CASE OF DONČEV AND BURGOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicants were born in 1971 and 1970 respectively and live in Strumica. They were police officers. 6. On 3 March 2005 the public prosecutor ordered, under sections 42(2)(2) and 142-b of the Criminal Proceedings Act (see paragraphs 31 and 32 below), special investigative measures including secret surveillance, audio-visual recording, a simulated offer of a bribe and the use of undercover agents (the last two measures were to be applied by six police officers whose identity remained undisclosed in the order). The order was valid between 15 March and 13 May 2005. It was issued on the basis of a request from the Department for Control and Professional Standards within the Ministry of the Interior, which suspected that traffic police officers had been accepting bribes from traffic offenders. 7. On 28 April 2005 the applicants stopped a car near Strumica, since it was being driven at more than 30 km/h over the stipulated speed limit. The driver was a certain K.N. from Skopje (“the driver”). The applicants warned the driver and registered his name and the fact that they had warned him in the official record. They did not draw up an official report (записник), nor did they press charges against him. 8. On 8 June 2005 the Ministry of the Interior (“the Ministry”) lodged a criminal complaint with the public prosecutor, alleging that the applicants had accepted a bribe of 500 Macedonian denars (MKD) from the driver (who was in fact an undercover agent, see paragraph 6 above) in exchange for not drawing up an official report and pressing charges against him. The complaint stated that the first applicant had fully admitted to the accusations and the second applicant had partially done so. 9. On 12 July 2005 an investigating judge of the Strumica Court of First Instance (“the trial court”) opened an investigation into the allegation that the applicants had accepted a bribe. In the proceedings before the investigating judge the applicants remained silent. 10. According to the indictment of 19 September 2005, the applicants accepted the bribe in exchange for not drawing up a report and instituting misdemeanour proceedings against the driver. The public prosecutor requested that the trial court take oral evidence from the accused and admit the evidence obtained as a result of the order of 3 March 2005 (see paragraph 6 above): four photographs; and an audio and video recording of the discussion between the applicants and the driver of 28 April 2005 (see paragraph 7 above). 11. On 28 November 2005 the trial court admitted the evidence produced by the prosecutor. The applicants remained silent. On 30 November 2005 the court rendered a judgment in which it convicted the applicants and sentenced them to a suspended prison term of six months. On the basis of the audio recording of the incident, the court established that the driver had exceeded the speed limit. He had offered – and the applicants had accepted – money in exchange for not pressing charges against him. In this connection, the court noted that under the law the driver was liable to a fine (between MKD 4,000 and MKD 12,000) or thirty days’ imprisonment, as well as a compulsory security measure (driving ban), for such an offence. 12. The applicants’ legal representatives, Ms M.G. and Mr V.Š., appealed against the judgment, arguing that there was no evidence to corroborate the applicants’ guilt. The audio evidence attested that the driver had offered the applicants money, but it did not establish that they had accepted it. Indeed, no bank notes marked in advance were found in their possession. The applicants further argued that under the applicable regulation, they had been authorised to warn the driverThe first applicant challenged the credibility of the audio recording, arguing that the transcript of the audio material was incomplete. The second applicant further complained that the trial court had neither examined the driver, nor confronted them with him. 13. On 28 June 2006 the Štip Court of Appeal accepted the applicants’ appeals and ordered a re-examination of the case. In so doing, it found that the lower court had incorrectly established the facts and had not provided sufficient reasons for its judgment. In this connection, it stated that neither the photographs nor the audio evidence had established that the applicants had accepted the bribe from the driver, who had not been examined. It therefore instructed the trial court to re-examine already admitted evidence and to question the driver in order to establish whether he had offered, and the applicants had accepted, MKD 500 in exchange for not pressing charges against him. It further stated: “... other evidence should be admitted if necessary (confrontation between the accused and (the driver)).” 14. At a hearing, before the trial court, held on 15 May 2007, the applicants denied that they had accepted money from the driver. They stated that they had been authorised, under the law, to warn him. They further contested the audio recording, arguing that there were gaps and interruptions in it. Mr V.