CASE OF DUŠKO IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1971 and lives in Skopje. 6. On 4 February 2003 the applicant was apprehended by the police on a location in Skopje and searched. As indicated in the search record, which the applicant duly signed, the search was carried out without a court warrant and in the absence of witnesses, as provided for in sections 200(4) and 202(2) of the Criminal Proceedings Act (“the Act”, see paragraph 32 below). The police confiscated 13 keys and a mobile phone from him. The search was completed at 2.10 pm. 7. On that date, an investigating judge of Skopje Court of First Instance (“the trial court”) issued two separate search warrants (Kri.br.34/03 and Kri.br.35/03) concerning two apartments (nos. 8 and 9 in the building in which the applicant lived) and other premises (наредба за претрес на дом и други простории) owned by the applicant’s father. The search warrants were issued on the reasonable suspicion that the applicant had been involved in drug trafficking. 8. Both apartments and the accompanying cellars were searched that day in the presence of the applicant’s father and two neighbours, who acted as witnesses. Seven packages containing an unknown substance were found. An authorised police officer, the neighbours, as well as the applicant’s father, who was specified in the search records as the occupier of the premises, signed the search records without any objection. The searches were completed at 6 pm. and 7.30 pm. At the request of those attending the search, the following note was included in the search record concerning apartment no. 9: “The packages were found in the cellar belonging to apartment no. 10 of the same building, which was opened with a key confiscated during the personal search of [the applicant] ....” 9. As indicated in that search record, a certificate of confiscation of property (“the certificate”) was issued concerning the seven packages found in the cellar. It stated that the packages had been confiscated in relation to a crime punishable under the Criminal Code (drug trafficking). The applicant had not been present in the cellars while those were being searched but was brought to the premises afterwards (see § 16 below). He signed the certificate of confiscation as a person from whom the packages had been confiscated. 10. On 5 February 2003 the Criminal Investigations Bureau at the Ministry of the Interior (“the Bureau”, Сектор за криминалистичка техника) carried out an expert examination of the padlock which had secured cellar no.10 and 13 keys that had been confiscated from the applicant. According to the expert report of that date (no. 10.2.6-5520/1), the locking system of the padlock had been damaged and it could be opened with any object, including all keys confiscated from the applicant. 11. In another expert report (X-164/2003) of that date, the Bureau confirmed that five packages found in cellar no.10 contained 2.296 kg of heroin. As to the remaining 0.991 kg found in the two other packages, the report stated that they contained two substances that were often mixed with heroin. That was confirmed by an additional expert report of the Bureau dated 10 February 2003 (no. X-164/2/2003). As indicated in the report X-164/2003, each of six packages found in the cellar contained between 486gr and 527gr. The dimensions of the largest package were 20x10x2.2 mm. 12. A third expert report of the Bureau (SK-164/2003) of 5 February 2003 that concerned a fingerprint found on one of the packages confiscated in cellar no.10 stated: "The fingerprints found were entered into the system of automatic search of fingerprints ... it was determined, after verification of the list of suspected candidates, that [the fingerprints] corresponded to (the applicant’s) right middle finger ..." 13. On the same date, the Ministry of the Interior lodged a criminal complaint with the public prosecutor accusing the applicant of drug trafficking. In support, it submitted the evidence described above (see paragraphs 6-12 above) and a number of photographs. 14. On 5 February 2003 an investigating judge of the trial court examined the applicant in the presence of his lawyer. The applicant remained silent. He confirmed, however, that he had signed the record of his personal search and two certificates of confiscation of property. The investigating judge opened an investigation against the applicant and ordered his pre-trial detention for thirty days. 15. On 17 February 2003 the public prosecutor lodged an indictment with the trial court charging the applicant with having been in possession of and offering for sale 5 packages containing 2.396 kg (the weight was specified to 2.296 kg later at the trial) of heroin and 0.991 kg of other prohibited substances, which had been found in the cellar of the building in which he had lived. 16. At a hearing held on 19 March 2003, the trial court examined the applicant, who denied any connection with the drugs found in the cellar. As to the cellar, he submitted that it belonged to a third party, whom he did not know. He further stated that after he had been arrested, he had been brought with a police car in front of the building in which he had lived. He had waited in the car for an hour or two before the police had brought him to the cellar. He submitted that there had been many people (мешаница) there, including five police inspectors who had asked him to hold the packages in his hands in order to photograph him. The applicant also stated: “They forced me to touch the drugs; I don’t remember what the packages looked like and how many there were. At that point, maybe I touched (the drugs), I don’t remember. Then they photographed me; I refused [to cooperate] the whole time. My father was also present. Then, they brought me to the police (station) where they again forced me to take the [package of] drugs, to hold it in my hands in order to take photographs... Then, they started beating me and jumping over handcuffs (put) on my hands in order to [make me] touch the drugs. Then, they took my fingerprints. I was again physically ill-treated. They stopped when my lawyer arrived...” 