CASE OF STOIMENOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (applicant);Non-pecuniary damage - claim dismissed (members of the applicant's family);Costs and expenses partial award - domestic proceedings
Peer Lorenzen
5. The applicant, Mr Jordan Stoimenov who was born in 1963 and lives in Vinica, in the former Yugoslav Republic of Macedonia. 6. On 30 January 2000 the Ministry lodged with the public prosecutor a criminal complaint against the applicant and four other persons for the unauthorised production of, and trade in, drugs and narcotic substances, which was an offence under section 215 of the Criminal Code. 7. On 28 January 2000 the Forensic Science Bureau (Управа за криминалистичка техника) (“the Bureau”) at the Ministry drew up an expert report (no. X-121/2000) on the quality of poppy-tar that had been confiscated from Mr I.P. According to this opinion, all 23 cakes of poppy-tar contained substances which indicated that it was opium. 8. On 30 January 2000 another expert opinion (no. X-122/2000) was issued concerning the quality of 12 cakes of poppy-tar that had been confiscated from Mr M. 9. Both expert opinions were given by the same expert at the Bureau, were almost identically worded and provided succinct information about the technique used to determine the composition of the poppy-tar and the conclusion that it was opium. They read, inter alia, as follows: “... [S]everal tests were carried out on the samples of the substance. Positive results were received as to the existence of alkaloids... A chromatography analysis was made of the samples to determine the chemical composition of the substance. Samples of several alkaloids from our collection and a sample of opium were used for comparison... The analysis of the chromatogram revealed that it was identical to that of the opium, i.e. that the analysed substance contained several alkaloids... The analysis led to the conclusion that the unidentified substance was opium.” 10. According to depositions taken on 30 January 2000 in the pre-trial proceedings, the applicant stated, inter alia: “... When I was a child, I heard from my grandmother and grandfather that they used to have in their possession poppy-tar which they used for medicinal purposes. Mr D. [the third accused] asked me on several occasions whether they still had any... I went to see Mr M. [the first accused], my uncle, and told him about this. We both searched the cellar in my grandfather's house where my uncle used to live. We found about 12 kg of poppy-tar in a plastic bag... I gave the bag to Mr D... The agreement was to divide the money from the sale of the poppy-tar into three parts if Mr D. sold it. He said that he could sell it for 30,000 German marks (DEM)... Some time later Mr D. said that the poppy-tar was of poor quality, as it had been mixed with soil and had [therefore] been difficult to sell. I asked him to return it if he could not sell it so that I could put it back where it came from. However, Mr D. did not return the poppy-tar... Once I visited his house, but he was not there... Mr M. did not know that there was poppy-tar in the cellar. The idea to search for it was mine and I was incited to do so by Mr D...” 11. Mr D. stated, inter alia: “...Jordan [the applicant] told me that he had some 40-50 year old poppy-tar and asked me if I could find a buyer... He said that the price was DEM 40,000... After a while I met with Mr M.G. [the fourth accused] and asked him whether he could find a buyer for the poppy-tar... A week or two later, Mr M.G. came to my house and told me that he could find a buyer and asked me for a sample... Mr M.G. said the price was too high... I met Jordan and asked him to take the poppy-tar as there was no one interested in buying it at that price. However, Jordan did not come because of the bad weather: it was snowing. On 27 January 2000 Mr M.G. came to my house and told me that he had found a buyer. On 28 January 2000 Mr M.G. came accompanied by Mr I.P. [the fifth accused] ... and said that a buyer from Skopje had offered DEM 2,500 per kg of poppy-tar...” 12. On 18 February 2000 the public prosecutor lodged an indictment (обвинителен акт) with the Kočani Court of First Instance against Mr M., the applicant, Mr D., Mr M.G. and Mr I.P. They were charged with having been in possession in the spring of 1999 of about 14 kg of opium and on 28 January 2000 of offering for sale and selling about 8.7 kg of opium. The charges were based, inter alia, on the statements of the accused in the pre-trial proceedings and the expert opinion no.X-121/2000 dated 28 January 2000. 13. At the trial on 9 March 2000, Mr D.S., the applicant's grandfather stated, inter alia: “... the poppy-tar was collected by my parents and my wife. I cannot say where it was stored. Maybe it was buried; there was a war. It was the period between 1941 and 1955; people said that it was of poor quality. I have never seen the poppy-tar nor do I know where it was stored. I never told Jordan or Mr M. where it was, nor did they ask me about it... I offered the poppy-tar for sale to the Bilka company, but it turned it down as it was of poor quality. This happened after the Second World War, but I cannot say when exactly...” 14. The applicant's representative lodged a request for an alternative expert opinion to be obtained from a scientific institution concerning the quality of the poppy-tar for the following reasons: the Bureau operated within the Ministry, which had lodged the criminal complaint against him; the poppy-tar was old and had been buried for many years; and an authorised organisation had refused to buy it as it was of poor quality. The counsel representing the other persons accused made a like request. 15. At the hearing on 10 March 2000 the court refused the request for another expert opinion. In his concluding remarks the applicant's representative reiterated, inter alia, his arguments about the poor quality of the poppy-tar and about the report drawn up by the Ministry. 16. The same day the Kočani Court of First Instance gave judgment. It found the applicant and the other accused guilty and sentenced them to terms of imprisonment of three to four years. The applicant obtained the longest sentence (four years' imprisonment). All other four defendants received sentences below the statutory minimum for crimes of that kind (5 years) on the ground that they had no previous convictions and some of them were young and/or had not played a crucial role in the crime. 17. The trial court found that the applicant and his uncle Mr M. had found 14.4 kg poppy-tar in the latter's cellar, i.e. opium belonging to Mr M.'s father, who had kept it from the Second World War. They had agreed to keep the opium at Mr M.'s house and to prepare it for sale. Later, the applicant had offered about 8.7 kg of the poppy-tar for sale to the third accused, Mr D., whose task was to find a further buyer. Then Mr D. and the fourth accused, Mr M.G., had checked the quality of the opium and given it to the fifth accused, Mr I. P., whose task had been to sell the drugs to Mr N.N., an unidentified final buyer from Skopje. As Mr I.P. feared detection, he had tried to escape and had thrown the bag with the opium out of his car. He was later arrested by the police and the bag containing the opium was found. 