Š., the applicants’ legal representative, asked the court to hear oral evidence from the driver, as ordered by the Court of Appeal (see paragraph 13 above), and to obtain information from the Ministry as to whether the money had been marked. 15. On 21 May 2007 the trial court asked the Ministry to provide the name and address of the driver in order to examine and confront him with the applicants, “as instructed by the higher court”. It also sought information as to whether, under the order of 3 March 2005 (see paragraph 6 above), the money allegedly given to the applicants had been marked. In the absence of a reply, on 20 June 2007 the court repeated its enquiry. On 28 June 2007 the Ministry informed the court that the money had not been marked. That would have been the case had special investigative measures (audio and video recording) not been ordered. It further stated that the undercover agent (лице со прикриен идентитет) who had been used to simulate the offer of a bribe could be examined as a protected witness under section 147(2) and (3) of the consolidated version of the Criminal Proceedings Act (“the Act”), (which corresponded to section 142-c of the Act as amended in 2004, see paragraph 33 below). 16. In a hearing held on 5 October 2007 the applicants objected to the court’s examining the driver. In this connection, they stated that there were three persons with the same initials (K.N.) as the driver employed in the Ministry. 17. On 7 December 2007 the trial court examined the driver. According to the depositions taken on that date, he was regarded as a protected witness (заштитен сведок) and his examination was carried out under section 293 of the Act (which corresponds to section 270-a of the Act of 1997 as amended in 2004 (see paragraph 36 below)). The relevant parts of the court record of that date read as follows: “The protected witness should be examined in a special room only in the presence of the judge and the public prosecutor in order to protect his identity. Since there is no such room in the court building, [the applicants] and their representatives, (as well as) the entire public, were ordered, on the basis of an advance agreement (претходен договор), to go into the waiting room. The accused and the lawyers did not object. ... The witness, whose pseudonym is K.N. (protected witness) from Skopje, fifty-years of age ... having been warned about the legal consequences of false testimony, states: ‘At 3 p.m. on 28 April 2005, in accordance with the [public prosecutor’s] order, I drove to Strumica together with two other persons ... I deliberately exceeded the speed limit assuming that there would be a road patrol ... I was stopped ... (then he described the events concerning another car which the applicants had stopped at that time, when (one of the applicants) had allegedly received MKD 500 from the driver of that car) ... the policeman who took the money from the other driver approached me and I said that it was unfair that they should punish me unlike the other (driver), who had paid ... Then the other policeman, who still had (in his hands) my (driving) documents, told me ‘Ok, we won’t punish you either’ and gave the documents back to me. I asked them whether I should also reward them for having not punished me, as the (other) driver had done, to which (one of the applicants) replied ‘It will be fine if you give something’. I asked ‘how much should I give?’, and he replied ‘There is no pricelist for that, it’s up to you’. Then, I said ‘I’ll give you as much as (the other driver), MKD 500’. I took out from my pocket MKD 500 and gave them to (one of the applicants) ... I asked them whether they would press charges against me or issue any penalty, to which (one of the applicants) replied ‘Keep your mouth shut and drive on’ ... 18. The public prosecutor further asked the driver whether the money had been marked, to which he replied negatively. 19. The record further stated: “Since there are no further questions, the court decides to remove the protected witness from the court room and to call the accused and their lawyers. A transcript of the statement of the protected witness should be given to them so that they may put questions to him through the court, to which the protected witness should reply. The accused and their lawyers were called to enter the court room and at that moment, they said, in a loud voice ‘We request exclusion of the adjudicating judge, the panel, the trial court and the Štip Court of Appeal, since (the judge) is conducting the proceedings unlawfully and is not following the instructions of the Appeal Court. It is so since we were removed from the court room for 45 minutes, instead of being confronted with the witness. We suspect that no one gave a statement, all the more so since the accused have already met the protected witness”. 20. The court ordered an adjournment. On 7 and 13 December 2007 the presidents of the trial court and the Štip Court of Appeal respectively rejected the applicants’ requests for exclusion. 21. A hearing held on 1 April 2008 was attended by the applicants and Ms M.G., their lawyer. The driver was absent. The court stated that there was no evidence that he had been properly summoned for the hearing. The applicants were served with a copy of the court record of 7 December 2007 and the driver’s statement. The court minutes stated: “... (the applicants) were told that they could put questions in writing, which the court would then forward to the protected witness in order for him to reply.” 22. On 9 May 2008 the trial court held a hearing. It was attended by the applicants and Mr V.Š., their lawyer. The driver was not present, despite the fact that he had been properly summoned. Mr V.Š. stated: “I decline to examine the protected witness, K.N. and I object to the court record of 7 December 2007 since it is contradictory and untrue (Се откажувам од распит на заштитениот сведок К.Н. и приговарам на записниикот од 07.12.2007 бидејќи е контрадикторен и невистинит).” 23. On 15 May 2008 the trial court held another hearing, at which the applicants confirmed that they had received the bill of indictment and understood the charges against them. Both applicants maintained that they would be represented by Mr V.Š. They further stated: “I maintain the statement given at the hearing of 15 May 2007 [see paragraph 14 above] and I have nothing to add”. 24. The court then read aloud the driver’s statement of 7 December 2007 and admitted as evidence the public prosecutor’s order, four photographs, as well as the audio and video recording of the critical event. The applicants made no reference as to the examination of the driver. 25. In the concluding remarks, Mr V.Š. denied that there was any material evidence that the applicants had committed the crime imputed to them; in particular, the video and audio material did not establish that they had received any money from the driver, nor had any marked bank notes been found in their possession. He further stated that: “... we object to the use of the term ‘protected witness’ since it is not disputed that the (applicants) and (the driver) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness.” 26. Both applicants stated: “I fully adhere to the concluding remarks of my representative. I want to add that I’m not guilty because I have not received any money”. 27. On 16 May 2008 the trial court rendered a judgment in which it found the applicants guilty and sentenced them to six months’ imprisonment, suspended for two years. It established that they had accepted the bribe from the driver, a police officer who had been following the public prosecutor’s order to use special investigative techniques. They received MKD 500 in exchange for not pressing charges, despite the fact that the relevant law provided for a fine or thirty days’ imprisonment, coupled with a security measure, for such an offence. The audio evidence established that the driver had exceeded the speed limit and had offered – and the applicants had accepted – the money. In this connection, the court stated: “Following the instructions of the higher court, the (trial) court examined the driver with the pseudonym K.N. as a protected witness. He confirmed that he had been stopped on the day in question, since he had deliberately exceeded the speed limit ... [the applicants] had agreed to accept a bribe in the amount of MKD 500 in exchange for not drawing up a report and pressing charges. In this context, the statement of the protected witness and the audio material are totally consistent ... In the note [of 28 June 2006], [the Ministry of the Interior] submitted that the identity of the witness K.N. was protected, i.e. that he was a protected witness. [For this reason] the court did not confront him with [the applicants].” 28. The applicants appealed against the judgment and maintained that there had been insufficient evidence that they had accepted the money. They argued that there had been no written warrant authorising the operation that had led to the proceedings against them; that the bank notes had not been marked; that they had not taken possession of any such bank notes; that the audio material had not established that they had accepted the bribe; and that the warning issued against the driver had been registered in the official records and had been prescribed for such offences. They further complained that their conviction had been based, to a decisive extent, on the driver’s statement and the audio material, the credibility of which they had challenged. As to the driver, they complained that it had been unreasonable to use him as a protected witness since they had already met him. They further complained that: “The statement (of the driver) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused”. 29. In a public hearing held on 18 November 2008 in the presence of the applicants and their lawyers, the Štip Court of Appeal dismissed the appeal lodged by the applicants, finding no grounds to depart from the established facts and reasons given by the trial court. It found that the special investigating measures (audio-visual recording and the use of a protected witness) had been ordered by the public prosecutor in accordance with the Criminal Proceedings Act (see paragraphs 31 and 33 below). Accordingly, the judgment could be based on that evidence and the driver’s statement, as lawfully obtained evidence. The court further stated that: “Having regard to the Court of Appeal’s judgment Кж.бр.474/06 of 28 June 2006, at the re-trial, the trial court summoned, and at a hearing (главен претрес) it examined the witness K.N., who was driving the car at the relevant time ... This witness was considered a protected witness by the court. On the basis of an agreement reached with the accused and their representatives, [the witness] was examined in their absence. However, after his examination, the court provided the accused and their representatives with the opportunity to put questions through the court. ... For the offence committed (by the driver), the accused neither drew up a report nor did they press charges against him, despite the fact that the offence was of a more serious nature ... they warned him orally, although a fine and a compulsory security measure – a driving ban – are prescribed for this offence. The witness K.N. provides an objective and detailed description of the events ... Indeed, the MKD 500 bank note which the accused received from this witness had not been marked and secured as evidence, but the court undoubtedly established, on the basis of the statement of this witness, that he had offered – and (the applicants) had accepted – the money as a bribe. The statement of this witness is corroborated by the written transcript of the audio material ... so, the established facts are not put into question ...” 30. This judgment was served on the applicants on 15 and 19 December 2008 respectively. 31. Under section 42(2)(2) of the Act, as regards criminal offences subject to automatic prosecution by the State, the public prosecutor may order the use of a special investigative technique in pre-trial proceedings under the conditions and in the manner specified by law. 32. Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspecting that certain criminal offences have been committed by an organised group. Secret surveillance, audio-visual recordings, a simulated offer of a bribe and the use of undercover agents (лица со прикриен идентитет) are among the special investigative techniques permitted (section 142-b(1) (3), (4) and (6)). 33. Section 142-c provides that information, documents and objects obtained by means of special investigative measures may be used as evidence in criminal proceedings. The undercover agents can be examined as protected witnesses. Their identity is classified (службена тајна). 34. Under section 142-d(3), the use of special investigative techniques at the pre-trial stage 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 following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown. 35. Under section 142-e(4) of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by the investigating judge or the public prosecutor or contrary to the Act. 36. Under section 270-a of the Act, the public prosecutor, investigating judge or trial judge must take measures to ensure the effective protection of witnesses if there is a risk that they may be threatened or that their life, health or physical integrity may be endangered. Their protection must be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings. Protected witnesses are examined in the presence of the public prosecutor, the investigating judge or the trial judge, in a location which guarantees the protection of their identity, unless they agree to be examined using special streaming media, for which a court order is needed. An unsigned copy of the witness’s statement is forwarded to the accused and his or her representative, who can put questions in writing through the court. 37. In accordance with section 339(1), the court decided on the basis of facts and evidence admitted at the trial. 38. Under section 380(3) of the Act, the trial court was bound to take all procedural actions and to discuss all disputed issues indicated in the judgment of the second-instance court. 39. Under section 270-b of the Act, special arrangements for the examination of a protected witness may involve concealment of his or her identity and face. If the arrangements concern the witness’s personal information, he or she may produce evidence under a pseudonym (псевдоним). Otherwise, the general rules for the examination of witnesses apply. A witness who is examined under a pseudonym may also have his or her face concealed (прикривање на изгледот) with the use of special streaming media, which distort one’s voice and face. The protected witness must be placed in a special room that is physically separated from the courtroom in which the investigating or trial judge, as well as other persons attending the examination, are present. 40. Under section 339(3) of the Act, the judgment cannot be based solely on evidence given by a protected witness and obtained by means of witness protection.