I incorrectly predicted that there's no violation of human rights in ZIBERI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA".

Judgment

FIRST SECTION

CASE OF ZIBERI v. NORTH MACEDONIA

(Application no. 2166/15)

JUDGMENT

STRASBOURG

6 June 2019

This judgment is final but it may be subject to editorial revision. In the case of Ziberi v. North Macedonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Aleš Pejchal, President,Tim Eicke,Jovan Ilievski, judges,and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 14 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2166/15) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian/citizen of the Republic of North Macedonia, Mr Amet Ziberi (“the applicant”), on 29 December 2014. 2. The applicant was represented by Mr S. Pavleski, a lawyer practising in Skopje. The Government of North Macedonia (“the Government”) were represented by their Agent, Mrs D. Djonova. 3. On 20 October 2017 notice of the complaint under Article 6 §§ 1 and 3 (d) was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1980 and lives in Skopje. 5. On 7 May 2005 a person holding a handgun stopped a car driven by F.N. and fired several shots in his direction, as a consequence of which F.N. died on the spot, and J.T., an Albanian national who had been in the passenger seat, was injured. J.T. was taken to hospital, where he was interviewed by the police. An on-site examination was also carried out. 6. On 8 May 2005 the police presented J.T. with photographs of potential suspects, from which he identified the applicant as the person who had fired at him and F.N. 7. The next morning the police conducted a search of the applicant’s house, where he lived with his parents, and recovered a handgun. Subsequent to the search, the applicant was arrested. 8. On the same day an identification parade was organised by the police, in which J.T. identified the applicant as the perpetrator. 9. On 11 May 2005 J.T. gave a statement before an investigating judge and a prosecutor. According to the record of the examination, the applicant’s lawyer had agreed to the interview taking place in his absence. J.T. stated that he had been asked to work on F.N.’s house as a handyman. He had arrived in Skopje on the day of the murder and he had been picked up by F.N. On their way to the house, a young man holding a handgun, around 24-25 years old, had intercepted the car. When F.N. had tried to open the car door the man had fired several times, killing F.N. and injuring J.T. The man had been standing in close proximity to the car when he had fired and J.T. had been able to see his face clearly. 10. On 6 July 2005 the applicant was indicted for murder and attempted murder before the Skopje Court of First Instance (“the trial court”). The prosecution proposed to call J.T. as a witness. 11. On 30 September 2005 the trial court requested that the Ministry of Justice (“the Ministry”) summon J.T. via diplomatic means, as he had returned to Albania. The trial court was not informed as to whether J.T. had received the summons. 12. At a hearing held on 22 November 2005 the applicant testified. He was disoriented and claimed to have no knowledge of the murder. A psychiatrist who attended the hearing as an expert clarified that that was as a result of his reduced mental capacity. Given the severity of his condition, the expert expressed concerns about how the applicant could have arrived at the place of the crime, which was located some 8-9 kilometres from his house (не би можела да тврдам како се случило да се оддалечи). 13. At the same hearing two of the applicant’s neighbours testified. M.J. stated that he had seen the applicant at home at the time of the murder. A.M. stated that he had seen the applicant in front of his house at about the same time, adding that the applicant could only walk very short distances unaccompanied. 14. On 23 November 2005 the trial court sent another summons to J.T. through the Ministry. 15. A hearing scheduled for 16 February 2006 was postponed on account of J.T.’s absence. There was no information as to whether he had received the summons. On the same day the trial court requested information regarding the summons of 23 November 2005. The Ministry responded that it had forwarded the summons to the Albanian authorities and that the trial court should allow more time between hearings to ensure a timely delivery of the summons. 16. A hearing scheduled for 14 March 2006 was postponed owing to the absence of J.T., who had not been summoned properly. The trial judge sent another summons to J.T. via diplomatic means. The Ministry again informed the trial judge that she should allow more time between hearings. 17. The trial court held four hearings and sent four summonses to J.T. in the period between June 2006 and December 2007. One summons was not delivered to him until after the hearing had taken place. He was properly summoned for another hearing, but he did not appear. 18. On a hearing dated 29 January 2008, the trial court admitted into evidence the statement that J.T. had given before the investigating judge, stating that it had made numerous attempts to secure his attendance. It concluded that J.T. had been properly served with several summonses, but had failed to appear. In view of the above, it ruled that there were justified reasons to admit his statement into evidence. In his closing argument, given at the same hearing, the applicant’s lawyer protested against that decision. He argued that admitting J.T.’s statement into evidence was a violation of section 351 of the Criminal Proceedings Act, by which the trial court had to provide the defence with an opportunity to cross-examine him. Failing that, a judgment could not be based merely on his statement. 