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FIRST
SECTION
CASE OF ATANASOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(No. 2)
(Application
no. 41188/06)
JUDGMENT
STRASBOURG
19 April
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Atanasov v. the
former Yugoslav Republic of Macedonia (no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Christos Rozakis,
Peer
Lorenzen,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41188/06) against the former
Yugoslav Republic of 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 national,
Mr Sande Atanasov (“the applicant”), on 9 September
2006.
- The
applicant was represented by Ms V. Koceva, a lawyer practising in
Negotino. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged procedural unfairness, in particular, that the
domestic courts had rejected his request to cross-examine Mr G.A.,
the only witness who had produced evidence against him
- On
1 March 2010 the President of the Fifth Section decided to
communicate this complaint to the Government.
- On 1 February 2011 the Court changed the composition of
its Sections (Rule 25 § 1). The case was assigned to the newly
composed First Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Negotino.
- The
applicant was an employee and shareholder of the company N. (“the
company”). He was also Chairman of the company’s Union of
Workers.
- On
28 June 2002 a letter was published in the newspaper M.D.
under the following title: ‘Unusual alliances have destroyed
the Negotino cable-production factory’ (“Неприродни
сојузи ја уништија
Неготинската
фабрика
за кабли”). The
applicant’s name was indicated as the author of the text. The
latter spoke about the problems of the company’s employees and
shareholders. It alleged that since Mr B.J. had become the company’s
Chief Executive, the shareholders had been deprived of their rights
and pressed to withdraw lawsuits against the company’s
management. The latter had dismissed the Union of Workers and
appointed its own union. It further stated, inter alia:
“... I, as the Chairman of our Union, was laid off
in unfair disciplinary proceedings ... I’ve already said that
Mr I.G. and Mr B.J., the Chief Executives of the company, had taken
over the factory from us and engaged in criminal activities in these
two and a half years. We, the employees, are laid off in fake
disciplinary proceedings, while more senior employees are under
continuing pressure to leave the factory as redundant. Why the law
cannot reach ... Mr B.J.? ...”
- On
1 July 2002 Mr B.J. submitted to the Skopje Court of First Instance
(“the trial court”) a private criminal complaint against
the applicant for defamation. On 24 March 2003 he supplemented the
complaint and requested that the applicant be held responsible for
defamation in respect of another article published on 5 March 2003 in
a weekly newspaper S.
- On
an unspecified date in 2004, the trial judge ordered that the police
assist in securing the applicant’s attendance at a hearing. The
applicant relied inter alia on that order in his request for
withdrawal of the trial judge, which was to no avail.
- According
to the minutes of a hearing of 25 January 2005, Mr A.M., a
journalist, and a chief editor of the newspaper M.D. did not
appear since they had not been properly summoned. On this occasion,
the applicant stated the following:
“... I consider the criminal complaint
unsubstantiated since the only evidence against me was the extract of
the newspaper bearing my name. There is no other evidence that I’m
the author of the letter. It is well known that a letter or statement
is to be published only if signed by the author ...”
- Mr
B.J. stated, inter alia:
“... regarding the letter in question, which was
signed by [the applicant], I knew that it was sent by him since
another letter with similar content, signed by [the applicant], had
been earlier published by the newspaper ... the defamatory statements
are similar to some previous statements that he was making
continuously directly to me or by e-mail. At every meeting [the
applicant] made the same allegations as described in the criminal
complaint. He has a web page where many others and I are mentioned
and described in the same manner as in the newspaper M.D. ...”
- According
to the minutes, the trial court ordered that Mr A.M. and the chief
editor of the newspaper be summoned for the next hearing.
- In
a letter of 23 June 2005 (the date of 20 June 2003 was also
indicated) Mr G.A., the Director of the newspaper stated, inter
alia:
“... we inform you that the author of the
published letter ... is [the applicant], whose signature was under
the text. By rule we publish only letters, which bear the author’s
signature and address, as well as the identity card number. The
newspaper keeps these letters for thirty days before it destroys
them. They may be kept longer only if they provoke reactions or
become the subject of court proceedings or with a view to identifying
the authors. The present letter, signed by [the applicant] and
published in our newspaper, did not provoke any reactions nor was its
authenticity contested. It is therefore not stored in our records.”
