GAVRILOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
1. The applicant, Mr Gorančo Gavrilov, is a Macedonian national who was born in 1966 and lives in Štip. He was represented before the Court by Mr F. Medarski, 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. The applicant is the owner and manager of a local radio station in Štip. Between 1998 and 2008 he was also President of the National Association of Radio Broadcasting Companies. In that capacity, he reported to the relevant State authorities some irregularities in the operation of company R., a cable TV broadcasting company owned by Mr R.D. According to the applicant, on account of that criticism, Mr R.D. had threatened on several occasions to kill him. As established in the criminal proceedings described below, in a reported incident of 13 November 2002 Mr R.D. issued verbal threats against the applicant. Other alleged incidents, the latest dated 29 December 2007, were not reported to the police. 5. On 27 March 2008 the public prosecutor indicted Mr R.D., Mr D.M. and Mr G.S. for the attempted murder of the applicant. The charges concerned an incident occurring on 26 January 2008 in which Mr D.M., a member of the special military forces known as the Wolves, and Mr G.S., had allegedly assaulted the applicant with the intention of killing him. Both accused had allegedly worn black masks and used metal clubs to beat the applicant. The applicant sustained head and body injuries. Three of his fingers were broken. In the assault, Mr D.M. allegedly fired a shot, which did not hit the applicant. As stated in the indictment, Mr R.D., who had threatened on 29 December 2007 to kill the applicant, had incited Mr D.M. and Mr G.S. to carry out the attempted killing. 6. The proceedings were conducted before the Štip Court of First Instance (“the trial court”). At the trial, the court heard oral evidence from the accused and several witnesses and confronted the applicant with Mr R.D. It also admitted a considerable volume of documentary evidence, including several expert reports; lists of temporarily seized objects; detailed lists of calls on mobile phones confiscated from the accused; reports on identity parades set up during the trial; excerpts from several daily newspapers, and other items of evidence. On 30 April 2008 the trial court delivered a judgment acquitting the accused. The applicant was instructed to pursue possible compensation claims against the accused by means of a separate civil action for damages. In the judgment, the trial court examined the available evidence. It did not give weight to an expert report according to which strands of textile found on one of the metal clubs used in the attack matched fibres from jeans like those confiscated from Mr G.S. It further disregarded an expert report which stated that a residue of saliva on a cigarette butt found at the scene of the incident immediately after the assault was consistent with blood group A, which was Mr D.M.’s blood group. It did so because a DNA analysis of the saliva had excluded the possibility that the cigarette butt belonged to Mr D.M. Because of some irregularities in the identity parade held by the police, the court also disregarded the fact that the applicant and two witnesses had identified Mr G.S. as one of the assailants. Lastly, it had not been confirmed that Mr R.D. had threatened the applicant. The confrontation between the two men had not supported the applicant’s allegations in that respect. According to the receipt slip, this judgment was served on the applicant on 8 May 2008. 7. On 29 September 2008 the Štip Court of Appeal dismissed an appeal by the public prosecutor and upheld the trial court’s judgment. It found that the lower court had established the facts correctly and had provided sufficient reasons for its judgment. Further to the assessment of the evidence carried out by the trial court, the Court of Appeal examined evidence regarding the bullet found at the scene after the incident. Forensic ballistics tests confirmed that its calibre corresponded to ammunition used by an American-produced gun of a type that had been reported stolen from a military unit in Iraq in which Mr D.M. had served at one time. That finding, coupled with the fact that the gun from which the bullet had been fired had not been found, had been insufficient, in the court’s opinion, to attribute any guilt to Mr D.M. The Court of Appeal concluded that the lower court had given a clear and lawful judgment. The Government provided a copy of a receipt slip according to which the applicant was served with this judgment on 30 October 2008. In the comments submitted in reply to the Government’s observations, the applicant did not contest the date of service of this judgment. 8. On 9 January 2009 the public prosecutor challenged the lower courts’ judgments by lodging, of his own motion, a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court. 