CASE OF DEMERDŽIEVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
5. The applicants were born in 1979, 1986 and 1941 respectively and live in Skopje. 6. On 19 November 2004 the Gevgelija Court of First Instance (“the trial court”) convicted the applicants of drug trafficking and sentenced them to three, six and four years' imprisonment respectively. The trial court established that on 22 June 2004, a certain N. (the last name of Mr K.N., as established in the course of the domestic proceedings, later referred to as Mr K.N.) and the third applicant had arrived at the first applicant's house where she lived with the second applicant, her stepson. The applicants bought 1,012 g of heroin from N. for 7,500 euros (EUR). After keeping some drugs back at the house, the applicants divided the remaining 952 g into two packs to sell to Mr N.N., an unidentified end buyer whom they had arranged to meet in a car park near Gevgelija. The second applicant hired a taxi and the remaining applicants took N.'s car to meet Mr N.N. The police stopped the cars and found the drugs in the taxi. N. escaped. The trial court established these facts on the basis, inter alia, of the statements of the second and third applicants given in the pre-trial proceedings. The court also referred to the first and third applicants' statements at the hearing, notably that they had been victims of a constructed scenario and that they had not known N. before the date when the offence was committed, but disregarded them as self-serving. The testimonies of two witnesses, as well as items of real evidence, were also taken into account. 7. The applicants complained, inter alia, that they had been set up to commit the offence by N., an alleged agent provocateur, whom police had allowed to leave the scene. They further complained that no attempt had been made to uncover the truth as regards N.'s involvement in the commission of the offence. 8. At a public session (јавна седница) of 25 March 2005, in the presence of the public prosecutor, the applicants and their lawyer, the Skopje Court of Appeal dismissed the applicants' appeal and upheld the trial court's decision. It stated that efforts to discover N.'s whereabouts had been unsuccessful. It further argued that the trial court had based its decision on considerable evidence which, taken as a whole, had confirmed the applicants' involvement in the commission of the crime. 9. The trial court sent this decision to the applicants by mail. A stamp “Skopje-Madzari” of 13 April 2005 was affixed on the post slip returned to the trial court. According to the Government, this stamp was affixed by the detention centre where the applicants were being detained pending the proceedings in question. According to three other return receipts bearing the detention centre's receipt stamp, this decision was received by the latter on 14 April 2005. Each applicant signed and dated these receipts: the first applicant received the decision on 18 April 2005, the second applicant on 14 April 2005 and the third on 16 April 2005. 10. On 16 May 2005 the applicants lodged an appeal on points of law with the Supreme Court. They set out its general basis in a succinct manner and stated that detailed submissions would follow. 11. In submissions of 30 May 2005, the applicants provided full factual and legal grounds of appeal. They complained, inter alia, of having been entrapped into committing the offence by N., whose real name was Mr K.N. They provided his whereabouts and stated that he had been actively involved in the crime and had operated as an agent provocateur, under the guidance of the police, who had sent him to incite the second applicant to buy the drugs, given his previous criminal record in that respect. They further maintained that Mr K.N. had cooperated with the police in other cases, setting up other people in order to help his cousin who was serving a prison sentence for drug trafficking. The police's involvement in the crime was supported, inter alia, by the following: they had allowed Mr K.N. and Mr N.N., the unidentified end buyer, to leave the scene at the time of the applicants' arrest; the drugs had not been found in a routine police check, but on the basis of advance information about their whereabouts; and two detectives with known identities had been present at the scene. They further complained that the courts had failed to take evidence from these two detectives and other police officers who had been present at the scene. The applicants made reference to the Court's case-law on the impact of an agent provocateur on convicts' rights under Article 6 of the Convention. 12. On 6 September 2005 the Supreme Court rejected (отфрла) the appeal on points of law as out of time. It did so after it had obtained submissions from the public prosecutor in which the latter had requested that the appeal be dismissed on the merits. The court established that the Court of Appeal's decision had been served on the applicants on 13 April 2005. 13. In submissions of 7 and 25 November 2005 respectively, the applicants asked the Supreme Court to rectify the error in respect of the date of service of the Court of Appeal's decision. In support of their request they submitted a copy of the return receipts bearing the detention centre's receipt stamp and their signatures (see paragraph 9 above). This request remained unanswered. 14. Under section 84 of the Criminal Proceedings Act, it is neither the date of service of the judgment, nor the date of the event, that is taken to be the date from which the time-limit starts to run. It is the next day that is taken as the starting date for calculation of the time-limit. If the last day of the time-limit falls on a public holiday, Saturday or Sunday, the time-limit expires at the end of the next working day. 15. Section 411(1) and (2) provides that a person convicted by a final decision and sentenced to imprisonment may lodge an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). The appeal may be submitted within thirty days of the date on which the convicted person was served with the decision. 16. Other provisions relevant to the present case were described in the cases of Gorgievski and Mamudovski (see Gorgievski v. the former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 6 May 2008, and Mamudovski v. the former Yugoslav Republic of Macedonia (dec.), no. 49619/06, 10 March 2009).