- On
7 November 2005 Mr B.J. withdrew the complaint which he had submitted
on 24 March 2003.
- During
a hearing held on 6 December 2005, the applicant stated that the
relevant letter had been published without his permission. In the
concluding remarks, he reiterated that he had not been the author of
the letter and that no evidence had been presented to prove the
contrary.
- On
the same date, the trial court convicted the applicant and sentenced
him to three years’ imprisonment, suspended for a year. The
court inter alia stated:
“...Mr G.A.’s letter of 23 June 2005
confirms that the applicant was the author of the letter published in
the newspaper M.D. ... the text itself concerns the operation
of the factory, in particular that of its director, the plaintiff.
The letter states that the accused, as the Chairman of the Union, was
dismissed in fake disciplinary proceedings. Consequently, it is
evident from the content that [the applicant] is the author of the
text. In his defence, [the applicant] stated that he was the Chairman
of the Union and was dismissed. Since the events related to him, it
can be concluded that he wrote the letter and signed it ... The court
assessed the applicant’s defence that there was no evidence
that he was the author of the letter ... and that the criminal
complaint was unsubstantiated in the absence of such proof ...
furthermore, he stated that he had not given permission for its
publication and that he would not reply whether he had sent the
letter to the newspaper. That the accused committed the crime and was
the author of the letter is confirmed by the letter of the
newspaper’s director ... the plaintiff’s testimony also
confirmed that the accused was the author of the text ... since [the
applicant] made similar statements to him directly.... On the other
hand, [the applicant] did not present any evidence that he had not
been the author of the letter nor he had objected to the newspaper in
this respect. Consequently, he did not present any evidence that
would contradict the statements that the newspaper’s director
made in his letter ...”
- On
18 February 2006 the applicant appealed against this judgment arguing
that the plaintiff had not presented any evidence to corroborate his
guilt. In this connection he argued that the plaintiff could have
obtained a copy of the original letter in support of the criminal
complaint, which he had lodged three days after its publication. He
failed to do so since there was no letter with his signature. He
reiterated that he had not signed the letter and that somebody else
had put his name under the text. He further complained that:
“...
the trial judge rendered the decision without having examined the
only witness mentioned in the decision. Although the trial judge
requested his presence, he – the newspaper’s director,
did not appear in court. He did not produce oral evidence before the
court, but sent instead, the letter in which he untruly states that
my signature, address and identity card number were indicated under
the text. Since the court summoned this witness, his failure to
appear should not have been replaced with the letter. This witness
should have been heard in my presence and the court should have
allowed me to confront him ... In this connection I invoke Article 6
of the Convention ...”
- The
applicant further complained that he was not given access to the case
file nor was he allowed to make copies. Lastly, he complained that
the trial judge ordered the police to secure his attendance at the
trial, on the assumption that he had failed to appear in court on
earlier occasions. In this later respect, he argued that there was no
evidence in the case file that he had been summoned properly.
- On
9 March 2006 the Skopje Court of Appeal dismissed the applicant’s
appeal stating that inter alia:
“...
there were no substantive procedural flaws ... the trial court duly
considered all evidence, established the facts correctly and rendered
a decision that is clear and sufficiently reasoned ... Since there
are no grounds in [the applicant’s] appeal that would
contradict the trial court’s findings related to the existence
of the crime and [the applicant’s] criminal responsibility,
this court adheres to the facts established by the trial court.”
- This
decision was served on the applicant on 22 March 2006.
- On
21 June 2006 the applicant requested the public prosecutor to lodge a
request with the Supreme Court for the protection of legality.
According to him, the public prosecutor rejected this request.
