CASE OF ASANI 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) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)
Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicants were born in 1979 and 1984. They are currently serving life sentences imposed in the impugned proceedings described below. 6. On 18 May 2006 at 11.45 p.m. several persons arrived by car in front of an Internet café in Skopje and opened fire with machine guns. According to an expert report admitted in the ensuing proceedings, around 70 bullets were fired towards the café. In the incident three children were killed and six people were seriously injured (“the victims”). 7. Following a criminal complaint for murder lodged against unknown perpetrators, on 3 August 2006 the public prosecutor requested that an investigating judge question the victims and a certain B.H. who had allegedly been present at the scene at the time of the shooting. 8. Between 6 and 19 December 2006 the investigating judge heard oral evidence from the victims and other witnesses. None of them identified the applicants as the perpetrators. Some victims, as well as other witnesses who had arrived at the scene immediately after the shooting, stated that there had been no street lighting and that visibility had been considerably impaired. The investigating judge also heard oral evidence from M.M., who had sold the car used in the incident to two people whom he didn’t know and “would not recognise if I (he) were to see them now”. He stated that a certain F. had introduced him to the buyers. 9. During the investigation, there were several unsuccessful attempts by the investigating judge to summons B.H. Assistance from the police was also sought. Having been alerted to the summons and the police inquiry, B.H. appeared in court to testify before the investigating judge. On 27 February and 23 March 2007 he confirmed that he had been present at the scene at the time of the incident and that he had been shot in the upper leg. He had fainted and had spent time recovering in a private hospital outside the respondent State. He stated that there had been four people in the car and that all had fired on the café. He identified a certain Dz. as the driver of the car. He also alleged that he himself had been the most likely target of the attack owing to his alleged involvement in the killing of the applicants’ brother, which had happened at the beginning of 2006. In that context, he had received threats that he would be killed. 10. On 4 May 2007 two people who had been eye-witnesses to the incident gave oral evidence in the presence of the investigating judge and the public prosecutor. They testified as anonymous witnesses (сведок со прикриен идентитет) under the pseudonyms “Korab” and “Vodno”. The latter asked not to have his identity revealed for the following reasons: “the people who committed the crime are violent and have a criminal record and that’s why I’m afraid of their threats; they are armed, convicted, I fear for my life and the life of my family, I fear reprisals.” 11. On photographs shown in evidence, both witnesses identified one of the applicants as having fired on the café and Dz. as the driver of the car. “Vodno” also identified the other applicant as having fired on the café. He stated that three people (including the applicants) had fired weapons in the incident of 18 May 2006. 12. On 11 May 2007 another individual was examined before the investigating judge and the public prosecutor under the pseudonym “Vardar” for the same reasons as the witness “Vodno”. He confirmed that Mr Ramiz Asani (the applicant) had bought the car used in the accident from M.M. He also stated that after the incident Mr Ramiz Asani had told him the following: “what you’ve seen and heard on television about the incident with M.M.’s car – I did it in revenge for the killing of my brother ...” 13. On the same date, the investigating judge opened an investigation against the applicants and Dz. on reasonable suspicion of murder. The applicants, who had in the meantime been arrested, were remanded in prison custody. On a later date the investigating judge suspended the investigation in respect of Dz. as he had proved to be untraceable. 14. In an indictment of 13 August 2007, the public prosecutor accused the applicants − who had no previous record, but had criminal proceedings in relation to other charges pending against them − of having fired machine guns at the Internet café with the intention of killing B.H. The prosecutor requested that the trial judge examine the victims and several witnesses − including B.H. and M.M., and the anonymous witnesses − and to admit other material evidence in evidence, including post-mortem reports and other expert reports. 15. At the trial, the applicants, represented by two lawyers, unsuccessfully requested that evidence produced by the anonymous witnesses be rejected and that the written transcripts of their depositions be excluded from the case file. The trial judge, however, granted their request for witnesses “Korab” and “Vodno” to be questioned at the trial. The examination was carried out at a hearing of 21 January 2008 in the presence of only the trial judge and the public prosecutor, as provided for in the Criminal Procedure Act in force at the time (see paragraph 24 below). Both witnesses repeated the statements they had given before the investigating judge and reiterated their fear of negative repercussions. Their statements were read out at the trial in the presence of the applicants. A written transcript of their depositions was communicated to the applicants who, at their request, obtained a ten-day grace period in which to prepare written questions to be put to these witnesses by the court. The applicants formulated seven questions to be put to each witness. Both witnesses replied, again in the presence of only the trial judge and the public prosecutor. “Korab” stated that only one person had fired, while according to “Vodno” three people had fired at the café. Both witnesses submitted that, despite the impaired visibility, there had been sufficient light to see the applicants. A transcript of their replies was communicated to the applicants. 