18. The court found that the accused had acted in concert, namely that the applicant had firstly found the opium and then offered it to Mr D., who had offered it to Mr M.G. The opium was finally offered for sale to Mr I.P., the fifth accused. The court made reference in its decision to the statements of the applicant and the other accused in the pre-trial proceedings concerning their roles in the crime. It also referred to the applicant's statement at the hearing, but disregarded it as self-serving. The testimony of several witnesses and items of real evidence were also taken into account, along with the expert opinions nos. X-121/2000 and X-122/2000 provided by the Bureau. 19. The court held that the poppy-tar, a term used by the accused, was in fact opium, the production of and trade in which was classified as a criminal offence. It based its findings entirely on the written expert opinion provided by the Bureau, stating inter alia : “... the court established that it was a psychotropic substance on the basis of the written evidence, namely the expert opinions nos. X-121/2000 and X-122/2000 submitted by the Bureau, in which it was definitely indicated that it was opium containing several alkaloids...” 20. It noted that the Bureau was a state body authorised to perform such expert examinations and that section 234(2) of the Criminal Proceedings Act did not prohibit it from providing such an expert opinion. It further stated: “...The court disregards the defence's argument that the opium was of poor quality i.e. what its quality and [opium] percentage was, because the expert report undoubtedly established that it was opium containing all the necessary substances to be considered a psychotropic substance...” 21. In his appeal, the applicant complained, inter alia, of the trial court's refusal to order an alternative, independent analysis of the quality of the poppy-tar. He claimed that it was not a type of opium prohibited by law, but poppy-tar that had been buried for a long time and that moisture was known to destroy its morphine content. In support of his arguments about the quality of the poppy-tar, he noted that after the Second World War its owner, Mr M.'s father, had been unable to sell it to an authorised buyer because it was of such poor quality. As it had not been properly stored its quality had deteriorated over time. He considered that a chemical analysis was necessary to determine the quality of the poppy-tar and proposed an institution which in his opinion had the equipment necessary to make the required analysis. He also complained that the expert examination of the opium had been performed by the Ministry which had then brought the criminal charges against him. 22. The applicant also argued that the offence had been set up by a police agent provocateur and would never have been committed without his intervention (he claimed that the unidentified final buyer N. N. was that agent). He further argued that he had been wrongly convicted as he had voluntarily called off the sale of the opium at one point, when he had changed his mind and asked the third accused to give him the poppy-tar back. He also appealed against sentence. 23. At a public hearing held on 14 June 2000 the Štip Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. It found that the lower court had not erred in refusing the applicant's request for an alternative expert examination of the quality of the drug, as the expert opinion provided by the Bureau was unambiguous. It also noted that it was known that the older the poppy-tar, the better it was for opium use. It further stated that the expert examination by the Bureau had been carried out properly and that the lower court had relied entirely on the Bureau's report and had therefore dismissed the applicant's request for an alternative examination by another institution. 24. The Court of Appeal also found that although the identity of the final buyer of the opium had not been established, it was irrelevant to the applicant's conviction: he had been convicted for having the opium in his possession and offering it for sale. It did not accept the applicant's assertion that he had decided not to proceed with the offence, finding that the lower court had correctly based its findings on the applicant's statements in the pre-trial proceedings in which he had described the whole event and had made a confession. It also found that the applicant had failed throughout the proceedings to put forward any evidence in support of his allegations. 25. In a request to the Supreme Court for extraordinary review of a final decision (барање за вонредно преиспитување на правосилна пресуда), the applicant referred to the complaints he had already raised in his appeal. 26. On 12 April 2001 the Supreme Court dismissed the applicant's request for extraordinary review and upheld the lower courts' decisions. It found that the lower courts had not erred in establishing the facts and evaluating the evidence concerning the applicant's assertion that he had decided not to proceed with the offence. 27. As to the applicant's complaint that his defence rights had been violated as the trial court had refused to order an alternative expert examination of the quality of the poppy-tar, the Supreme Court stated: “... such complaint is ill-founded because the trial court could reasonably establish on the basis of the expert opinion provided by the Ministry of the Interior that it was opium of good quality. There were no doubts in the expert opinion that would have warranted ordering a fresh examination or an opinion by other experts. The expert opinion submitted by the Ministry of the Interior does not contain any shortcomings or deficiencies which would raise reasonable doubts as to its validity...” 28. On 12 April and 2 November 2001 the Supreme Court dismissed the applicant's request for extraordinary mitigation of the penalty imposed (барање за вонредно ублажување на казната). 29. The Government have also indicated that on 29 May 2002 the Supreme Court rejected a second request by the applicant for extraordinary review of the final decision. 30. In accordance with section 234(1) and (2) of the Criminal Proceedings Act (“the Act”), an expert examination is requested by a written order of the body which carries out the procedure. The order specifies the facts for which the examination is required and the person appointed to perform it. If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, is as a rule entrusted to that institution or body. The institution or body appoints one or more experts to carry out the expert examination. 31. Section 243 of the Act provides that the opinion of other experts must be ordered if the expert opinion already given contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by referring to the experts who gave the opinion.