CASE OF ATANASOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1
Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
5. The applicant was born in 1959 and lives in Negotino. 6. On 22 November 2001 the public prosecutor requested an investigating judge of the Negotino Court of First Instance (“the trial court”) to open an investigation against the applicant on the count of forgery of a notice convening a meeting of shareholders of a company, N., in which he was also a shareholder (“the notice”). The applicant was accused of having deceived a considerable number of shareholders into signing the notice by misleading them in the belief that there would be only one item on the agenda, instead of eight, as was actually the case. The investigating judge heard the applicant and 47 witnesses. After the investigation had been completed, on 29 May 2002 the public prosecutor lodged an indictment against the applicant. 7. The trial court fixed twelve hearings, including that of 6 May 2004, which the applicant did not attend, although he had been summoned properly. During the trial, the court again heard oral evidence from the applicant, who had a court-appointed lawyer, and the 47 witnesses and admitted other documentary evidence. On 31 May 2005, in the presence of the applicant's lawyer only, the trial court convicted the applicant and sentenced him to four months' imprisonment suspended for one year. It did not rely on the statements made by the witnesses before the company's management denying that they had been informed about the remaining items on the agenda. The court rejected the applicant's defence as self-serving and the testimony of 6 defence witnesses as inconsistent and implausible. 8. On 13 July 2005 the applicant who, at the relevant time, was not represented by counsel, appealed against that decision. He did not request to be notified of the date of the session (седница) of the Court of Appeal. 9. On 2 November 2005 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. The court decided in private. The public prosecutor was present, but not the applicant. The court addressed the public prosecutor's written submission of 17 October 2005 and her oral pleadings requesting that the applicant's appeal be dismissed. 10. The decision was served on the applicant on 21 November 2005. 11. On 19 January 2006 the public prosecutor informed the applicant that there were no grounds for lodging a request with the Supreme Court for the protection of legality (“legality review request”). 12. Under section 361 (1) and (3) of the Criminal Proceedings Act (“the Act”) (Закон за кривична постапка), the chairman of the adjudicating panel of the Court of Appeal will appoint a judge rapporteur. The latter, in cases involving offences automatically subject to prosecution by the State, will forward the case file to the public prosecutor, who will examine and return it without delay. After receiving the case file, the chairman will fix a date for the session (седница) of the adjudicating panel. The public prosecutor will be notified thereof. 13. Section 362 (1) and (3) of the Act provides for notification of the date of session to be given, inter alia, to the defendant and his lawyer, the victim (as a plaintiff, тужител) and the private prosecutor (приватен тужител) if, within the period prescribed for the appeal or reply to the appeal, they so request or propose that a hearing (section 364 of the Act) be held before the second-instance court. Such notification may be given to parties who have not made such a request if their attendance would contribute to establishing the facts. The session starts with the presentation of a report prepared by a judge rapporteur. The panel may seek additional explanations from the parties attending the session. Parties can propose, with the aim of supplementing the report, that some documents from the case-file are read. They can also specify their arguments submitted in the appeal or reply to the appeal. 14. Section 364 (1) and (2) of the Act provides that the second-instance court will hold a hearing (претрес) only if new evidence needs to be produced or evidence re-produced, or if the case does not need to be remitted for fresh consideration. The defendant and his or her counsel, the public prosecutor, the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second-instance court. 15. Under sections 403-410, the public prosecutor can submit a legality review request in respect of a final decision. The public prosecutor is always apprised of the session of the Supreme Court, which decides the legality review request. If the court accepts the legality review request submitted in favour of a person convicted, it cannot amend the final decision to his or her significant disadvantage in respect of the legal qualification of the crime and penalty imposed. If the legality review request is lodged against the person convicted, the court can only acknowledge the violation without amending the final decision.