II. RELEVANT DOMESTIC LAW
- Section 418 (7) of the Criminal Proceedings Act of
2005 (consolidated version) provided that a case may be reopened if
the European Court of Human Rights has given a final judgment finding
a violation of the human rights or freedoms. The same provision is
provided for in section 449 (6) of the new Criminal Proceedings Act,
which entered into force in 2010 and would become applicable two
years after its entry into force.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (d) of the
Convention that the domestic courts had refused to examine Mr G.A.,
the only witness, whose letter served as key evidence on which his
conviction rested. He also complained that the principle of equality
of arms had been violated since the trial court had ordered that his
attendance at the trial be secured by force, which had not been the
case with Mr G.A., who had also refused to appear in court. Lastly,
he alleged that he had not been allowed to inspect the case file.
Article 6 §§ 1 and 3 (d) of the Convention, in so far as
relevant, reads as follows:
Article 6 §§ 1 and 3 (d)
“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
1. The domestic courts’ failure to examine Mr
G.A.
- The
Government did not raise any objection as to the admissibility of
this complaint.
- 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.
2. Remaining complaints
- The
applicant alleged violation of the principle of equality of arms
since the trial court had not requested, unlike in his case, that the
police secure the attendance of Mr G.A. at the trial. Lastly, he
alleged having been denied access to the case file.
- The
Court has examined these complaints. However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
2. Merits
a) The parties’ submissions
- The
Government submitted that the applicant had not made an explicit
request that Mr G.A., as well as any other witness, be examined nor
had he challenged the trial judge’s decision to admit Mr G.A.’s
letter in evidence. The trial judge regarded the letter sufficient to
corroborate the applicant’s guilt and found no reasons to hear
oral evidence from Mr G.A. Referring to the Court’s relevant
case-law, the Government maintained that it was within the competence
of the domestic courts to decide about the admissibility of evidence
or the manner in which it should be appraised.
- The
applicant reiterated his arguments that he had been convicted without
having been given the opportunity to confront the only witness who
had presented evidence against him. He stated that his conviction had
not been based on facts, but on the assumption that he had been the
author of the letter. Before the domestic courts, he had claimed, in
vain, that he had not signed the letter and that it had been
published without his permission. In this connection he
submitted a copy of a letter, which, although he had not signed, was
published by a newspaper in March 2010. He concluded that it had been
on the plaintiff to provide a signed copy of the letter in support of
the criminal complaint.
b) The Court’s assessment
- As
the guarantees of Article 6 § 3 (d) are specific aspects of the
right to a fair trial set forth in paragraph 1 of this Article, the
Court will consider the complaint concerning the failure to examine
Mr G.A. under the two provisions taken together (see Asch v.
Austria, 26 April 1991, § 25, Series A no. 203).
- The
Court reiterates that, as a general rule, it is for the national
courts to assess the evidence before them as well as the relevance of
the evidence which defendants seek to adduce (see Barberà,
Messegué and Jabardo v. Spain, 6 December 1988, § 68,
Series A no. 146). More specifically, Article 6 § 3 (d)
leaves it to them, again as a general rule, to assess whether it is
appropriate to call witnesses, in the “autonomous” sense
given to that word in the Convention system; it “does not
require the attendance and examination of every witness on behalf of
the accused (see Engel and Others v. the Netherlands, 8 June
1976, § 91, Series A no. 22, and Bricmont v. Belgium,
7 July 1989, § 89, Series A no. 158).
- The
task of the Court is to ascertain whether the proceedings at issue,
considered as a whole, were fair as required by Article 6 § 1
(see Vidal v. Belgium, judgment of 22 April 1992, Series A no.
235-B, § 33). However, even though it is normally for the
national courts to decide whether it is necessary or advisable to
call a witness, there might be exceptional circumstances which could
prompt the Court to conclude that the failure to hear a person as a
witness was incompatible with Article 6 (see Popov v. Russia,
no. 26853/04, § 179, 13 July 2006).
