CASE OF SOLAKOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Art. 6-1;No violation of Art. 6-3-d
Christos Rozakis
8. The applicant, who had lived for a while in the United States of America, was suspected of drug trafficking and a warrant for his arrest was issued by the United States police in January 1996. 9. Following the request of the United States authorities, on 15 August 1997 the public prosecutor asked the Skopje Municipal Court to institute a preliminary investigation against the applicant on charges that between January 1992 and May 1995 he had smuggled around 10.5 kg of drugs from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and that for that purpose had set up a drug-trafficking network involving also his son, who lives in the United States. The prosecution’s request set out the names of the persons involved and against whom criminal proceedings were pending or completed in the United States and asked for their questioning. 10. On 30 September 1997 the investigating judge opened a criminal investigation against the applicant, decided to hear the witnesses proposed by the prosecution and detained the applicant on remand. 11. On 1 October 1997 the investigating judge asked the Ministry of Justice to contact the United States government and to request their assistance in the hearing of some witnesses in their country. On 10 October 1997 the Ministry of Justice addressed the request to the United States embassy. 12. On 7 November 1997 the United States embassy was informed by the investigating judge of the investigation pending against the applicant. The notice contained the names of the witnesses to be examined in the United States and a list of fifteen questions to be put to them. 13. On 28 November 1997 the applicant’s lawyer was informed that the investigating judge would go to the United States one week later and was summoned to the hearing. 14. On 1 December 1997 the lawyer was denied a visa for the United States on the ground that he had not produced all the relevant documents required. The United States embassy informed him that it would review his application for a visa provided that he submitted a certificate of his working position, income, and seniority and evidence that he owned real estate and had family ties in the Former Yugoslav Republic of Macedonia. The lawyer never reapplied for a visa. On 2 December 1997 the applicant withdrew his power of attorney. 15. On 3 December 1997 the applicant appointed another lawyer, who, on the same day, was summoned to attend the hearing of witnesses in the United States, scheduled for 8 December 1997. On the summons, the lawyer placed his signature in the space provided for the bailiff’s signature and the bailiff placed his signature in the space provided for the lawyer’s signature. 16. On 4 December 1997 the applicant was questioned. He stated that he had been informed by the investigating judge that witnesses would be heard in the United States. He had contacted his second lawyer and left to him the decision whether or not to attend the hearing. He further stated that the expenses for the trip would not be a problem as he had sufficient funds to cover them. 17. On the same day the investigating judge informed the United States embassy in the Former Yugoslav Republic of Macedonia that on 28 November 1997 the applicant’s first lawyer had been summoned to attend the questioning of the witnesses in the United States and that the applicant’s second lawyer had declared that there was no need to attend the questioning and that he had insufficient funds to meet the travel expenses. 18. On 8 and 9 December 1997, five witnesses were heard by the investigating judge in the presence of the public prosecutor and the court interpreter. Their testimonies were recorded. The witnesses were involved in the drug-trafficking network organised by the applicant, and they were all serving prison sentences in the United States for drug trafficking. 19. According to the witnesses, who were under oath and were heard separately, it was the applicant who had set up the entire network and who had organised the smuggling into the United States and the re-sale there of approximately 10.5 kg of drugs. The applicant had contacts in Bulgaria, from where he would smuggle the drugs into the Former Yugoslav Republic of Macedonia. He would then arrange for them to be smuggled into the United States. Some of the witnesses stated that they had smuggled the drugs in a plaster-cast which the applicant would wrap around one of their legs, as though it were broken. On their arrival in the United States they would hand over the drugs to the applicant’s son in return for payment. Some of the witnesses stated that they had had an agreement with the applicant and his son for drug dealing and had been supplied with the drugs in the applicant’s and his son’s house. 20. Two of the witnesses who had travelled to Bulgaria on separate occasions gave evidence that they had been taken into Mr Robert M.’s flat in Bulgaria, where Mr Robert M. and the applicant had wrapped plasters with drugs around one of the witnesses’ legs. None of the witnesses made any statement regarding Mr Angel B. 21. On 22 December 1997 the public prosecutor indicted the applicant with drug trafficking from Bulgaria and the Former Yugoslav Republic of Macedonia to the United States and with setting up an international network for that purpose. The witnesses’ statements were included in the indictment. On 29 December 1997 the applicant was released. 