CASE OF MITROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Reopening of case (Article 41 - Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
6. The applicant was born in 1974 and lives in Strumica. 7. At the time when the criminal proceedings (see paragraphs 11-32 below) were initiated, there were four judges working in the criminal section of the Strumica Court of First Instance (“the trial court”): Judges M.A., C.K., T.D. and G.M. In addition, Judge B.B. was an investigating judge in the trial court, Judge V.D. worked on cases concerning minor offences, and Judge S.D. was on sick leave. 8. From 2002 Judge C.K. was a clerk (стручен соработник) at the trial court. From 2004 she worked with Judge M.A. and two other judges. She was appointed as a judge in February 2005. 9. In 2004 Judge M.A. became president of the criminal section of the trial court. 10. On 26 November 2006 the applicant was involved, as the driver of a car, in a traffic accident in which the eighteen-year-old daughter of Judge M.A. was killed. 11. On 19 January 2007, after examining the applicant in the presence of his lawyer, Judge B.B. opened an investigation against him. 12. Between 25 January and 7 February 2007 Judge B.B. heard evidence from five eyewitnesses, two experts and the victims’ representative. The applicant’s representative was only present when two of the eyewitnesses gave their statements. 13. On 8 February 2007, Judge B.B. commissioned an expert report, to be prepared by the Forensic Bureau (Биро за судски вештачења) (“the Bureau”), regarding the reasons for the accident, the speed at which the applicant had been driving at the relevant time, whether the accident could have been avoided, and other relevant matters. 14. On 14 March 2007 a mechanical engineer from the Bureau drew up an expert report (“the first expert report”), relying partly on the statements given by the witnesses before Judge B.B. 15. On 20 April 2007 the public prosecutor charged the applicant with “severe crimes against the safety of people and property in traffic” (тешки дела против безбедноста на луѓето и имотот во сообраќајот). On 15 May 2007 a three-judge panel of the trial court, presided over by Judge T.D., dismissed an objection (приговор) by the applicant to the indictment. 16. In June 2007 an alternative expert report was drawn up, at the applicant’s request, by a private expert agency (“the second expert report”). 17. On 12 July 2007 the applicant asked the president of the trial court to exclude the trial court judges who acted in the criminal proceedings, namely Judge C.K. and the other judge on the trial court panel which were acting in the applicant’s case, as well as Judges G.M., S.D. and T.D., given that the case concerned a traffic accident in which the daughter of a judge in the criminal section of the court had been killed. He further complained that the investigation had been unfair, and alleged that Judge B.B. had been partial. Finally, he stated that he hoped that the president of the trial court would ask the President of the Štip Court of Appeal (“the appellate court”) to assign the case to another first-instance court. 18. On the same day Judges C.K. and T.D., who had been appointed as members of the panel in the applicant’s case, gave written statements that the fact that their colleague’s daughter had died in the accident would not influence their adjudication. The president of the trial court referred to those statements, and dismissed the application for exclusion in respect of Judges C.K. and T.D., finding that the conditions of section 36(2) of the Criminal Proceedings Act (see paragraph 33 below) had not been fulfilled. The president of the trial court further rejected as inadmissible the application concerning Judges G.M. and S.D., given that under section 38(4) of the Criminal Proceedings Act an application for exclusion could only be lodged in respect of an individual judge who was acting in a particular case (see paragraph 33 below). 19. The trial continued, and on the same day the applicant lodged a fresh application for exclusion of Judge T.D., given that he had presided over the three-judge panel which had dismissed the applicant’s objection to the indictment (see paragraph 15 above). 20. On 13 July 2007 the president of the trial court upheld the latest application for the exclusion of Judge T.D. 21. At a hearing held on 26 September 2007 the trial court (Judge C.K. presiding, and including Judge S.D. and three lay judges) admitted in evidence the second expert report (see paragraph 16 above) submitted by the applicant. The applicant asked the trial court to examine the experts who had prepared both reports, in order to clarify their findings, which he described as contradictory. 