CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 mai 2016

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THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA   (Applications nos. 26711/07, 32786/10 and 34278/10)                 JUDGMENT     STRASBOURG     12 May 2016   FINAL   17/10/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ledi Bianku, President,   Mirjana Lazarova Trajkovska,   Paul Mahoney,   Aleš Pejchal,   Robert Spano,   Armen Harutyunyan,   Pauliine Koskelo, judges,   and Abel Campos, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 26711/07, 32786/10 and   34278/10) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Macedonian nationals, Ms Stanislava Poletan (“the first applicant”) and Mr   Alija Azirovik (“the second applicant”), on 12 June 2007, as well as 7   and 16 June 2010 respectively. 2.     The first applicant was represented by Mr D. Dangov and the second applicant by Mr F. Medarski, both lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3.     The applicants alleged, in particular, that their trial had violated their rights under Articles 6 and 7 of the Convention. 4.     On 4 September 2014 these complaints were communicated to the Government and the remaining parts of the applications were declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1968 and 1973 and live in Belgrade (the first applicant) and Skopje (the second applicant). A.     Background to the case 6.     As established in the criminal proceedings described below, on 7   January 2007, during a search carried out by the Macedonian Customs at the Blace border crossing (between the respondent State and Kosovo [1] ) 434.555 kg of cocaine were found hidden in rectangular packs submerged in hermetically sealed cans of acrylic paint. The cargo, which had been loaded onto a truck driven by the second applicant in Bar (Montenegro), was destined for Greece. B.     Criminal proceedings against the applicants 7.     On 7 January 2007 the Criminal Investigations Bureau at the Ministry of the Interior (“the Bureau”, Одделение за криминалистичка техника ) carried out an expert examination in order to determine the quantity and quality of the substance found in the truck. On 11 January 2007 the Bureau carried out a further examination. Both reports (TD no. 1/2007 and TD no.   8/2007) established the gross weight of the substance, which was pure cocaine. 8.     On 8 January 2007 the public prosecutor requested that an investigating judge from the Skopje Court of First Instance (“the trial court”) open an investigation against the applicants on account of reasonable suspicion of trafficking 438.170 kg of cocaine. In the request it was stated that the drugs had been packed in 389 packages and stored in 68   cans containing acrylic paint. 9.     On the same date, the investigating judge heard the second applicant (the first applicant could not be traced) in the presence of Mr D. Dangov, a lawyer of his own choosing (after 11 May 2007 the second applicant was represented by a different lawyer). On this occasion, the second applicant confirmed that he had known the first applicant for many years and that on 29 December 2006 she had contacted him regarding the transportation of acrylic paint from Bar to Greece. She had given him the telephone number of a certain N. (a forwarding agent) in Montenegro regarding the shipment. He had spoken to N. by telephone, but he had not met her. His truck had been searched at Kula border crossing (between Kosovo and Montenegro) and in the city of Pec, Kosovo, after which he had been escorted by police and customs to the border crossing with the respondent State. At around 5   pm. on 6 January 2007 he had arrived at Blace border crossing. The Macedonian customs officials had instructed him to leave the truck overnight and to return the next morning. He had complied with that instruction. On 7 January 2007 the truck had been searched and drugs had been found. The second applicant denied knowing that he had been transporting drugs. 10.     Later that day, the investigating judge opened an investigation and issued detention orders for a period of thirty days in respect of the applicants. 11.     On 9 January 2007 the first applicant appointed Mr D. Dangov to represent her in the proceedings. On 11 January 2007 the investigating judge issued an international arrest warrant in respect of the first applicant. On 13 January 2007 she was arrested in Serbia and detained pending extradition in the respondent State. 12.     On 9 May 2007 the first applicant’s lawyer requested permission to inspect the case file. A handwritten note on his application indicated that “inspection of the case file (wa)s allowed”. On 10 May 2007 the first applicant was incarcerated in Skopje detention facility. An official note drawn up by the investigating judge indicated that on that occasion she had been aware of the public prosecutor’s application and the decision of the investigating judge to open an investigation. 13.     On 11 May 2007 the investigating judge heard the first applicant in the presence of her lawyer. She stated that she would make a statement once she was able to consult the available evidence. On 16 May 2007 she was heard for the second time. In the presence of her representative, she confirmed that she had contacted the second applicant, who had agreed to transport the paint from Bar to Greece for 1,100 euros (EUR). She had also given him the contact details of N., the Montenegrin forwarding agent. The first applicant denied that she was aware that drugs had been planted in the cans. 14.     