FEJZULLA AND MAZREKU v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
The applicants, Mr Genci Fejzulla (“the first applicant”) and Mr Jonuz Mazreku (“the second applicant”), are Albanian nationals who were born in 1970 and 1953, respectively and they live in Fier, Albania. The first applicant, who is the second applicant’s nephew, also has Italian citizenship. They are represented before the Court by Mr M. Vujik and Mr E. Milanov, lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 January 2005 the public prosecutor filed an indictment with the Skopje Court of First Instance (“the trial court”) charging the applicants and Mr R.A., Mr I.N. and Mr P.G. with drug trafficking. According to the indictment, on 12 December 2004 the first applicant and Mr R.A. had bought 18.95 kg of heroin from a certain Mr Dz.N. in Istanbul, Turkey. After the drugs had entered the respondent State, they had been handed over to Mr R.A. so that he could take them to Albania. On 19 December 2004 the applicants, together with Mr R.A., had arrived at a car park near the Skopje Fortress. Mr I.N. and Mr P.G. had also arrived and had loaded the drugs into Mr P.G.’s truck. Seventeen cakes of heroin had been stored in the spare tyre and twenty-one cakes had been put in a special compartment in the front of the truck. The charges were based, inter alia, on an expert opinion of 20 December 2004, three search reports, seven certificates for temporarily seized objects, and a list of passengers (“the list”) indicating the names of the first applicant and Mr R.A. as having travelled in a bus from Istanbul to Skopje on 13 and 14 December 2004. The list had been sent by border police on 20 December 2004 to the Ministry of the Interior (“the Ministry”), as was the case with a special report, no.10.2.3-5305 of 20 December 2004, produced by the Ministry. According to the latter, on 19 December 2004 the Ministry had requested (request no.20.4-21558), and the public prosecutor had ordered, an audio-visual recording of the car park. The recording had been made on that date between 11 a.m. and 3.55 p.m. Two digital video cameras and one digital photo camera had been used. In the proceedings before the Court, the Government submitted a copy of the Ministry’s request no.20.4-21558 of 19 December 2004, according to which the Ministry had requested that the public prosecutor authorise the audio-visual surveillance because it believed that a significant quantity of heroin was to be trafficked and prepared for transportation outside the respondent State. For that purpose, unidentified persons had been expected to arrive at the car park in a vehicle with Albanian car plates and meet with other unidentified persons. They also submitted another report by the Ministry dated 20 December 2004 (report no.10.9-01/350), according to which the total duration of the video of the car park recorded with both cameras was sixty-two minutes and thirty-three seconds. This report was admitted in evidence in the domestic proceedings. They also submitted a copy of the search report of the truck dated 19 December 2004. That search had been ordered by an investigating judge and had been attended by Mr P.G. and two witnesses. At a hearing on 4 March 2005, the first applicant stated that he had not met Mr R.A. in Istanbul, as alleged by the prosecution, but rather on the bus while travelling to the respondent State. He had never met him before then. On that occasion, they had discussed the possibility of trading coffee machines. For that reason, he had gone to Skopje with the second applicant, who was a taxi driver. He had not told the second applicant the reason for, or the duration, of his stay in Skopje. The second applicant stated that he had gone to Skopje at the request of the first applicant so that the first applicant could discuss business matters with a third person. The first applicant had told him that their stay would be short, a day or two. He denied that he had known Mr I.N. and Mr P.G. Mr P.G. stated that he had not known, and had never seen, the applicants before. On 18 March 2005 the trial court found the defendants guilty and sentenced them to a prison term. The second applicant received the shortest sentence (five years’ imprisonment). All the other defendants, including the first applicant, were sentenced to eight years’ imprisonment. An expulsion order of indefinite duration (казна протерување засекогаш) was also issued against the applicants. Mr R.A. and Mr I.N. were convicted in absentia because they had escaped from the car park and had not been found since. The applicants had had no prior criminal records in the respondent State. The trial court found that the defendants had acted in concert, as described in the indictment. It established that on 13 December 2004 the first applicant and Mr R.A., having bought the heroin from Dz.N., had arrived in the respondent State on a bus from Istanbul. The list supported that finding. The first applicant had continued on to Albania. On 17 December 2004 the applicants had arrived in Skopje. During their stay, they had met up with Mr R.A. and Mr I.N. several times. Mr P.G. had arrived in Skopje with his truck. On 19 December 2004 he had met up with Mr I.N. at a previously determined place. As already agreed upon, all the defendants met at the car park near the Skopje Fortress, where Mr I.N. and Mr P.G. had loaded the drugs into the latter’s truck, as described above. After Mr P.G. had left the scene, the remaining defendants had embraced each other and had left, satisfied with the job done. The applicants’ car had been stopped by police upon leaving the city. These facts were established, inter alia, on the basis of a VHS tape of the video recording of the car park on 19 December 2004. In the proceedings before the Court, the applicants submitted a copy of the VHS tape used in court. The total length of the video material recorded on the car park was sixty-three minutes and twenty seconds. The trial court rejected the applicants’ denial that they had been involved in the crime. It further rejected their arguments that a purely visual recording without sound could not be relied upon to establish the facts: the court explained that it had been impracticable to obtain an audio recording. The applicants appealed against this decision, arguing that, inter alia, there had been no evidence supporting the trial court’s opinion that the first applicant had bought the heroin in Turkey and that the defendants had acted in concert. They stated that the visual recording, as the only evidence on which their conviction rested, had been incomplete and inaccurate. They further reiterated that there had been no audio recording, as required under section 