KOČEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
1. The applicant, Mr Kiril Kočevski, is a Macedonian national, who was born in 1947 and lives in Skopje. He was represented before the Court by Mr Ž. Hadži-Zafirov, a lawyer practising in Skopje. 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 10 September 1996 bankruptcy proceedings were opened against a formerly socially-owned company (“S.”). 5. On 13 March 2000, while the bankruptcy proceedings were still pending, the applicant was appointed acting manager of S. 6. By a decision which became final on 26 September 2000 the Skopje Court of First Instance upheld a claim (утврдува пријавено побарување) against S. in favour of a certain Mr D.T. (a former employee of S.) in the amount of 55,270 Macedonian denars (MKD). 7. On 24 December 2001 the bankruptcy proceedings against S. were stayed and consent (согласност) was given for proceedings to be instituted for the restructuring of S. under the Transformation of Socially-Owned Companies Act (see paragraph 30 below). 8. According to a document (аналитичка картица) issued on 26 December 2005 by S., Mr D.T. owed S. MKD 9,067,814. 9. On 28 April 2006 an investigating judge questioned the applicant and opened an investigation against him and four other people suspected of abuse of office (злоупотреба на службената положба и овластување). 10. At a hearing held on 30 November 2006, the trial court dismissed an application lodged by 203 former employees of S. to be represented as victims (оштетени) at the trial. It is not evident from the case file whether Mr D.T. was among those employees. 11. On 6 February 2007 the applicant was remanded in custody. Subsequently, he submitted several requests to be released on bail which were to no avail. In those requests he made no reference to his state of health. 12. On 22 February 2007 the Skopje Prison (“the prison authorities”) requested that the Skopje Court of First Instance (“the trial court”) allow the applicant to be medically examined as his health had deteriorated. The request referred to a note of the same date in which the prison doctor diagnosed the applicant as suffering from sindroma psihoorganicum incipiens (presumably early-stage psycho-organic syndrome). On 23 February 2007 Judge V.M. granted that request. No information was submitted as to whether the applicant was examined or the results of the examination. 13. On 1 March 2007 the prison authorities requested that the trial court allow the applicant to undergo a psychological examination. They referred to a note dated 28 February 2007, in which the prison doctor had made the same diagnosis (see paragraph 12 above). 14. At a hearing held on 12 April 2007, the applicant, who was represented by two lawyers, lodged his own request for his psychological examination. The trial court dismissed both requests on the grounds that they were not sufficiently detailed. At that hearing the court examined two witnesses. Тhe applicant questioned one of them. 15. On 30 April 2007 a three-judge panel of the trial court presided by Judge V.M. convicted the applicant and sentenced him to six years’ imprisonment. The court found that in the period between 2000 and 2002 the applicant had ordered the four co-accused to acknowledge false claims made by another company, E. (also undergoing bankruptcy proceedings) against S. and to transfer those claims to a third company, B., which had been owned by the applicant. The false claims had later been transformed into 98% of S.’s capital, on the basis of which B. (subsequently renamed to company S.1) became S.’s main shareholder. The court found that a programme for the financial transformation of S. (“the programme”) had been prepared at the applicant’s request. On 19 November 2001 appendices to the programme had been prepared, but they had not been presented to the creditors in the bankruptcy proceedings or to the Privatisation Agency. The court concluded that the competent institutions had taken a positive stance (позитивно се произнеле) concerning S.’s transformation, but that they had been unaware of the circumstances concerning the acknowledgment of the debt towards E. and concerning the transformation of the debt into a share in S. The judgment further stated that, as a result of the alleged debt, S. had been brought to insolvency (негативна состојба) and that without that debt, the deficit of S. would have been significantly smaller and could have been consolidated by selling some of S.’s immovable property. 16. On 10 May 2007 S. complained to the State Judicial Council that Judge V.M. had been biased, since Mr D.T. was the unmarried partner of Judge V.M. and a former employee of S. He had rented business premises from S. for which he owed S. approximately MKD 4,000,000 in unpaid rent. He allegedly owed S. a further MKD 271,220. A claim against S. had been established by a court decision (see paragraph 6 above). 17. The weekly newspaper Fokus (according to the applicant, in its edition of 11 May 2007) published an article about the criminal proceedings against the applicant. The article stated that Mr D.T. had both a claim against and a debt (which he had never paid) to S. and that he was Judge V.M.’s unmarried partner. It included a statement by the applicant’s brother according to which the applicant and his family had learnt about those facts the day the trial court’s judgment had been pronounced. 18. The applicant’s three representatives lodged three separate appeals against the judgment of 30 April 2007. A fourth appeal was lodged by the applicant’s son. In the appeals it was argued, inter alia, that the trial court had not been impartial given that Mr D.T., the unmarried partner of Judge V.M., owed S. money and had a claim against it. On 11 May 2007 details concerning Mr D.T.’s alleged financial relations with S. had been published in a weekly newspaper. It was further argued that the trial court had failed to obtain an expert opinion about the applicant’s poor state of health, which had affected his ability to follow the trial. 