9. On 25 March 2009 the Supreme Court granted the request and stated that the lower courts had violated section 355(1), paragraph 11, and (2) read in conjunction with section 14 of the Criminal Proceedings Act of 1997 (“the 1997 Act”) (see paragraphs 12 and 13 below) in favour of the accused. Referring to section 408(2) of the 1997 Act, it stated that its judgment would not affect the final judgment. The Supreme Court found that, on the basis of the evidence in the case file, the reasons given in the trial court’s judgment had been unclear and contrary to the evidence adduced. The lower court had erred on the facts and had assessed the available evidence incorrectly, in particular evidence provided by the applicant and other witnesses who had identified the accused as the perpetrators of the crime. It stated that the trial court had established the facts solely on the basis of the evidence in favour of the defence. Evidence against the accused had been disregarded, with reasoning which lacked any substantiation. The Supreme Court further criticised the way in which the trial court had assessed the expert evidence. It also observed that the Court of Appeal had upheld the trial court’s judgment despite being vested with jurisdiction to ascertain of its own motion whether there had been any procedural flaws. The applicant was served with this judgment on 1 September 2009. 10. On 30 October 2009 the applicant lodged a constitutional appeal with the Constitutional Court seeking protection of his right to freedom of expression, which had allegedly been violated owing to the failure of the State to identify and punish those responsible for the incident. Since the Supreme Court’s judgment had no bearing on the final judgment acquitting the accused, he alleged that he had also been denied the opportunity to claim compensation from the accused. The applicant reiterated that the incident of 26 January 2008 had been connected to his criticism of company R. and had been intended to silence him. 11. On 23 December 2009 the Constitutional Court rejected (отфрла) the applicant’s appeal. It found that the criminal courts had been required to establish whether any liability could be attributed to the accused. They had neither adduced any evidence nor established the facts in respect of whether the assault had been intended to restrict the applicant’s freedom of expression. The intention to commit the crime was of importance for identifying the perpetrators and determining the penalty. Furthermore, the protected interest damaged by the alleged crime was the right to life and not freedom of expression. The assault in question had happened at a time and place that could not be directly linked to the applicant’s freedom of expression. The Constitutional Court accordingly found that the judgments of the first and second-instance courts had not been of any relevance to the applicant’s freedom of expression. It further stated that the Supreme Court had no jurisdiction, in view of the proscription of reformatio in pejus set forth in section 408(2) of the 1997 Act, to remit the case for re-examination or decide it on the merits. The State could not therefore be held responsible for failing to punish the perpetrators. Lastly, it had been open to the applicant to claim monetary compensation in civil proceedings as he had been instructed to do by the criminal courts. 12. Under section 14 of the 1997 Act, the courts were responsible for establishing the relevant facts correctly and completely and assessing with equal diligence the evidence against and in favour of the accused. 13. Section 355(1), paragraph 11, and (2) of the 1997 Act provided that there was a substantial procedural flaw if a judgment contained no reasoning or the reasoning was incomprehensible or inconsistent, or if the court did not apply a statutory provision or applied it incorrectly. 14. Sections 403 and 404 provided that the public prosecutor could lodge a request for the protection of legality (барање за заштита на законитоста) against final court judgments. The Supreme Court determined such requests. 15. Under section 406(1) and (3), the Supreme Court was limited to examining the violations alleged in the request for the protection of legality. If such a request was lodged in favour of the convicted person, the Supreme Court could not amend the lower courts’ judgments to his or her detriment regarding the legal classification of the crime and the penalty imposed. 16. Under section 408(1), if the Supreme Court granted the request for the protection of legality it could issue the following judgments: it could overturn the final judgment; it could annul the first and second-instance courts’ judgments or only the second-instance court’s judgment and remit the case for re-examination; or it could merely acknowledge the violation. Under sub-section 2 of that provision, if a request was lodged to the detriment of the accused and the court found the request well-founded, it would acknowledge that there had been a violation of the law. The judgment of the Supreme Court would not affect the final judgment. 17. In October 2004 the word “accused” in section 408(2) of the 1997 Act was replaced with the words “convicted person” (Official Gazette no. 74/2004). 18. The 2010 Criminal Proceedings Act, which came into operation on 1 December 2013, contains the same provision as section 408(2) of the 1997 Act, as amended in 2004 (section 461(2)). 19. The Government submitted copies of several judgments (Кзз.бр.42/2011; Кзз.бр.53/2011; Кзз.бр.35/2012; Кзз.бр. 5/2013 and Кзз.бр.12/2013) in which the Supreme Court had granted requests for the protection of legality lodged by the public prosecutor and found that the law had been violated by the lower courts’ judgments in which the accused had been acquitted. In all these judgments the Supreme Court, relying on section 408(2) of the 1997 Act, had held that its findings would not affect the final judgments of the lower courts. In these cases, the first-instance courts’ judgments were given between March 2010 and May 2012.