17. As regards the alleged ill-treatment by the police, he stated that he had neither asked for medical assistance nor had he informed the investigating judge due to fear of further ill-treatment by the police. He had not seen how and what key had been used to open the door of the cellar because he had been, at that time, in the police car. He further stated that he had signed the search records in the presence of a police officer and two witnesses. He had voluntarily signed the confiscation records regarding the keys found in his possession. As regards the certificate of confiscation concerning the drugs he stated: “... I most probably signed it when they (police officers) gave me five sheets of paper to sign...” 18. The applicant’s lawyer requested that the court examine the applicant’s father regarding the place where the drugs had been found and title to the apartment. In a statement, the applicant’s father confirmed that the police had shown him two search warrants and that the search had been carried out in his presence and that of two neighbours. He also stated: “... I use other cellars in the building, namely two small cellars that I have constructed and another one which belongs to... When they did not find anything (in his cellars), a policeman ... entered cellar no.10, which is currently used by the sister of P.G., who owns the apartment and the cellar. After some time, policemen opened the padlock with the keys confiscated from [the applicant]... After half an hour, a policeman called me and said that he had found something in the cellar’s ventilation shaft... I saw a plastic bag. After he had taken the bags out, I noticed that there were seven bags. He put them on a metal sheet. Before doing so, he called the witnesses, namely the two neighbours, who confirmed what they were looking at. They called my son Duško. When he arrived, [the police officer] told him to stand next to the metal sheet in order for him to be photographed. Actually, he pushed him against the metal sheet and then [the applicant], in order not to fall down, touched the metal sheet with his hands. Thus, he touched the packages. They photographed him with the packages and took him away again. Then they brought the dog. Then we went upstairs to the apartment. [The police officer] forced me to sign the record that the packages had been found in cellar no.10, which I did. That meant that they did not find anything in my place, but in the [cellar belonging to] apartment no.10...” 19. As indicated in the record, the applicant’s father reiterated that cellar no.10 had been opened with a key found in the applicant’s possession, which belonged to another padlock. He also stated: “I want to say that two keys of ours (the applicant’s and his) fitted in that padlock. [The police officer] actually opened (the padlock) with one of my keys and found out that one of the keys that Duško had fitted in the padlock. [They] were a pair, of which I had one and Duško had the other.” 20. The applicant’s father also stated that the police officer had not been wearing gloves when he had taken the packages out. He had put gloves on later. 21. In his concluding remarks made at the trial, the applicant’s lawyer objected that no search warrants had been issued regarding the personal search of the applicant and the search of cellar no.10. In the absence of any eyewitnesses, there had been no direct evidence that would link the applicant with the drugs, which had been hidden in a cellar that had belonged to a third party and could have been opened with any key. He also argued that the applicant’s fingerprint had been secured in the absence of an expert and that the police had sought an expert examination ex post facto. He maintained that expert report SK-164/2003 (see paragraph 12 above) had been unclear and imprecise because it had contained no information as to the manner and circumstances under which that fingerprint had been secured. Furthermore, it would have been impossible for the applicant to manipulate the packages with only one finger. He further argued that no fingerprints had been found on the padlock and the cellar where the drugs had been found. 22. He also challenged the expert examination of the substance found in the packages, arguing that the latter had been too small to contain compacted material in the quantity indicated in the expert report X-164/2003 (see paragraph 11 above). In this connection he argued that it had not been established the place and person who had determined the quantity of the substance. He also submitted that the expert examinations had been carried out in his absence. Furthermore, he challenged whether the substance found had been pure heroin. In this connection he also stated: “I think that the problem [arising from] the practice that the prosecuting body also carries out expert examinations means that the evidence [obtained thereby] is not impartial.” 