19. On 21 June 2007 a psychiatrist (V.V.) examined the applicant in the detention department of Skopje hospital. According to a handwritten note issued by V.V. on 25 June 2007, it was necessary to transfer the applicant to a psychiatric hospital. In view of his psychological state, he could not attend the trial, nor could his statements be considered valid until a definitive diagnosis was established. 20. The applicant stayed in the psychiatric hospital from 26 June to 22 October 2007. 21. On 5 July 2007 a psychologist drew up a report on the applicant’s psychological state, at his own request. The report stated, inter alia, that the applicant’s thinking process was slow and that he was unable to respond to complex tasks requiring an increased level of abstraction and generalisation. A memory deficit was noted. The report concluded as follows: “The results of the psychological examination confirm affective and thought distortions of a depressive and paranoid character, as well as psycho-organic syndrome (психоорганицитет), which are deeply disrupting the mental state of the examinee resulting in profound psychological deviation. The examinee lacks insight and criticality for the condition in which he has been placed following the indictment”. 22. On 7 November 2007 the Skopje Court of Appeal (“the appellate court”) held a public session, which the applicant and his three representatives attended. The applicant notified the second-instance court of the deterioration in his health. The applicant’s lawyers argued that the applicant’s defence rights had been infringed at the hearing of 12 April 2007 because witnesses had been heard despite the fact that the applicant had requested a psychological examination in order to assess his capacity to follow the trial. They did not submit copies of the note of 25 June 2007 or of the report of 5 July 2007. The lawyers also repeated the arguments as to the alleged impartiality of Judge V.M. given that her partner had both a debt to and a claim against S. 23. On the same day, the appellate court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant parts of the judgment read as follows: “The court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(1)(2) of [the Criminal Proceedings Act] ... that the unmarried partner of [Judge V.M.] had a direct interest in the outcome of these criminal proceedings ... but dismissed the complaint as groundless. Namely, under the provision of section 381(1)(2) of [the Criminal Proceedings Act], there is an absolute substantial violation of procedural law only if a judge or a lay judge who needed to be excluded (section 36(1)(5)) participated at the trial. It is obvious from the complaints in this respect that they are based on an alleged existence of a reason for exclusion under section 36(2) of the Act, that is to say outside the reasons for mandatory exclusion under the provision of section 36(1)(5) of the Act ... Subsequently, the court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(2) in conjunction with section 36(1)(2) of [the Criminal Proceedings Act] with the same content, but did not accept it as grounded, because on the basis of the established facts of the case it cannot be found that there existed a direct link between the pecuniary interests of the unmarried partner of [Judge V.M.] and the object of these criminal proceedings, which would be of such a nature as to put into doubt the impartiality of the Judge in the performing of her adjudicating function in the criminal proceedings. The court assessed the complaint concerning an [alleged] substantial violation of procedural law ... that the trial court, contrary to law, had examined witnesses ... on 12 April 2007 outside the trial, ... [notwithstanding that there had been a] previous request for a psychiatric examination of the [applicant] in order to assess his mental capacity to follow the trial, but dismissed the complaint as groundless. Namely, it is evident from the record from the witnesses’ ... questioning ... [that] all of the accused who were present at the hearing had the right to put questions to the witnesses, [and] this right was exercised by some of the accused, including [the applicant], which clearly points to the conclusion that [the applicant] was not only capable of following the trial, but he could also actively participate by putting questions to the witnesses as one of the corpus of minimum rights guaranteed to each accused by the Constitution ..., the Criminal Proceedings Act and the European Convention on Human Rights as a basic international document on the matter.” 24. The court further found that the bankruptcy proceedings against S. had been opened on 10 September 1996 and stayed on 24 December 2001. On the latter date, consent (согласност) had been given for the institution of proceedings for the transformation of S. on the basis of the programme for financial and ownership transformation, which had been approved by the Privatisation Agency. 25. The applicant challenged that judgment by means of a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда). He reiterated his complaints concerning the alleged lack of impartiality of Judge V.M. and concerning his request for a psychological examination. He did not submit a copy of the report of 5 July 2007 (see paragraph 21 above). 