22. On 1 January 1998 the applicant made a submission to the Municipal Court that there was no case to answer as there was no convincing evidence against him. In particular, the indictment was predominantly based on the testimonies of the witnesses who were serving prison sentences in the United States and who had not been cross-examined by the defence. The applicant argued that the witnesses had a deal with the United States authorities to have their sentences reduced in exchange for their cooperation. On the one hand, since they had already been convicted in the United States, the witnesses were aware that they would not risk anything if they gave false evidence, as they could not be prosecuted for drug trafficking under the law of the Former Yugoslav Republic of Macedonia. On the other hand, if they modified their testimonies, they ran the risk of losing all the benefits which had been agreed upon by the authorities. 23. On 12 January 1998 the court held that on the basis of all the evidence in the case there was a reasonable suspicion that the applicant might have committed the offence with which he had been charged and refused to terminate the criminal proceedings against him. 24. On 13 January 1998 a hearing was held before the Skopje Municipal Court. On 22 January 1998 a second hearing was held. The applicant claimed to be innocent and stated that he had not travelled to the United States because he knew that it might be dangerous for him. Photographs showing the plaster-cast, belonging to a person involved in the drug dealing with the applicant, in which drugs had been found, photographs of the witnesses, reports on the search of the applicant’s son’s and another witness’s flat where some drugs had been found and the reports on the investigation in connection with the applicant’s son and his pre-trial detention were, inter alia, examined. 25. The applicant complained that he had been unable to cross-examine the witnesses. He also objected to their statements being read out in open court. The court decided to read out in open court the statements of the witnesses examined in the United States, because “to secure the attendance of the witnesses is extremely difficult and there are also other important reasons”. The applicant challenged the witnesses’ statements without pointing out concretely why they should not be considered trustworthy, or specifying the questions that he would have liked to be put to the witnesses. 26. At the hearing of 22 January 1998 the applicant requested that two additional witnesses for the defence be examined. The record of the hearing states as follows: “... the applicant’s lawyer asked the court to gather information about Mr Robert M., in particular regarding his place of residence, whether Mr Robert M. was charged with being one of the co-organisers [of the drug trafficking] with the accused, [and if so] to obtain his case file, and to call him as a witness. He also called the witness, Mr Angel B., from the village of Kompliven, Bulgaria, to give evidence on whether he knew the accused and Mr Robert M., whether he had ever been in Mr Robert M.’s flat with the accused, whether he knew if the accused had been supplied with drugs (amphetamines), whether he knew some of the prosecution witnesses, etc. ...” The Skopje Municipal Court refused the motion on the ground that “the court [had] sufficient evidence before it to reach its verdict”. 27. On 26 January 1998 the municipal court found the applicant guilty of drug trafficking within the meaning of Article 255 § 2 of the Criminal Code and sentenced him to ten years’ imprisonment. The court dismissed the applicant’s objection that there had been a breach of his right of defence in that he had been unable to cross-examine the witnesses, on the ground that it had been impossible to summon them. It considered the witnesses’ statements reliable, since they had had no opportunity to make a deal with the public prosecutor of the Former Yugoslav Republic of Macedonia to have their sentences in the United States reduced in exchange for giving evidence against the applicant. The court further observed that all the witnesses had recognised the applicant on a photo and that, although each of them had been heard separately by the investigating judge in the presence of the public prosecutor, their statements were consistent and precise. The court also had regard to the applicant’s testimony. 28. On 26 February 1998 the public prosecutor submitted an appeal to the Skopje Court of Appeal (Апелационен суд) requesting an increase of the sentence in view of the nature of the offence committed, the degree of danger to the public, the fact that it concerned organised crime at international level and the fact that the applicant was a habitual offender. 29. On 6 March 1998 the applicant also filed an appeal with the Skopje Court of Appeal, complaining, inter alia, that the lower court had infringed the Code of Criminal Procedure and Article 6 of the Convention, as it had reached its verdict only on the basis of the statements of witnesses whom he had not cross-examined. The applicant further complained about the court’s refusal to hear two additional witnesses on his behalf. 30. On 20 May 1998 the Court of Appeal dismissed the applicant’s appeal on the ground that the Municipal Court had acted in accordance with Article 325 of the Code of Criminal Procedure, which stated that witnesses might be heard in the absence of the accused or his lawyer if there was a valid reason making it impossible or extremely difficult to do otherwise (see “Relevant domestic law and practice” below). The court found that the lower court had given a reasoned explanation why it was extremely difficult to cross-examine those witnesses at the public hearing. They had been heard only by the investigating judge and the public prosecutor, but the legal representatives of the applicant had been duly summoned for the examination of the witnesses and, therefore, had had a sufficient opportunity to attend the witnesses’ questioning. It held that the statements were consistent and logical and were corroborated by each other and by other evidence such as the reports from the searches carried out in the flat of the applicant’s son and of another witness. It also held that the two witnesses called by the defence were not relevant as they would not have contributed much to the establishment of the truth. The court granted the public prosecutor’s appeal and increased the applicant’s sentence to thirteen years’ imprisonment. 