19. On 7 February 2008 the trial court acquitted the applicant, holding that there had been no nitrate particles found on his body, the handgun that had been seized from the his house had not been the one used in the murder and there was no fingerprint evidence to suggest that he had been the perpetrator. The sole evidence in support of the prosecution had been the evidence provided by J.T., which was insufficient for a conviction. 20. The Skopje Court of Appeal (Апелационен суд Скопје) quashed the judgment, finding that the lower court had not given adequate weight to the evidence provided by J.T. 21. After two more remittals, on 24 October 2013 the trial court convicted the applicant as charged and ordered him to undergo compulsory psychiatric treatment. It reiterated its earlier findings (see paragraph 19 above), but concluded that the applicant had been guilty of the crimes on the basis of the on-site examination, the statement of J.T., the identification parade and the fact that J.T. had identified the applicant from the photographs. 22. The applicant appealed, asking that J.T. be cross-examined. He further stated that there was no basis in domestic law to admit J.T.’s statement into evidence and that all remaining evidence pointed to his innocence. 23. On 4 July 2014, after holding a public hearing, the Skopje Court of Appeal upheld the judgment finding that the evidence produced by J.T. had been admitted in compliance with section 351 of the Criminal Proceedings Act. II. RELEVANT DOMESTIC LAW
24. Section 351(1) of the Criminal Proceedings Act (Закон за кривичната постапка – пречистен текст, Official Gazette no. 15/2005, as applicable at the time) provided that if a relevant fact could only be established on the basis of an account by an eyewitness, that witness had to give evidence at a hearing. Reading out an earlier interview record or a written statement provided by such a witness could not be a substitute for first-person testimony. 25. Section 351(3) provided that, after consulting the parties, the trial panel could decide to read out the statement of a witness or expert who was not present at the hearing, irrespective of whether they had been invited to the hearing. After having read the statement, heard comments from the parties and taken into account the remaining evidence in the case, the panel could decide whether to call the witness to give testimony before the court. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
26. In the application form the applicant complained under Article 6 of the Convention that the criminal proceedings against him had been unfair, since his conviction had been based on evidence provided by J.T., whom he had not been able to cross-examine. In his subsequent submissions the applicant also requested that a violation of Article 5 be found for the same reason, but the Court will confine its examination to the complaints as submitted by the applicant in the application form. In this connection, it considers that the above complaint falls to be examined under Article 6 §§ 1 and 3 (d), which, in so far as relevant, provide as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
27. The Government did not raise any objection as to the admissibility of the application. 28. The Court notes that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
29. The applicant stated that all of the incriminating evidence in the case had stemmed from J.T., namely his statement, his identification of the applicant from the photographs presented by the police and the identification parade, all of which had taken place in the absence of the applicant’s representative. The remaining evidence did not link the applicant to the crime. He maintained that J.T. had been afraid to come to the respondent State and attend the trial, given the ill-treatment to which he had been subjected by the police during the investigation. Lastly, he argued that, in accordance with section 351(1) of the Criminal Proceedings Act, the domestic courts had been obliged to secure the presence of J.T. at the trial. In the alternative, and in the absence of any corroborating evidence, the applicant should have been acquitted. 30. The Government submitted that the domestic courts had taken all measures within their power to secure J.T.’s presence at the trial. Considering that he had been a foreign national, the courts had been justified in reading out his statement, which had been neither the sole nor the decisive evidence in the case. Finally, the courts had applied sufficient measures to counterbalance the handicap under which the defence had been labouring; that is to say, the applicant had been provided with an opportunity to present his version of events and he had been represented by a lawyer who had had the opportunity to attend J.T.’s interview at the investigation stage of the procedure, although he had chosen not to do so. 2. The Court’s assessment
31. The Court reiterates that Article 6 § 3 (d) of the Convention is a specific aspect of the right to a fair hearing guaranteed by Article 6 § 1, which must be taken into account in any assessment of the fairness of the proceedings (see, as a recent authority, Asani v. the former Yugoslav Republic of Macedonia, no. 27962/10, § 32, 1 February 2018). 32. The relevant principles and the applicable test developed in the Court’s case-law on the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence were set out in the cases of Schatschaschwili v. Germany ([GC], no. 9154/10, § 107, ECHR 2015) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011). (a) Whether there was a good reason for non-attendance
