CASE OF SANDEL v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1941. 5. On 9 April 1998 the applicant was arrested on suspicion of fraud. On 10 April 1998 he was brought before an investigating judge of the Skopje Court of First Instance (“the trial court”). The minutes of the hearing held on that date recorded that he had an insufficient command of Macedonian, but that he would agree, if need be, to have some phrases re-read or explained in detail. However, in the absence of his lawyer he remained silent. The investigation started and the applicant was remanded in custody. On 16 April 1998 he was again brought before the investigating judge and this time, in the presence of his lawyer, he produced evidence in Serbian stating that he had a limited command of Macedonian. He gave his testimony in the presence of Ms O.T., a court-certified interpreter. He signed the minutes without making any comment or objection. 6. On 29 April 1998 the public prosecutor lodged a bill of indictment. On 8 May 1998 the applicant objected on the ground that the bill was defective because it was not supported by sufficient evidence. On 15 May 1998 the trial court dismissed the applicant's objection. 7. On 23 June 1998 the applicant appointed another lawyer to represent him in the proceedings. 8. Four hearings fixed between July and September 1998 were adjourned owing to the applicant's request to use Hebrew, his mother tongue. 9. On 6 August 1998 he was released on bail. 10. On an unspecified date between September and December 1998, the trial court, at the applicant's suggestion, appointed Mr E.F., a Hebrew-speaking employee in a Skopje-based non-governmental organisation, as interpreter. 11. A hearing fixed for 15 January 1999 was rescheduled owing to the absence of Mr E.F. 12. On 29 April 1998 an investigation started in respect of the applicant into two other counts of fraud. On 1 June 1998 the public prosecutor lodged an indictment against the applicant. On 11 June 1998 the applicant objected on the ground of lack of evidence to support the charges against him. He also requested that the bill of indictment be translated into Hebrew. On 20 October 1998, in the presence of the applicant and his second lawyer, the trial court dismissed the applicant's objection. 13. On 10 March 1999 the trial court joined the two sets of proceedings. 14. Between 15 January 1999 and 12 September 2001, the trial court fixed nineteen hearings of which three were adjourned at the applicant's request, five owing to the absence of either an expert, who was called upon to provide an opinion of the applicant's signature, the public prosecutor or Mr E.F. and two owing to the absence of the trial judge and a strike by the court administration. During this time, the proceedings were conducted with the assistance of Mr E.F. In his presence, the court heard the applicant, the expert and several witnesses, two of which were foreign nationals, and obtained an expert report on the applicant's signature. At hearings on 10 March and 12 October 1999, and 12 September 2001, the applicant confirmed his testimony given in the pre-trial proceedings and stated that he had understood the bills of indictment communicated to him. 15. On 30 September 2001 Mr E.F. left the State and informed the trial court that he could no longer provide interpretation. By 3 March 2004, fifteen hearings were postponed because the trial court could not secure the attendance of Mr E.F. or another interpreter into Hebrew. At a hearing of 21 June 2002, the applicant insisted on having interpretation into Hebrew and refused the court's offer of English or Serbian interpretation. The Ministry of Justice stated that there was no court-certified interpreter into Hebrew registered in the respondent State who, under the rules of court, would be authorised to assist in court. The Jewish Association also replied that none of its members had sufficient command of Hebrew. 16. According to the minutes of the hearing held on 19 March 2003, the applicant stated that he had been living in the respondent State for ten years and had used English and Serbian for everyday communication. However, since his command of these languages was limited, he had insisted on having interpretation into Hebrew. 17. On 21 April 2003 a Skopje-based foreign language school issued a certificate attesting to the applicant's level of Macedonian. According to the latter, the applicant had limited understanding of Macedonian; he replied in Serbian; he could partly understand a written text if it was in Latin script but he could write only in Serbian. The applicant stated that he had submitted this certificate to the court as evidence. 18. At a hearing of 29 September 2003, the applicant stated that he used Macedonian, Serbian, Bulgarian and English for everyday communication. He signed contracts in Macedonian or English. In case something had to be added, he would ask his sons in Israel, in Hebrew, to translate the relevant part into English. 