16. The trial judge further examined M.M., who did not recognise Mr Ramiz Asani as the buyer of the car used in the incident. He also heard oral evidence from three of 25 witnesses proposed by the applicants regarding their whereabouts at the time when the crime was committed. All three witnesses corroborated the applicants’ version of events, namely that they had been in another local café at that time. 17. Since the identity of witness “Vardar” had been disclosed in the proceedings (F.S.), the trial judge granted the applicants’ request for him to be questioned again. At a hearing held on 1 April 2008 in the presence of the applicants, F.S. denied that he had testified as an anonymous witness. He denied that the applicants had bought the car from M.M. He alleged that he had been beaten by the police in order to tell the investigating judge that the applicants had bought the car (see paragraph 12 above). 18. At the same hearing, the trial judge read out B.H.’s pre-trial statement (see paragraph 9 above). The judge did so after having tried on several occasions to secure his attendance at the trial and having inquired with the police about his whereabouts. It was noted that, according to official notes in the case file, B.H. was untraceable. The record of the hearing did not specify that the applicants objected to the reading of the statement. 19. During the proceedings, the trial judge granted the applicants’ request for a face-to-confrontation with the experts who had carried out the ballistic examination. He did not, however, allow an additional ballistic examination and refused to admit further evidence regarding the intensity of the street lighting at the scene at the relevant time (the applicants alleged that the street light had been too low to allow the anonymous witnesses to see the assailants). In their concluding remarks, the applicants claimed that B.H. was in the respondent State and had been involved in incidents relating to the parliamentary elections of 1 June 2008. 20. On 23 June 2008 the trial court delivered a judgment in which it found the applicants guilty of murder and sentenced them to life imprisonment. The applicants’ presence at the scene when the incident happened, as well as the development and dynamics of events, was established on the basis of the testimony of the anonymous witnesses “Korab” and “Vodno”, which the court regarded as credible and consistent despite “small differences which were due to the intensity of the shooting and fear for their lives”. The court also gave weight to the statement given by F.S. in the pre-trial proceedings under the pseudonym “Vardar”. It disregarded his statement of 1 April 2008 (see paragraph 17 above), finding that it had been given under duress and the threat that he or his family would be killed. In this connection it referred to a police report of 24 January 2008 according to which F.S. had been visited several times by unknown people who had threatened him and his family about the testimony given in the pre-trial proceedings. The motive for the crime was established on the basis of the statement given by B.H. in the pre-trial proceedings. That witness had not been examined at the trial since he had been untraceable. In that context, the trial court referred to an official note by the police of 9 January 2008 informing the court that B.H. had fled the respondent State and that an arrest warrant (потерница) had been issued against him. The court did not say anything regarding the applicants’ allegations that B.H. had in fact been in the respondent State and could have been located (see paragraph 19 above). In the court’s view, the evidence produced by the defence witnesses was unreliable and aimed at enabling the accused to avoid criminal responsibility. For this reason it considered it irrelevant to examine the remaining witnesses proposed by the defence. The applicants’ defence that they had been at another location at the relevant time was found to be selfserving. 21. In public hearings held on 10 October 2008 and 25 September 2009 (latter judgment served on the applicant on 5 January 2010) respectively, the Skopje Court of Appeal and the Supreme Court upheld the applicants’ conviction and the sentence imposed on them. They dismissed appeals lodged by the applicants in which they complained inter alia that the trial court had failed to admit evidence proposed by the defence, that their conviction could not be based solely on the statements of the anonymous witnesses, which had been unlawfully obtained, and that the trial court had not examined B.H. notwithstanding their claims that he would have been available for examination. In this connection they argued that it had been an issue of public record that in the election incidents of 1 June 2008 B.H. had been wounded and hospitalised and later detained by the police. 22. The courts held that the evidence produced by the anonymous witnesses had been lawfully obtained and that the applicants’ opportunity to put written questions to them had secured their defence rights. The fact that the witnesses had only produced evidence a year after the incident had been due to their fear. Furthermore, they stated that the applicants’ conviction had not been based solely on the evidence produced by those witnesses. In this connection they found that the trial court had admitted other evidence, both documentary and verbal. As regards the evidence produced by B.H., the courts held that the trial court had tried to secure his attendance at the trial, but he had been unavailable for examination, as described in the police note. The higher courts also endorsed the trial court’s finding regarding the applicants’ motive for committing the crime, as established on the basis of the evidence produced by B.H. That had been confirmed by the pre-trial statement of witness F.S. given under pseudonym “Vardar” (see paragraph 12 above). 23. On 2 December 2010 Dz. was found and detained. In subsequent criminal proceedings, he was convicted of murder and sentenced to fifteen years’ imprisonment.