31. On 11 June 1998 the applicant filed an appeal on points of law (Барање за вонредно преиспитување на правосилна одлука) with the Supreme Court (Врховен суд). 32. On 2 July 1998 the Supreme Court dismissed the appeal on points of law on the grounds that the investigating judge had acted within his competence when he decided to interrogate the witnesses in the United States and that the applicant and his lawyers had been given an opportunity to attend the hearing. Furthermore, the Supreme Court held that it would have been impossible to have the witnesses heard at the public hearing, as they were serving a prison sentence abroad. Consequently, in accordance with the rules of the Code of Criminal Procedure there were sufficient reasons to justify the statements being read out at the public hearing. 33. On 6 September 1999 the applicant’s son declared before a notary that his father had had nothing to do with drug trafficking. Another person also declared before a public notary that the applicant had been engaged in trade with spare parts for motor vehicles. On 5 October 1999 the applicant applied to the Skopje Municipal Court to have his case reopened on the basis of those declarations. His application was dismissed on 27 October 1999. On 27 December 1999 that decision was upheld by the Skopje Court of Appeal. 34. Article 22 § 6, inter alia, provides that a bench of three judges of the first-instance court shall decide on appeals lodged against the decisions of the investigating judge. Article 382 § 1, inter alia, provides that a person shall have the right to appeal against the decisions of the investigating judge. 35. Article 66 §§ 2 and 5 provides that the president of the court may officially appoint a lawyer for a person who is detained pending trial. 36. Under Articles 69 and 124 a lawyer has the right to consult all the documents in the case file from the day the prosecution authorities request the investigating judge to open a preliminary investigation. A defendant enjoys that right from the day he has been questioned by the investigating judge. 37. Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation. Article 161 §§ 4, 5 and 7 reads as follows: “4. The prosecution, the defendant and the defendant’s lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ... 5. When the prosecution, the defendant and the defendant’s lawyer are entitled to be present ... at an interrogation of a witness by an investigating judge, they shall be informed of the time and place of ... the interrogation. If the defendant has been represented by a lawyer the investigating judge shall only inform the lawyer. ... 7. Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ...” Article 325 §§ 1, 2 and 5 reads as follows: “1. When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine him shall not be lost because the transcript of his statement is read out, or because he has already given a written statement. 2. As an exception ... a bench of judges may decide to read out the transcript of the witness’s statement ... if: (i) the person concerned has died, is mentally ill, cannot be found, or if his attendance is impossible because of old age, illness or any other important reason. ... 5. In the records of the public hearing, the court shall state the reasons why the transcript of the witness’s statement is read out and whether the witness ... took an oath.” As a matter of court practice, the fact that a witness is abroad has been considered as an “important reason” within the meaning of Article 325 § 2 (i) of the Code, as the court may have no effective means of securing his attendance at the public hearing. Article 326 provides that where necessary the court may, at its own discretion, decide to hear a tape-recording of the witness’s statement instead of relying solely on the transcript. 38. Article 274 §§ 1 and 2 reads as follows: “1. The parties shall have the right to call a witness ... or other evidence at the hearing even after the case is listed for a hearing. 2. If the President of the Chamber dismisses the request to call fresh evidence, the parties shall have the right to call the evidence at the public hearing.” 39. Article 392 provides that criminal proceedings may be reopened if, inter alia, a new fact or new evidence is adduced or called before the court, which may prove the convicted person’s innocence or militate for the reduction of his sentence. Article 411 § 1 reads as follows: “A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an appeal on points of law in the cases set forth in this Code.” Article 412 reads as follows: “The Supreme Court shall have jurisdiction to deal with such appeals.” Article 413 taken in conjunction with Articles 355 and 356 lays down that such appeals may be lodged on the ground that the courts have erred in law. Article 415 taken in conjunction with Article 408 provides that when the Supreme Court grants the appeal on points of law it may substitute its own verdict or quash the decisions of the lower courts and remit the case to them, or declare that the lower courts erred in law.