142-b § 1 (3) of the Criminal Proceedings Act, which consequently made the recording inadmissible. At a public session held on 4 July 2005, the Skopje Court of Appeal allowed the applicants’ appeal and quashed the trial court’s decision, which it found to have been inconsistent and unreasoned. It also held that the video material had not been properly admitted in evidence. At the new trial, the applicants reiterated their objections concerning the credibility and probative value of the video material recorded on the VHS tape. In this connection, they argued that there had been time gaps and interruptions in the video and requested that the trial court admits the original video material in evidence. The court refused this request and said that there was no doubt that the video material recorded on the VHS tape was identical to the original video material recorded by the digital cameras. The applicants further argued that the recording had been unlawful because it had been authorised by the public prosecutor, instead of by an investigating judge, on the basis that the Ministry had known the identity of the possible perpetrators (see section 142-d § 3 of the Criminal Proceedings Act). In this connection the court allowed the applicants’ request and admitted the public prosecutor’s order for the audio-visual recording of the car park (order KON.br.5530/04). According to the order, the recording would last twenty-four hours and be stopped should the identities of the suspects be discovered. The court, however, refused to admit the Ministry’s request no.20.4-21558 of 19 December 2004 and said that it was irrelevant to the validity of the order. On 17 October 2005 the trial court convicted the applicants of the same offence and imposed the same sentences and expulsion orders as before. Relying on the public prosecutor’s order, the court rejected the applicants’ arguments that the video material had been unlawfully obtained. Noting the lack of synchronisation between the video cameras used for the recording, the court stated that the time gaps and interruptions in the video material had not affected the credibility of the video evidence. It further referred to a discrepancy in the applicants’ statements given during the trial. It rejected their arguments that they had been in a restaurant with Mr R.A. at the time when the drugs had been loaded into the truck, as there had been no such place in the vicinity of the car park. Even if they had been in a restaurant, the nearest one was located far away from the car park and would have required the applicants to walk for a considerable period of time, which the court found unreasonable given the weather conditions at the relevant time. Lastly, and for the reasons provided in its first decision, the court rejected the applicants’ complaints regarding the absence of audio recording. The applicants appealed arguing that, inter alia, the trial court had refused to admit in evidence the original video material, which the applicants had sought to have admitted so that light could be shed on the doubts concerning its credibility. They also complained about the refusal to admit the Ministry’s request of 19 December 2004 that prompted the public prosecutor’s order, arguing that this was crucial for establishing the lawfulness of that evidence. The public prosecutor also appealed against the decision. At a public session on 27 February 2006, the Skopje Court of Appeal allowed the public prosecutor’s appeal and increased the applicants’ sentence: the first applicant’s sentence was increased to ten years’ imprisonment and the second applicant’s sentence was increased to seven years’ imprisonment. It dismissed the applicants’ appeal, finding no grounds to depart from the established facts and the reasoning given by the trial court. It stated that the trial court had examined the VHS tape and had confirmed its credibility by watching it and by describing the events as filmed. On 16 May 2006 the applicants lodged an appeal with the Supreme Court on points of law (барање за вонредно преиспитување на правосилна пресуда), in which they reiterated their complaints that their conviction was based on inadmissible evidence namely, the VHS tape, whose credibility and lawfulness they challenged. They further complained that court transcripts in the case file had been modified after the trial and did not correspond to the copies in their possession. In a decision of 20 December 2006, the Supreme Court dismissed the applicants’ appeal and upheld the lower courts’ decisions. It did not have jurisdiction to consider the complaints about the court transcripts and, otherwise it adhered to the reasons given in the lower courts’ decisions of October 2005 and February 2006 respectively. The decision was served on the applicants on 9 February 2007. On 11 April 2007 the applicants complained to the Judicial Council (Судски Совет) that modifications had been made to the transcripts. Having examined the case file and interviewed the trial judge, the Judicial Council, in a letter of 3 December 2007, informed the applicants that there had indeed been certain modifications, which had concerned only structure and not content. In the absence of any evidence, no responsibility for the amendments could be attached to the trial judge. As regards the modification of the transcripts, the Organised Crime and Corruption Department of the Public Prosecutor’s Office, acting upon the applicants’ request, opened a file. No decision as to any prosecution has yet been taken. Under section 42 § 2 (2) of the Act, in respect of criminal offences subject to automatic prosecution by the State, the public prosecutor can order the use of a special investigative technique in pre-trial proceedings under the conditions and in the way specified by law. Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia, an organised group. Secret surveillance and audio-visual recordings are among the permitted special investigative techniques (section 142-b § 1 (3)). Section 142-c § 1 provides that information, documents and objects obtained by means of a special investigative measure may be used as evidence in criminal proceedings. Under section 142-d § 3, at the pre-trial stage, the use of special investigative techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown. Under section 142-e § 4 of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or contrary to the Act. Section 142-f §§ 2 and 3 of the Act provide that, inter alia, the Ministry shall prepare, after the expiration of the period within which a special investigative technique was used, a report and shall submit it to the public prosecutor if the order for the technique used was issued by the latter.