant domestic law

Under section 361 (1) and (3) of the Criminal Proceedings Act (“the Act”) ( Закон за кривична постапка ), the chairman of the adjudicating panel of the Court of Appeal will appoint a judge rapporteur . The latter, in cases involving offences automatically subject to prosecution by the State, will forward the case file to the public prosecutor, who will examine and return it without delay. After receiving the case file, the chairman will fix a date for the session ( седница ) of the adjudicating panel. The public prosecutor will be notified thereof.

Section 362 (1) and (3) of the Act provides for notification of the date of the second-instance court ’ s session to be given, inter alia , to the defendant and his lawyer if they so request. Such notification may be given even if there is no such a request, if the attendance would contribute to establishing the facts. The second-instance court may seek additional explanations from the parties attending the session. Parties can propose that some documents from the case-file are read or to elaborate on their arguments submitted earlier

Section 381 of the Act foresees the special circumstances under which a second-instance judgment may be appealed before a third-instance court, i.e. the Supreme Court. It also foresees that statutory provisions regarding second-instance court ’ s session apply likewise to the proceedings before the Supreme Court.

COMPLAINTS

The applicant complains under Article 6 about the fairness of the criminal proceedings against him. In particular, he complains that, unlike the public prosecutor, he was not present at the session when the Supreme Court convicted him; that the proceedings were not adversarial; that the principle of equality of arms and his defence rights were violated due to the lengthy investigation and the re-qualification of the charges; and that judges were biased in view of the guidelines that the superior courts provided when the case was remitted for fresh consideration. He further complains under Articles 3, 6 and 8 of the Convention alleging that the length of the proceedings was excessive and that it amounted to treatment prohibited under Article 3 and affected his personal and professional reputation.

The applicant complains under Article 13 that he had no remedy against the Supreme Court ’ s judgment.

QUESTIONS TO THE PARTIES

1. 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 applicant afforded the opportunity to be present and to effectively participate at the session held on 26 March 2008 when the Supreme Court convicted him to one year ’ s imprisonment ?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?