23. On 20 March 2003 the trial court convicted the applicant, who had a previous criminal record (suspended prison sentence for an act of violence), of drug trafficking and sentenced him to two-and-a-half years’ imprisonment. The court established that he had stored, with the aim of offering for sale, the five packages containing 2.296kg of heroin found in cellar no.10. The court held inter alia: "Cellar no.10 where the drugs were found had been locked with a padlock that could be open with any keys besides the original ones. The court established these facts on the basis of admitted written evidence ... The expert examinations of [the Bureau] confirmed that the substance found in the compacted packages was 2.296kg heroin. The expert examination confirmed that the fingerprint, which had been found and secured during the on-site examination, corresponded to the accused’s right middle finger ... The court examined the arguments presented by the defense ...., but it finds that they are unsubstantiated because the court established ... that the written evidence, notably the record concerning the search of home and other premises had been drawn up in lawful procedure in the presence of two witnesses and on the basis of a search warrant issued earlier. The attending witnesses are neighbours who were present there by accident and whom [the applicant’s father] knew. The court established that the accused had signed the certificate for confiscated property without any qualification. He did not contest his signature. The court examined the arguments of [the applicant’s lawyer] that there were no witnesses to corroborate that the accused had hidden the drugs in order to offer it for sale and that the accused could not be brought in connection with the drugs hidden in a cellar that did not belong to him, but (the court) dismissed those arguments on the basis of a written evidence, notably the (fingerprint) expert opinion by [the Bureau], which confirmed that the fingerprint corresponded to the [applicant’s] middle finger. Accordingly it is irrelevant that the drugs were found in the cellar belonging to a third person. The court examined the statement produced by [the applicant’s father] according to which the police officers had pushed his son against the metal sheet where drugs had been put and that, in order not to fall down, he had touched (the packages) but it gave no weight because the responsible police officers acted in compliance with their official duty and after they had found the drugs they photographed him next to (the packages). There was no reason for them to push the accused or to secure evidence with the use of force. The father’s statement was biased because it concerns his son and it is understandable that he wants to help [the applicant] avoid criminal liability ...” 24. In an appeal of 17 June 2003, the public prosecutor complained that the sentence given to the applicant had been too lenient. 25. On 24 July 2003 the applicant appealed against the trial court’s judgment, arguing that his conviction had been based on inadmissible evidence, namely there had been no court warrant authorising the search of cellar no.10 and the expert examinations of the substance and the fingerprint found on one of the packages in that cellar. He reiterated his complaints regarding the quality and reliability of the fingerprint expert evidence (see paragraph 21 above). In this connection he complained about the trial court’s failure to examine the police officers who had secured his fingerprint in his absence, as well as the experts who had drawn up report SК-164/2003 and requested that they be examined. He further argued that the trial court could not have validly based its judgment on those expert examinations since they had been carried out by the Bureau, a body that operated within the Ministry, which had set in motion the criminal proceedings against him. Accordingly, the examinations had been biased. He also sought to have alternative expert examinations conducted. That concerned both the fingerprint expert evidence, which according to him, had been the sole evidence linking him with the drugs, as well as the expert examination of the substance. As to the latter examination, he reiterated his complaints raised in the concluding remarks (see paragraph 22 above). 26. The applicant also requested that the court examines the neighbours (providing their names and addresses) who had attended the search regarding his allegations that his fingerprint found on one of the packages had been the result of an argument which he had had in the cellar with the police after he had refused to comply with their order to touch the packages. 27. At a public session held on 20 May 2004 in the presence of the applicant and his lawyer, the Skopje Court of Appeal dismissed the appeals and upheld the trial court’s judgment. It held that: "... the evidence admitted at the trial on which the judgment was based do not contain such deficiencies so as to be regarded unlawful evidence that cannot serve as a legal basis for the judgment, within the meaning of section 15(2) of the Act. As evident from the case-file, the search of the accused’s home and other accompanying premises ... and the personal search of the accused were carried out in accordance with the (relevant) statutory provisions ... The search of the home and other premises was carried out by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, in accordance with sections 198, 199 and 200 of the Act. The personal search of the accused was