19. At a hearing of 17 November 2003, the applicant, when asked by the court, stated that he “used Macedonian, Serbian and English for everyday communication, but ... could not write or read in these languages or use them in the proceedings”. The applicant further stated that in the pre-trial proceedings, meaning the questioning of April 1998, he had made his statement in Serbian – despite having limited command of it – on the instructions of his lawyer, who, he alleged, had been working in concert with the police and who had set him up to sign the minutes. 20. In view of the applicant's statements, on 28 January 2004 the trial court appointed two interpreters into English, Serbian and Bulgarian, one of whom was Ms O.T. 21. From 3 March 2004 the proceedings were conducted with the assistance of these two interpreters. Three adjournments were ordered owing to the applicant's absence. 22. On 10 November 2004 the trial court ordered, at the applicant's request, that the bills of indictment of 29 April and 1 June 1998, be translated into English and Serbian. On 29 December 2004 the applicant returned the translated versions saying that he was proficient only in Hebrew. 23. From 15 January 2005, a third lawyer represented the applicant in the proceedings. At a hearing of 17 January 2005, the trial court refused his request for all documents in the case file to be translated into Hebrew since they had already been orally translated by Mr E.F., in whose presence the court had admitted other evidence. 24. At hearings held on 4 and 15 April 2005 and after the applicant's lawyer had given extensive concluding remarks, the trial court convicted the applicant and sentenced him to two years and six months' imprisonment. It also ordered a security measure – expulsion from the respondent State for four years. 25. On 29 September 2005 the applicant lodged an appeal written in Hebrew. At the trial court's request, he submitted a certified copy in Macedonian. He complained that, inter alia, he had not been given the right to use Hebrew even though the trial court had accepted that he had a limited command of Serbian and English. He argued that his initial statement in Serbian had been made under duress. He further complained that evidence against him had been admitted in the form of photocopies. 26. At a public hearing held on 18 April 2006, the Skopje Court of Appeal dismissed the applicant's appeal. It rejected his arguments concerning the use of Hebrew, relying on his initial statement of 16 April 1998 made in Serbian and the fact that all the admitted evidence had been translated into Hebrew with the assistance of Mr E.F. It also stated that his appeal had been translated into Macedonian by an interpreter certified by the court to translate into Turkish, which suggested that the applicant's insistence on the use of Hebrew had been aimed at prolonging the proceedings. It further rejected his complaints about the use of evidence in the form of photocopies, stating that it had not been possible to admit it in original form as it had meanwhile been destroyed. 27. On 14 June 2006 the applicant submitted an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда) to the Supreme Court in which he reiterated his complaints that he had been denied the right to use Hebrew, the only language of which he had sufficient command. He complained that the trial court, after being unable to secure the presence of a suitable interpreter, imposed the use of Serbian and other languages, even though it had established earlier in the proceedings that he could not use them proficiently. In this connection he complained about the rejection of his request to have an interpreter from abroad, even though Mr E.F. was an American Jew. He further complained that he had not been informed, in a language which he understood, of the nature and cause of the accusation. Lastly, he complained about the use of evidence in the form of photocopies. 28. On 16 January 2007 the Supreme Court dismissed the applicant's appeal on points of law. It held that the proceedings had been conducted in a language which the applicant understood, relying on the depositions taken on 16 April 1998 in the pre-trial proceedings and the fact that all the evidence had been translated into Hebrew by Mr E.F. It also held that the applicant had had, throughout the entire proceedings, defence counsel of his own choosing. It further dismissed the remaining complaints finding no grounds for departing from the reasoning given by the lower courts. No information was provided as to the date of service of this decision. 29. On 27 June 2008 the President of the State granted the applicant early release from prison. 30. During the proceedings, the applicant requested, on several occasions, that the trial court and the State Judicial Council speed up the proceedings.