JOVANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Dimče Jovanov, is a Macedonian national who was born in 1976 and lives in Krupishte. He was represented before the Court by Mr P. Dokuzov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 June 2003 the public prosecutor requested an investigating judge of the Štip Court of First Instance (“the trial court”) to open investigations against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant on account of having been in possession of weapons and explosives (недозволено држење на оружје и распрскувачки материјали). He also requested that the accused be examined and remanded in custody. On the same date, the investigating judge examined the accused. The applicant stated, inter alia: “... Yesterday, while I was walking through the city, I met with R. [the first name of Mr Dz., as established in the course of the domestic proceedings, later referred to as Mr R.Dz.], an acquaintance of mine, last name and address I don’t know, who told me that he needed explosives to kill fish. I told him that I knew a person, Mr A.P., who knew a third person who could provide explosives. R. suggested me that that person could bring the explosives firstly to the V.P. petrol station and then in the village of Tri Češmi ... I hired a taxi and went to meet Mr A.P. ... I told him about the potential buyer, without specifying the quantity and price of the required explosives. It was something for him to agree upon with R. Mr A.P. accepted ... I called Mr A.A. to ask him, if possible, to come in his car ... I stayed in the village of D. Balvan in order to meet with R. whom I met at the petrol station. We stayed there for half an hour, until Mr A.P. and Mr A.A. arrived. We had a coffee ... when Mr A.A. and Mr A.P. arrived, I got into the car and continued towards Tri Češmi. There, we were stopped by police. They also stopped the car, which R. had got into at the petrol station, but they let it go on straight away. They searched our car and found the explosives ...” Mr A.P. stated, inter alia: “... We (the applicant and I) are former schoolmates ... we often see each other ... yesterday at around 1 p.m. [the applicant] came to my house in a taxi and told me that he had found a customer for the explosives ... He called Mr A.A. from my phone asking him to come in his car ... [The applicant] did not want to come with us to Zletovo village, but said that he would wait at the V.P. petrol station where he would meet the buyers ... When we arrived at the petrol station, [the applicant] joined us and told us to follow a car ... [The applicant] promised me 100 German marks (DEM) as a reward for my part ...” Mr A.A. stated, inter alia: “... At around 10 or 11 am. on 16 June 2003, [the applicant] came into my shop asking for a favour, namely to transfer him to a place, without specifying where and for what purpose. He left and at around 2 pm. he called me again. I told him to call back in fifteen minutes... [The applicant] called me on my mobile phone ... it was around 2.20 p.m. when [the applicant] called me again. I took my car and went in the village of G. Balvan. There, [the applicant] and .... Mr A. waited for me. While he was driving [the applicant] said that something had come up, that I would have to leave him in the village of D. Balvan, but that I would have to take Mr A. on to Zletovo and that he would pay me for the petrol... When we arrived at the petrol station, [the applicant] was waiting for us in the restaurant alone. He joined us in the car. I immediately started to argue with him, asking why he had not told me about the matter. With a smile on his face he told me: ‘don’t worry mate, I’m with you. I just want to ask for one more favour: to take us with the explosives to Tri Češmi. Mr A. and I will go on and you’ll go back and we’ll pay for the petrol...” On 26 June 2003 the public prosecutor filed an indictment with the trial court against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant. The applicant was charged with acting as an accomplice in concert with Mr A.P. and Mr A.A. and with obtaining explosives with the intention of selling them to an unknown buyer. According to depositions taken on 23 June 2003 in the pre-trial proceedings, the applicant, who was assisted by counsel, confirmed his statement of 17 June 2003. At a hearing of 18 July 2003, the trial court examined all the co-accused, including the applicant. Mr A.P. stated, inter alia: “... [the applicant] engaged Mr A.A. [The applicant] knew that Mr A.A. and I would buy explosives from Zletovo. [The applicant] knew who the buyers were, but I did not ...” The applicant confirmed his statements given in the pre-trial proceedings. Asked by his representative, he stated that he would not have taken part in any of the activities had it not been for R., who had incited him to find explosives. In his concluding remarks, the applicant’s representative stated that R., acting as an agent provocateur, had instigated the offence. He further argued that the prosecution had failed to secure R.’s attendance at the trial so that evidence could be taken from him. On 21 July 2003 the trial court found the applicant guilty and sentenced him to one year’s imprisonment. It established that Mr T.A. had taken explosives in 2001 from a mine where he had worked. On the morning of 16 June 2003, the applicant had agreed with Mr A.P. and Mr A.A. to sell the explosives to R. The transaction was supposed to take place in the village of Tri Cesmi. The same day, Mr A.P. and Mr A.A. went to Mr T.A.’s house and obtained the explosives from the latter’s wife, Mrs S.A. They put the explosives in their car and drove towards Stip. The applicant joined them in the car at the V.P. petrol station near Stip. They were stopped by police on their way to the