MAMUDOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Mefail Mamudovski, is a Macedonian national who was born in 1973 and lives in the village of Podgorci, in the former Yugoslav Republic of Macedonia. On 4 October 2004 the Kumanovo Court of First Instance (“the trial court”) found the applicant, who was put on trial in absentia, Mr D.M. and Mr M.E. guilty of drug trafficking and sentenced them to terms of imprisonment of five to seven years. The applicant received the longest sentence. The court found that they had acted in concert, namely that Mr D.M. and Mr M.E. had loaded over 20 kg of heroin on to a truck in the former Yugoslav Republic of Macedonia in order to offer it for sale in Italy, where the applicant had temporary residence. The applicant's conviction was based on Mr M.E.'s statements given in the pre-trial proceedings and at the trial concerning his role in the crime. Mr D.M. denied knowing the applicant. The applicant, who was legally represented, successfully requested a reopening of the proceedings after his return to the former Yugoslav Republic of Macedonia. On 23 March 2006 the trial court set aside its decision of 4 October 2004, convicted the applicant of drug trafficking and imposed the same sentence. It examined the applicant and Mr D.M. It refused his request to hear evidence from Mr M.E. and to confront the latter with Mr D.M., however. The applicant appealed on the grounds, inter alia, that the trial court had refused his request for examination of Mr M.E., even though his conviction had been based solely on the latter's testimony. At a public hearing held on 16 June 2006, the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. It found that Mr M.E.'s testimony had been clear and coherent, and that he had described in detail the sequence of events and the convicts' roles in the crime. The applicant's request for a reopening of the proceedings was finally dismissed by the Skopje Court of Appeal on 17 June 2008. Under section 403 of the Act a public prosecutor “may” (може) request the protection of legality (барање за заштита на законитоста) against a final court decision. According to section 406 § 1 of the Act, the court has to confine itself to reviewing the alleged violations complained of by the complainant. Section 408 § 1 provides that if the request is well founded, the court is either to overturn the final decision or to quash, entirely or in part, the decisions of the trial court and the appellate court, or the appellate court's decision alone, and refer the case back for a retrial or to the appellate court, or establish the violation itself. Section 409 provides that if there is considerable doubt as to the relevant facts established in the judgment against which the request was lodged and accordingly it is not possible to review it on the merits, the court will quash it and order a retrial before the same or another trial court. Section 411 §§ 1 and 2 provides that a person convicted by a final judgment and sentenced to imprisonment may request extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). The extraordinary review request may be submitted within thirty days of the date on which the convicted person was served with the judgment. Under section 412, the Supreme Court decides extraordinary review requests. Under section 413 § 1 (3), an extraordinary review request may be submitted in a case of a violation of the defence rights of the convicted person by the trial court or an infringement of the procedural rules in the appeal proceedings, if relevant to the adoption of a just decision. Section 414 §§ 1 and 5 provides that an extraordinary review request may be lodged by the convicted person or his counsel. The trial court or the court which decides upon the extraordinary review request may postpone or stay the execution of the final court decision. Section 415 stipulates, inter alia, that sections 406, 408 § 1 and 409 of the Act apply to extraordinary review requests. a) The Supreme Court accepted convicts' extraordinary review requests and ordered retrial on the ground that law had been applied to their significant disadvantage. The court requested reassessment of evidence and reconsideration of the facts (Kvp.br.52/1998 of 28 April 1998 and Kvp.br.143/1999 of 5 October 1999). b) A person was convicted, at first and second instance, for having undertaken three activities which provoked religious and ethnic hatred. The Supreme Court ruled partly in favour of the convict and excluded two of the counts for which he was convicted of (Kvp.br. 191/2005 of 13 September 2005).