22. At a hearing held on 19 October 2007 the composition of the trial court panel was changed to Judge C.K. (as president of the panel), Judge V.D., and three lay judges. At that hearing the trial court commissioned a fresh expert report (вештачењето да се обнови со други вештаци) to be prepared by three experts from the Bureau, not those who had drawn up the report of 14 March 2007 (see paragraph 14 above). 23. On 31 January 2008 a fresh expert report was issued by the Bureau (“the third expert report”). 24. On 4 March 2008 one of the experts who had drawn up the third expert report was examined at the trial. 25. On 5 March 2008 the applicant’s lawyer, in his closing remarks, submitted that the trial court was adjudicating a case concerning an incident in which their colleague’s daughter had died. He argued that the practice in similar cases was that the judges withdrew in order not to cast doubt on the court’s impartiality. 26. On the same day the trial court convicted the applicant and sentenced him to four years and six months’ imprisonment. It found that the applicant had been driving at excessive speed and under the influence of alcohol. It dismissed the applicant’s arguments that the victim in the accident had ignored a “Stop” sign and was not wearing a seat belt. It based its findings on the third expert report and the oral evidence. It did not give any weight to the second expert report. Finally, the trial court upheld the compensation claim lodged by Judge M.A., her husband and her other daughter against the applicant’s insurance company, which had acknowledged the claim (го призна барањето). 27. On 4 April 2008 the applicant appealed against the judgment, arguing, inter alia, that the case should have been assigned to another court, and that Judge C.K. had previously worked as a court clerk delegated to Judge M.A. for several years. In this connection he submitted that there had already been such transfers in cases concerning criminal proceedings against a public prosecutor and a president of a court. There had been grounds for exclusion under section 36(2) of the Criminal Proceedings Act. The trial court had not provided any reasoning in respect of the second expert report, and had not admitted evidence proposed by the applicant. The third expert report was identical to the first and contradictory to the second, as regards the speed at which the applicant had been driving at the time of the accident. The applicant further requested that the case be remitted and heard either before a different panel of the trial court or before a different court. 28. On 24 September 2008 the appellate court dismissed the applicant’s appeal, upheld the prosecutor’s appeal, and increased the sentence to six years’ imprisonment. The part of its judgment concerning the alleged lack of impartiality reads as follows: “The complaints about a violation of section 36(2) of the [Criminal Proceedings Act] are groundless ... [the applicant’s] defence lawyer applied for exclusion of [Judges C.K, G.M., S.D. and T.D.]. According to the statements given by the Judges, the President of the Court of First Instance took a decision ... by which he dismissed the application for exclusion, for reasons stated in the decision.” 29. The appellate court further held that the second expert report had not been ordered by the court, that the experts had not been warned of their duties and had not taken an oath, that the court had not established which matters should have been addressed by the report, and that it was for the trial court to decide whether it would accept the report. As regards the applicant’s complaint that evidence proposed by him had not been admitted at the trial, the appellate court held that this did not amount to a violation of the applicant’s right to defence, as the trial court was not obliged to accept all proposed evidence. 30. On 11 November 2008 the applicant lodged a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that the trial court had refused his request for an additional expert report (супервештачење) to be commissioned from an independent institution. Citing Articles 6 and 8 of the Convention, the applicant complained that Judge C.K., the clerk of the victim’s mother (Judge M.A.), had adjudicated the case, and that Judge M.A. was the president of the criminal section of the trial court. He further complained about the refusal to assign the case to another competent court. 31. On 13 January 2009 the Supreme Court dismissed the applicant’s request and confirmed the lower courts’ judgments. It endorsed the lower courts’ findings and reasoning, without providing further reasoning in respect of the applicant’s complaint concerning the judges’ alleged bias. 32. On 21 September 2010 and 29 March 2011 the Supreme Court dismissed two requests by the applicant for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната).