CASE OF GORGIEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Art. 6-1+6-3-d
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
5. The applicant was born in 1962 and lives in Kriva Palanka. 6. He worked as a sanitary inspector at a border post near the city of Delčevo. His tasks included sending samples of imported products to laboratories for further examination. The examination fees were paid directly to the laboratories by the importers. 7. On 22 July 1999 a company from Vinica (“the company”), which imported goods on a regular basis, presented a shipment for inspection at the border post. Mr A., the owner and manager of the company, allegedly agreed with the applicant to meet on 26 July 1999. 8. According to Mr A., they met on 27 July 1999, when the applicant told him that he could pay the examination fees directly to the applicant, who would then send fewer samples for inspection. As he suspected that the applicant was actually demanding a bribe, Mr A. reported the matter to the police. The police then suggested that he should offer the applicant a sum of money in banknotes which they had marked in order to keep track of them. 9. On 29 July 1999 Mr A. and his business partner and relative, Mr P., who was aware of the alleged conversation, came to the border post to look for the applicant. The applicant and Mr A. met in a restaurant near the applicant’s office. Mr A. gave 400 German marks (DEM) to the applicant and left. The applicant was subsequently arrested in front of his car. 10. On 29 July 1999 the investigating judge of the Delčevo Court of First Instance (“the trial court”) started an investigation on the grounds of reasonable suspicion that the applicant had accepted a bribe of DEM 400. The applicant was remanded in custody for 30 days as it was feared that he might obstruct the investigation by interfering with witnesses if released. A warrant to search his home was also obtained and the search was conducted on the same day. 11. According to the depositions taken in the course of these proceedings, the applicant stated, inter alia: “... Mr A. objected to the fact that I had taken too many samples for examination. I told him that I could not avoid sending samples for examination and that I had taken as many samples as necessary. Then he promised me that he would reward me if I showed restraint and avoided sending samples for examination. It was just a general proposition, without any exact figures as to the amount. I refused. Today, he came to the border post and asked me to meet him. We went to the restaurant and he repeated his offer. I refused again. He then put something in my pocket and left the restaurant. I was surprised at first and saw that it was DEM 400. I put it in my trouser pocket and went out to look for him. As he had gone, I was afraid and did not know whether I should go to the police. That’s why I went to my car. There I was approached by several policemen who searched me and asked where the money had come from. As I was afraid, I told them that I had obtained it in Kočani... I would just like to add that there was nobody but the waiter in the restaurant during my meeting with Mr A...” 12. On 4 August 1999 the investigating judge examined Mr A. and Mr P. The former stated, inter alia: “... On Tuesday [date not specified], I arrived at the applicant’s office and we both went to the restaurant. Then, he told me that ‘he had examined [samples for] me for two years’ ... he therefore told me that we should agree not to send any samples of imported products for examination... He also said that I should not pay [the examination fees] directly to [the name of the examination institutions], but should give the money to him. He said that the tariff per vehicle was DEM 200 or DEM 400 and that I should decide how much I would give... After I had left for Vinica, I considered the consequences of giving the money to the inspector [referring to the applicant] ... and decided to inform the chief inspector of Kočani about the case again... The chief inspector took [the two banknotes of DEM 200] from me and returned them on Thursday, 29 July 1999. At about 1 p.m. the same day, Mr P. and I arrived at the border post. I entered [the applicant’s] office, but he was not there. Then he saw me... Then we went to the restaurant. We sat at a table, and Mr P. sat at a nearby table. There was nobody else in the restaurant... Since he knew that I would give him money, he asked me ‘Do you have the money?’. I didn’t reply, but took DEM 400 (2x DEM 200) out of my shirt pocket, [the applicant] took it with his right hand and put it in his shirt pocket. I told him that it was DEM 400 and asked if it was enough. He took the money out of his shirt pocket, looked at it and put in his trouser pocket. We stayed in the restaurant for about five minutes. The money changed hands at the beginning... I wish to add that on 29 July 1999 I noticed two persons in plain clothes, a man and woman, sitting in the restaurant... I assume they were policemen...” 13. Mr P. stated, inter alia: “... I consider that the applicant treated us badly as he did not take the usual quantities of samples for examination... We complained of his behaviour to the Customs Office, but they told us that nothing could be done... Five or six days before the day in question, Mr A. told me that the applicant had arranged a meeting with him, as the latter was no longer satisfied with the quantities of samples he had taken, but that he had asked for money to let our trucks through without difficulty. We informed the police, who told us that we must provide proof. On 29 July 1999 I went with Mr A. to the border post and I was in the restaurant when the money was given to the applicant. I was sitting at a nearby table when I heard the applicant saying that he wouldn’t work for the State anymore, but for himself. Then I heard the applicant asking about the amount of money... I would like to add that when the applicant asked for the money, Mr A. put banknotes into his hand. He counted the money, saying that it was not enough. At that time, there were two people, a man and woman, in the restaurant, but I don’t know who they were...” 14. On 5 August 1999 the investigating judge took a statement from Mr D., a market inspector who shared the office with the applicant, who stated, inter alia: “... On 29 July 1999 ... Mr A. came into my office asking where my colleague [the applicant] was. I told him that he had left. We talked for about an hour about various business issues. On his way out, he asked me to join him at the restaurant for a drink. I didn’t answer. After half an hour, [the applicant] arrived... I told him that Mr A. was looking for him and had invited us for a drink at the restaurant. [The applicant] then left, but I don’t know where he went. After five minutes, [the applicant] returned to the office looking distressed. He asked what I was doing and left the office without saying anything. After five minutes, I had to leave the office and saw the applicant surrounded by four men and a woman. One of them asked me where I was from and called me to act as a witness while the applicant was searched. They informed me that they were policemen. The applicant took DEM 400 out of his pocket ... and we all went to the police station, where I made my statement ...” 15. On 10 August 1999 the applicant was released from detention. 16. On 13 September 1999 the public prosecutor lodged an indictment charging the applicant that he had accepted a bribe in order not to take and send samples of imported products to laboratories for examination. The indictment was based on the events as described by Mr A. (see paragraphs 7-9 above). 17. On 11 February 2000 the trial court held a public hearing. It heard oral evidence from the applicant, Mr A. and Mr P. and admitted some documentary evidence. The applicant stated, inter alia, that he had been “set up” by Mr A. and intended to report him to the police, but that he had been prevented from doing so by the police officers who had arrested him before he got into his car. He also said that he might have wrongly stated in the pre-trial proceedings that he had not obtained the money from Mr A., as he had been under stress. 18. Mr A. stated, inter alia: “... I informed the police officers and after being told that I would not face any charges, I decided to offer him the money. I didn’t arrange anything with them [the police] before I went to Delčevo on 29 July 1999... [After the money had changed hands] I left and I don’t know what happened afterwards. At that time, besides us, there was a man and woman sitting at another table and two other persons. I can’t recall whether Mr P. was present when I gave the money to [the applicant]...” 19. Mr P. stated, inter alia: “... It was I who insisted that Mr A. report [the applicant] to the police... I don’t know whether the police had any plan... During the meeting on 29 July 1999 there were other people in the restaurant who I didn’t know. It was me who left the restaurant first...” 20. The court also heard evidence from two witnesses called by the applicant concerning the events in the restaurant. 21. Mr T., a waiter at the restaurant, stated: “As far as I can recall, Mr A. and the accused were sitting in the restaurant and stayed for about 5-6 minutes.” 22. Ms S., a cook at the restaurant, stated: “As far as I can recall on the date in question, Mr A. and the accused were sitting in the restaurant... There was nobody else besides Mr T... I cannot say what they discussed or how they behaved. I think that they stayed for about fifteen minutes.” 23. On the same day, the trial court gave its judgment. It found the applicant guilty of accepting a bribe and sentenced him to three months’ imprisonment. It established that after the discussion of 27 July 1999 between the applicant and Mr A., the latter had notified the police and they had instructed him to give the applicant money and to inform them if he accepted it. It further established that after Mr A. had put the money in the applicant’s shirt pocket, the applicant had left the restaurant and gone into his office. After he left his office, the police, who had been informed about the event in advance, searched him and found the money. 24. The court rejected the applicant’s arguments and noted that his conduct immediately after he accepted the bribe did not suggest an intention to report the matter to the police. Referring to the statements made by the witnesses at the trial, the court concluded that the applicant had not taken any steps to return the money to Mr A. or to inform anyone. In support of its findings, it referred to the statement made by Mr. D., to whom the applicant had also failed to report the bribe. The court also found that the police had waited to see whether the applicant would report the bribe and had acted when there had been no reaction on his part. The penalty was determined on the basis of, inter alia, the applicant’s behaviour at the trial, the fact that he had previously performed his duties in accordance with the regulations and his lack of a criminal record. 25. The applicant appealed, arguing that the whole incident had been planned in advance and that he had been incited to commit the offence by the police and Mr A., and, accordingly, had been the victim of entrapment. He complained that the trial court had not taken into consideration the statements of the two witnesses who worked at the restaurant, who denied that anyone other than the applicant and Mr A. had been present when the money had changed hands. The testimony of Mr P., who in addition to being Mr A.’s business partner was also a relative, was therefore false. He also submitted a written statement made by Mr T. on 9 April 2000, which read, inter alia: “... I saw Mr A. reach towards the pocket of [the applicant’s] shirt. I cannot say whether he put something in or took something out, but I remember that Mr A. left the restaurant immediately afterwards. At that moment, they did not speak to each other. After a couple of seconds [the applicant] quickly left the restaurant...” 26. The applicant further argued that the trial court had misinterpreted Mr D.’s statement concerning his behaviour after he left the restaurant. In that connection, he requested that another person, Mr O., be heard as a witness on the issue whether he had gone directly to his car or to his office after leaving the restaurant. He submitted a written statement of 9 April 2000 by Mr O. saying that he had seen the applicant go to his car after leaving the restaurant. He requested the Court of Appeal to hold a hearing. 27. At a hearing on 27 September 2000, the Štip Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s verdict. It found that the trial court had correctly established the facts and applied the law. It had given sufficient reasons for its findings and these had been substantiated by the relevant evidence it had taken into consideration. The Court of Appeal rejected the applicant’s allegations that he had been entrapped by an agent provocateur (Mr A.) and that he had not intended to keep the money, but to report the matter to the police. It noted that the applicant had told Mr A. that he was changing his working methods and that instead of paying the examination fees to the laboratory, he could pay them directly to the applicant. It also held: “... if the applicant had had no intention of taking and keeping the money, he should have reacted immediately. On the contrary, in Mr A.’s presence, he put the money in his pocket and said that it ‘covered’ only the current shipment and that they would agree upon further shipments. After Mr A. had left the restaurant, the applicant did not report the matter to the police or to anyone else. Indeed, he returned to his office and failed to inform Mr D., his colleague, about the gift received from Mr A. After several minutes, he left the office and was arrested by the police. If his intention was not to keep the money, he could have made that clear by reacting in the restaurant, especially as there were restaurant employees present. Instead, he went to his office and failed to inform Mr D. about the money...” 28. With regard to the alleged presence of Mr P. in the restaurant when the money was given to the applicant, the Court of Appeal held: “... Whether Mr P. was in the restaurant during the conversation between the applicant and Mr A. is irrelevant, as he had known about the earlier discussion between them and about the applicant’s statement that they would find a new way of dealing with matters concerning the imports and samples. Mr P.’s presence in the restaurant at the material time is irrelevant...” 29. With regard to the written statements of the witnesses and the applicant’s request for a further witness, Mr O., to be examined, the Court of Appeal held that the written statements had been examined by the trial court and were irrelevant to the final conclusion. 30. The applicant and his lawyer submitted separate requests for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда – “the extraordinary request”) before the Supreme Court. These requests were sent by registered mail and according to the delivery receipt, they were received by the trial court on 27 February and 19 March 2001, respectively. In the requests, the applicant complained, inter alia, that the lower courts had based their decisions on evidence which should not have been taken into consideration, as it had been obtained as a result of the police incitement to commit the offence and Mr A.’s role as an agent provocateur. 31. In a letter which was also sent by registered mail and received by the trial court on 12 June 2001, the applicant supplemented his extraordinary request, arguing that the facts as established by the Court of Appeal contradicted the findings of the trial court, and that its finding that Mr O. had already been examined by the trial court was erroneous. He also alleged that the Court of Appeal had not examined his appeal in full, in particular concerning the role of Mr A. as an agent provocateur and the role of the police. 32. On 21 March 2001 the public prosecutor rejected the applicant’s application to lodge a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court. 33. On 18 September 2001 the Supreme Court dismissed the extraordinary request lodged by the applicant’s lawyer, which it found had been submitted within the statutory time-limit, and upheld the lower courts’ decisions. It held, inter alia, that the applicant’s conviction had not been based on inadmissible evidence, but on a range of written and oral evidence adduced during the proceedings. It did not comment on the applicant’s extraordinary request and supplementary submission. 34. On 17 October 2001 the State President replaced the applicant’s sentence with a suspended term of two years’ imprisonment. 35. Section 142 of the 1997 Act provided that, where there was a suspicion that an offence had been committed, the Ministry of the Interior (“the Ministry”) was authorised to take measures in order, inter alia, to find the perpetrator or to prevent him or her from fleeing or going into hiding. In order to execute its tasks, the Ministry could, in addition to the measures and actions listed in the second paragraph of that section, take such other measures and actions as might be necessary. 36. Section 142-b of the new Act provides that, with a view to securing information and evidence which cannot be otherwise secured, or the gathering of which would entail difficulties, special investigating techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia, an organised group. A simulated offer and acceptance of a bribe is among the permitted special investigating techniques (section 142-b § 1 (4)). Special investigating techniques must not be used to incite the commission of an offence. Persons using the special investigating techniques in order to secure information and evidence necessary for a successful investigation are not liable to prosecution. 37. Section 142-c provides that information, documents and objects obtained through a special investigating measure may be used as evidence in criminal proceedings. 38. Section 142-d §§ 1, 2 and 3 provide that, at the pre-trial stage, special investigating techniques may be ordered by the public prosecutor or an investigating judge. After an investigation has been commenced, the use of such techniques may be ordered only by an investigating judge. At the pre-trial stage, the use of special investigating techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision, but only in respect of a person whose identity is unknown. 39. Under section 142-e §§ 3 and 4, special investigating techniques may be used for four months at most. Evidence obtained through special investigating techniques cannot be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or were contrary to the Act. 40. Section 32 (1) provides that an importer pays the examination fees concerning the sanitary validity of food and products for general use. 41. Section 3 of these Rules provides that the importer pays in the State budget the fees for taking and sending samples to laboratories. The importer pays to laboratories the fees for examination of samples, according to an invoice that the laboratory would deliver to him or her.