village of Tri Cesmi, where the sales transaction, which had earlier been agreed between the applicant and R., should have taken place. Mr A.A. was driving the car and the explosives were found behind the right-hand front seat. The police issued Mr A.P. with a receipt for temporarily seized objects (потврда за привремено одземени предмети). The trial court stated that evidence of the alleged crime was provided by the statements of Mr T.A., Mr A.P. and the applicant and by the actual actions taken by each of them. The court also referred to documentary evidence, namely two expert reports, several search reports, photo evidence and the explosives and detonators found. The trial court rejected the applicant’s allegations of being entrapped by an agent provocateur as “ill-founded” and “irrelevant”. On 11 September 2003 the applicant, through his representative, complained that, inter alia, the trial court had not provided reasons for rejecting his request to examine the key witness on his behalf, namely the agent provocateur. He argued that there was considerable evidence that he had been incited by a police informer to uncover the person who was able to obtain explosives, even though the police had already known about the latter. He further alleged that the whole series of events had been planned in advance and monitored by the police. He considered it crucial for the court to establish whether it was the applicant who had approached the police informer of his own accord or whether it was the agent provocateur who had taken the initiative. He regarded it as inhuman for the investigating authorities to have taken advantage of his poor standard of living to ensure a successful police operation. He therefore concluded that the trial court had erred in rejecting his request to examine the buyer whose identity, in fact, he did know. That person was Mr R.Dz. The applicant also provided his address and requested the Court of Appeal to examine him regarding the circumstances surrounding the applicant’s involvement in the crime. At a session (седница) held on 25 February 2004, the Štip Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to a term of eight months’ imprisonment. It upheld the remainder of the trial court’s decision. At the session, the applicant requested acquittal and stated that he would not have had any involvement in the crime had it not been for the agent provocateur. The Court of Appeal established that the fact that no items had been confiscated from the applicant did not rule out his guilt. It further found that evidence adduced by the trial court, namely the statements given by the applicant, Mr A.A. and Mr A.P., together with other evidence, corroborated the contention that the applicant, before arriving at the petrol station, had instructed the other two accused to obtain the explosives with the intention of selling them to the buyer Mr R.Dz., with whom he had arranged the transaction. It concluded, therefore, that the applicant’s defence rights had not been violated. The court further rejected the applicant’s allegations that he had been incited to commit the offence by an agent provocateur, on the grounds that the applicant himself had stated in the pre-trial proceedings that, having been asked by his acquaintance, Mr R.Dz., whether he knew anyone selling explosives, he had offered the latter explosives, which he had said he would secure through another person. The applicant had then agreed to bring the explosives to the petrol station and take them to the village of Tri Češmi afterwards. The court further relied on Mr A.P.’s statement, according to which the applicant had promised him a reward of DEM 100, to be deducted from the selling price of the explosives after the transaction. Finally, the court concluded that the trial court had established all facts relevant to the case and that accordingly, examination of Mr R.Dz., the alleged agent provocateur, was not necessary. On 9 April 2004 the applicant lodged with the Supreme Court an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). He complained that the lower courts had erred in rejecting his request for examination of the alleged agent provocateur as irrelevant. Relying on Article 6 of the Convention, the applicant complained that the lower courts had failed to consider the arguments in his defence. On 18 May 2004 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the lower courts had adduced sufficient evidence to establish the truth and that the applicant’s arguments had not been such as to undermine their credibility. It further stated that the applicant’s conviction had not been based, as he alleged, on inadmissible evidence. The applicant’s allegations had been examined by the Court of Appeal, which had provided sufficient reasons to satisfy the Supreme Court. As to the applicant’s allegations that there had been a violation of Article 6 of the Convention as his conviction had been based on evidence which could not serve that purpose, namely the evidence of an agent provocateur, the Supreme Court stated: “... the court does not accept this allegation ... given that, in order for there to have been a violation of Article 6 of the Convention concerning the right to a fair trial, the lower courts’ decisions must have been based solely on evidence provided by a socalled agent provocateur. The lower courts’ decisions were not based on any such evidence ... On the contrary, the defence insisted that evidence should be heard from such a witness. The witness in question was not examined and the courts’ decisions were in no way based on statements made by him. The lower courts adduced sufficient evidence and provided sufficient reasons in relation to all the defence arguments. There has, accordingly, been no violation of Article 6 of the Convention.”