- In
the present case, the Court notes that the applicant was convicted of
having made defamatory statements against Mr B.J. in the letter
published in the newspaper M.D. In the proceedings in
question, the domestic courts heard the applicant and the plaintiff.
The applicant contested that he had been the author of the letter
arguing that he had not signed it and had not consented accordingly
to its publication. The plaintiff stated that the defamatory
statements made in the letter were similar to some prior statements
that the applicant had told him. The trial court further referred to
the letter itself and concluded that the events described therein
related to the applicant. That the applicant was the author of the
text, the court relied on Mr G.A.’s letter of 23 June 2005 in
which he confirmed that the letter in question had been submitted by
the applicant, a fact which was evident from his signature under the
text. The newspaper did not have the original letter. Lastly, the
trial court held that the applicant did not produce any evidence that
he had not been the author of the text.
- It
is clear from the trial court’s decision of 6 December 2005,
that the applicant’s conviction was based mainly on Mr G.A.’s
letter. The court did not treat this letter simply as an item of
information, but as proof of the truth of the accusations that the
applicant was the author of the letter. In the absence of the
original letter, there was no direct evidence linking it with the
applicant. It is to be noted that Mr G.A.’s letter was admitted
in evidence after the trial court had failed to secure the attendance
of a journalist and the newspaper’s chief editor, witnesses who
were proposed for examination, purportedly, by the applicant. From
the applicant’s appeal of 18 February 2006, it
appears that this letter was admitted after the trial court had
failed also to secure the attendance of Mr G.A. The applicant’s
complaints that he was denied the right to cross-examine Mr G.A., as
the only witness against him, remained unanswered by the Court of
Appeal. In the absence of any explanation by the domestic courts, the
Court does not consider that there existed any particular
circumstances justifying their failure to secure Mr G.A.’s
attendance at the trial.
- In
such circumstances, it appears that the applicant never had an
opportunity to examine Mr G.A. whose written statement - which was
vital, was read out at the trial. Admittedly, the applicant was able
to submit his comments freely during the hearing, but he was
nevertheless convicted on the basis of evidence in respect of which
his defence rights were appreciably restricted (see Unterpertinger
v. Austria, 24 November 1986, § 31, Series A no. 110).
- There
has accordingly been a violation of Article 6 §§ 1 and 3
(d) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed EUR 4,000 in respect of non-pecuniary damage for
the emotional suffering caused by the alleged violations.
- The
Government contested this claim as unsubstantiated, but left the
matter to the Court’s discretion in the event of the Court
finding a violation of any of the Convention rights.
- The
Court considers that the applicant must have suffered non-pecuniary
damage as a result of the violation found. Ruling on an equitable
basis, it awards him EUR 3,200 under this head, plus any tax
that may be chargeable to him.
- Furthermore,
the Court is of the view that, where an individual, as in the instant
case, has been convicted by a court in proceedings which did not meet
the Convention requirement of fairness, a retrial or a reopening of
the case, if requested, represents in principle an appropriate way of
redressing the violation (see, mutatis mutandis, Öcalan
v. Turkey, no. 46221/99 [GC], § 210, in fine,
ECHR 2005 – IV; Kahraman v. Turkey, no. 42104/02, §
44, 26 April 2007 and Halis Tekin
v. Turkey, no. 64570/01, § 53, 19 July 2007).
B. Costs and expenses
- The
applicant also claimed EUR 400 for the costs and expenses incurred
before the domestic courts. He further claimed reimbursement of the
costs and expenses related to the proceedings before the Court,
without specifying any amount under this head. He did not provide any
supporting documents.
- The
Government contested this claim as unsubstantiated.
- The
Court notes that the applicant did not submit any supporting
documents or particulars to substantiate his claims. Accordingly, the
Court does not award any sum under this head (see Parizov v. the
former Yugoslav Republic of Macedonia, no. 14258/03, §§
71 and 72, 7 February 2008).
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the domestic
courts’ failure to examine Mr G.A. admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,200
(three thousand and two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić Deputy
Registrar President