33. The Court would note at the outset that the impossibility of locating a witness may, under certain conditions, justify the admission of his or her witness statement in evidence although the defence had no opportunity to question him or her (see Lučić v. Croatia, no. 5699/11, § 79, 27 February 2014). In this respect, the Court needs to ascertain whether all reasonable efforts were made to locate the witness in question and whether the authorities were diligent in their attempts to secure his or her presence at the hearing (see Tseber v. the Czech Republic, no. 46203/08, § 48, 22 November 2012). 34. In the instant case, the domestic courts made repeated attempts to summon J.T. through diplomatic means, to no avail. However, having failed in those attempts, the domestic courts could have had recourse to international legal assistance and requested that J.T. appear before an Albanian court in order to enable the defence to cross-examine him via a video link, since it has not been argued that such an arrangement was not feasible (see Schatschaschwili, cited above, § 138). 35. Considering the fact that the applicant was not untraceable and the address of his residence was known to the trial court, since he received at least one summons at that address (see paragraph 17 above), it is unclear why the trial court failed to follow up on the matter, or to allow more time between hearings, as suggested by the Ministry of Justice (see paragraphs 15 and 16 above), so that he could receive the summonses in time. In view of the above, the Court considers that the domestic courts did not provide valid reasons for not ensuring the attendance of J.T. at the trial (see Asani, cited above, § 45; Paić v. Croatia, no. 47082/12, § 38, 29 March 2016; and Gabrielyan v. Armenia, no. 8088/05, § 84, 10 April 2012, with further references). (b) Whether the evidence was “sole or decisive”
36. The Court notes that the applicant was convicted of serious crimes in respect of which J.T. was the only eyewitness. This was not contested by the Government. 37. Furthermore, the applicant’s conviction relied solely on evidence provided by J.T. – namely his statement before the investigating judge and his identification of the applicant from the photographs presented by the police and at the identification parade. The Court cannot, in the absence of any explanation by the domestic courts, see how the on-site examination linked the applicant to the crime (see paragraph 21 above). In these circumstances the Court is of the opinion that the evidence provided by J.T. was the sole evidence in support of the applicant’s conviction (see Al‐Khawaja and Tahery, cited above, § 160). (c) Whether there were sufficient counterbalancing factors
38. The following elements were identified by the Grand Chamber in the case of Schatschaschwili as being relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and any procedural measures taken to compensate for the lack of opportunity to directly cross-examine witnesses at the trial (see Schatschaschwili, cited above, § 145). 39. At the outset the Court observes that there is no indication that the domestic courts approached the untested evidence with any specific caution or attached any less weight to it. 40. It has been noted above that there was no other evidence in the case, besides that provided by J.T., to corroborate the version of events leading to the applicant’s conviction. On the contrary, the remainder of the evidence supported his exoneration (see paragraphs 12, 13 and 19 above). 41. As to the Government’s argument that the applicant’s lawyer had been invited to attend J.T.’s interview during the investigation, the Court observes that there is no indication that the lawyer had been warned that the witness in question was a foreign national and that there could be difficulties with subsequent examination. Therefore, even though the applicant’s lawyer failed to use the opportunity to interview J.T. during the investigation, that cannot be taken as an informed waiver of his right to cross-examine him (see Gabrielyan, cited above, § 85, and compare Gani v. Spain, no. 61800/08, § 48, 19 February 2013). 42. Lastly, the Court observes that the applicant was not able to give coherent evidence before the trial court on account of his diminished mental capacity (see paragraph 12 above). Therefore, the fact that he was provided with such an opportunity cannot be regarded as an effective counterbalancing factor. (d) Conclusion
43. In view of the foregoing, the Court concludes that in the circumstances of the case the constraints affecting the applicant’s exercise of his defence rights with respect to the evidence provided by the witness J.T. were irreconcilable with the fair trial guarantees. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
45. The applicant claimed 30,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 46. The Government contested that claim as excessive and speculative. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 48. On the other hand, the Court finds that an award of compensation in respect of non-pecuniary damage is justified. Ruling on an equitable basis, the Court awards the applicant EUR 2,400 under this head, plus any tax that may be chargeable. B. Costs and expenses
49. The applicant also claimed EUR 1,500 in respect of legal fees for his legal representation before the Court based on the tariff list of the Macedonian Bar association. 50. The Government contested that claim as unnecessary and excessive. 51. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to a quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‐IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,250 plus any tax that may be chargeable to the applicant. C. Default interest
52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning Article 6 §§ 1 and 3 (d) of the Convention admissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the applicant’s defence rights regarding the examination of the absent witness;

3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,250 (one thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerAleš PejchalDeputy RegistrarPresident