26. On 23 December 2009 the Supreme Court dismissed the applicant’s request and upheld the lower courts’ judgments. It referred to section 36(1) (2) of the Criminal Proceedings Act and found as follows: “In the present case... it does not transpire (никаде не произлегува) that the unmarried partner of [Judge V.M.] submitted a compensation or [other] pecuniary claim ... in these proceedings. ... neither in the preliminary proceedings nor at the trial did the unmarried partner of [Judge V.M.] lodge a compensation claim and he does not have the status of a victim in the proceedings, within the meaning of the provisions of the Criminal Proceedings Act. In such circumstances ... the impartiality of [Judge V.M.] in the performance of her judicial function in the criminal proceedings cannot be put into doubt. ... all those convicted who attended the examination (of the witnesses) had the right to question them, [and] this right was exercised by some of the accused, including [the applicant], which leads to a conclusion that [the applicant] was not only capable of following the trial, but he was also able to participate actively by putting questions to the witnesses ...” 27. On 25 December 2009, the applicant, who was transferred in the meantime to Idrizovo Prison, lodged a request for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната). The prison authorities immediately communicated the request to the Supreme Court. The request was accompanied by a medical report drawn up by the prison doctor on 23 December 2009 regarding the applicant’s health since 8 August 2002. 28. On 2 March 2010 the Supreme Court upheld the applicant’s request and reduced his sentence to five years and six months’ imprisonment. It took into account as new relevant circumstances the deterioration of his health and that of members of his family, as well as the positive opinion of the prison authorities. 29. The relevant provisions of the Criminal Proceedings Act in force at the material time provided as follows: ... (2) Every accused person has the following minimum rights: ... - to have sufficient time and possibilities (можности) to prepare his or her defence ... (1) A judge or a lay-judge cannot perform his or her judicial function if: (1) he or she has suffered damages as a result of the criminal offence; (2) the accused, his or her defence lawyer, the claimant (тужителот), the damaged party or their legal or other representative is a married or unmarried partner or a relative ...; (3) he or she is a custodian, an adoptive parent, an adoptive child ... of the accused, his or her defence lawyer, the claimant or the damaged party; (4) he or she has undertaken investigative measures in the same criminal proceedings or has participated in assessing the indictment before the trial, or has participated in the proceedings as a claimant, defence lawyer, legal or other representative of the damaged party or the claimant, or has been heard as a witness or as an expert; and (5) in the same proceedings, he or she has participated in the rendering of the decision by a lower court or, in the same court, he or she has participated in the rendering of the decision challenged with the appeal. (2) A judge or a lay-judge can be excluded from performing the judicial function, apart from the cases listed under subsection (1) of this section, if evidence is submitted casting doubts as to his or her impartiality. When he or she learns that a reason for exclusion of section 36 subsection (1) of the Act exists, a judge or a lay-judge is obliged to stop his or her work on the case and to inform the president of the court, who will name a replacement. ... (1) Exclusion can be also sought by the parties. (2) The parties can seek exclusion until the commencement of the main hearing, and if they found out later about the reason for exclusion, immediately after finding out. ... (1) Apart from the cases explicitly provided for by this Act, the main hearing will be adjourned with a decision of the panel if it is necessary to obtain new evidence, or if during the main hearing it is established that, after the offence had been committed, the accused started suffering from a temporary psychological illness or temporary mental disorder or if there are other obstacles to the trial being conducted successfully. ... (1) There is a substantial violation of procedural law if: ... (2) a judge or lay-judge who had to be excluded (section 36(1)(5)) participated at the trial... (2) There is also a substantial violation of procedural law if the court, while preparing the trial or at the trial, or in adopting its decision did not apply or wrongfully applied a provision of this Act, or violated the right to defence at the trial, which affected or could have affected the lawful and correct adjudication. ... Mitigation of a finally imposed sentence is allowed when, after the judgment became final, circumstances come to light which did not exist when the judgment was pronounced, or the court was not aware of their existence, and which would obviously lead to a more lenient conviction (поблага осуда).” 30. The relevant provisions read as follows: The creditors can apply to the bankruptcy panel for a temporary stay of the bankruptcy proceedings and for the company to be allowed to continue to operate. ... Within sixty days the executive board adopts a programme for financial and ownership transformation, which encompasses the measures, actions and activities for long-term consolidation of the company, and in particular ... - ... - conversion of the debt into a permanent share (конверзијата на долгот во траен влог); ... After the recovery (санирањето) and reorganisation of the debtor company, the executive board adopts a decision to transform ownership to a joint stock company (акционерско друштво) or a limited liability company (друштво со ограничена одговорност). On the basis of an opinion of the [Privatisation Agency] on the decision mentioned in ... [the paragraph above], the bankruptcy panel adopts a decision giving consent (согласност) to the institution of transformation proceedings, which stays the bankruptcy proceedings. ... If the recovery and reorganisation of the debtor company do not provide the expected results, the executive board proposes that the bankruptcy panel continue the bankruptcy proceedings. The bankruptcy proceedings are also continued if the bankruptcy panel does not give the consent mentioned in ... this section.”