carried out without a court warrant and in the absence of witnesses, but it was done by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment was based. The court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence; however, the Ministry has competence to request expert examinations ... ... On the basis of admitted evidence, especially that the accused was in possession of the keys from the door of the cellar; [the applicant’s] fingerprint found on one of the packages containing drugs and the certificate for confiscated property signed by the accused, the trial court had undoubtedly established [the applicant’s] identity as the perpetrator of the criminal offence ... The court examined the complaint regarding the quantity and composition of the drugs, but it dismissed it finding that the trial court had established [the quantity of the drugs], on the basis of the expert opinion by [the Bureau], which applied (it gave a description of the used methodology). The court dismissed the complaint regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which had been authorised to carry out expert examinations, as specified in section 234(2) of the Act ... (furthermore, the expert reports) ... had been based on scientific methods, which enable valid results ... on the basis of the case-file, it can be established that after the competent officials had discovered the criminal offense, (they) secured evidence which had been transmitted to [the Bureau] whose experts had determined [the applicant’s] identity applying the system of automatic search of fingerprints. The court considered the complaint regarding the examination of [the neighbours] as witnesses ... but it dismissed it because ... [the neighbours] had signed the search records without any objection, which means, for all practical purposes, that they had confirmed [the record’s] veracity regarding the search. Accordingly, it is not necessary for them to be examined ..." 28. On 6 July 2004 the applicant lodged an application for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that there had been no direct evidence corroborating his guilt. In this connection he reiterated his complaints that cellar no.10 had been searched without a court order; that the trial court should have summoned the experts and police officers regarding his fingerprint; and that the Court of Appeal had wrongly found that their examination and the examination of the neighbours would have been irrelevant. In this connection, the applicant’s lawyer stated that: “... the (police) officers present in cellar (no.10) forced [the applicant] to touch the packages in order to confirm whether they [contained] compacted [material]. [The applicant] refused to comply with the officers’ order to touch the packages and due to the mass of people pushing each other (поради настаната мешаница и турканица), he was again taken to the police station. The same method of treating [the applicant] continued in the police station, where he was forced to touch the packages in order to obtain his fingerprint [on them]...” 29. He further reiterated his concerns regarding the quality and impartiality of the expert examinations carried out by the Bureau (see paragraphs 21, 22 and 25 above) and sought alternative expert examinations of the fingerprint and heroin found. 30. On 2 November 2004 the Supreme Court dismissed the applicant’s application and confirmed the lower courts’ judgments. The relevant parts of the judgment read as follows: "... the evidence admitted at the trial on which the judgment was based do not contain such deficiencies so as to be regarded unlawful evidence that cannot serve as a legal basis for the judgment, within the meaning of section 15(2) of the Act. The lower courts correctly established that the search of the accused’s home and other accompanying premises ... and the personal search of the accused had been carried out in accordance with the (relevant) statutory provisions ...The search of the home and other premises, as evident from the admitted written evidence, was carried out, according to this court, by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, which implies that sections 198, 199 and 200 of the Act had been respected. It is true that the personal search of the accused was carried out without a court warrant and in the absence of witnesses, but the lower courts correctly held that such measures had been taken by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment could be based. The Supreme Court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence, but it dismissed them as unsubstantiated. The court had decided in compliance with section 234(2) of the Act ... [The court] cannot accept the allegation raised in the extraordinary review request regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which could be requested to carry out expert examinations, as specified in section 234(2) of the Act ... The Supreme Court considers that in the ordinary proceedings the trial court decided in accordance with section 339(2) of the Act. In establishing the facts, it had into consideration and assessed all evidence admitted at the trial, i.e. it assessed the evidence separately and taken together, and on the basis of such assessment, it drew conclusion if certain fact was established ... In view of the foregoing, it is clear that in the ordinary proceedings all legally relevant facts were correctly established ..." 31. On 17 February 2005 the public prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court.