On 28 May and 4 June 2007 the first applicant’s lawyer requested permission to consult the case file, arguing that his previous requests had remained unanswered. On each application there was a handwritten note indicating that the requests had been granted. 15.     On 21 June 2007 the public prosecutor lodged an indictment against the applicants on account of trafficking 486.705 kg of cocaine ( неовластен промет на наркотична дрога-кокаин ) packed in 432 packages found in 76 cans. The indictment relied on considerable verbal and material evidence, including the Bureau’s expert reports (see paragraph 7 above). 16.     On 26 June 2007 the first applicant’s lawyer requested access to the case file. According to a note, which he duly signed, on 27 and 28   June 2007 he inspected the file for five hours. 17.     On 2 July 2007 the first applicant objected to the indictment arguing, inter alia, that she had not been given the opportunity to consult the case file and prepare her defence. On 9 July 2007 a three-judge panel of the trial court dismissed the objection, holding that on 27 and 28 June 2007 the first applicant had inspected the case file. 18.     On 10 July 2007 the first applicant’s lawyer requested permission to copy some documents from the case file. According to a handwritten note on the application, his request had been allowed upon payment of the court fees. On 18 July 2007 the court allowed Mr Lj.M., a lawyer whom the first applicant’s mother had in the meantime appointed to represent the first applicant, to consult the case file. 1.     Proceedings before the trial court 19.     At a hearing held on 7 August 2007, the trial court heard the first applicant, who reaffirmed the deposition she had made before the investigating judge (see paragraph 13 above). In addition, she stated that a certain J. (a Greek forename), from Athens, whose surname, residence and all other contact details were unknown to her, had owed her money and had offered to provide her instead with paint from Venezuela. In the second half of 2006 she had imported two containers of paint from Venezuela, the first being shipped to Rieka (Croatia) and the second to Thessaloniki, Greece. She denied having had any contract with the paint producer and exporter in Venezuela or with J. The latter had told her that a certain Sandrina, who allegedly worked with him, could assist her in her dealings with the exporter in Venezuela. J. also had given her the contact details of a buyer in Greece regarding paint from a third container (the subject of the proceedings) and the telephone numbers of N.V. and L.S. in Montenegro, whom she had called regarding the cargo concerned. (When contacting L.S., the first applicant had introduced herself by name as the owner of company M., saying that she was calling upon instructions from a certain Sandra). She reiterated that she had hired the second applicant to transport the paint from Bar to Greece, had handed over the necessary documentation to him, and had provided him with the contact details of N.V. and L.S. in Montenegro. She also confirmed that around that time she had talked with the second applicant many times on the telephone. Lastly, she denied that she had discussed any drugs-related matter with him or any other person. 20.     On 8 August 2007 Mr Lj.M. requested a copy of certain material evidence, which was allowed on 9 August 2007. 21.     At a hearing on 8 August 2007, the second applicant stated that at the meeting with the first applicant on 29 December 2006, they had agreed that he would transport the paint from Bar to Greece, for which he had been paid EUR 1,100. On 3 January 2007 he had arrived in Bar and had contacted N.V., the Montenegrin forwarding agent, and after the cargo had been loaded onto the truck, he had left for Pec, where the truck had been searched twice using police dogs. The truck had remained at the Pec customs terminal for two nights (the first night the second applicant had remained in the truck; the second night, he had stayed in a nearby hotel). The second applicant had arrived at Blace border crossing at 5 pm. on 6   January 2007 and the truck had remained at customs terminal overnight; the second applicant had spent that night at home and had returned to the terminal at 9 am. next morning. On 7 January 2007 the truck had been searched and the cans had been examined in a special X-ray van. 22.     At hearings on 13 and 14 September 2007 held in the presence of the applicants and their representatives, the trial court decided to hear oral evidence from O.B. and N.N., the experts employed in the Bureau who had drawn up the reports of 7 and 11 January 2007 (see paragraph 7 above). It also accepted a request from the public prosecutor that witnesses N.V. and L.S. (who worked at Bar Harbour) from Montenegro produce oral evidence at the next hearing fixed for 16 October 2007 or, if prevented, give evidence before a competent court in Bar (in the latter case, transcripts of their depositions would be read out at the trial). The applicants did not object. The trial court requested that the Ministry of Justice deliver a court summons to N.V. and L.S. for the hearing scheduled for 16 October 2007. It also attached a letter ( замолница ) requesting the competent court in Bar, Montenegro to examine the witnesses should they be prevented from attending the hearing of 16 October 2007. The letter contained 14 questions formulated by the trial judge which the court in Bar was asked to put to the witnesses. When there was no reply, the trial court reiterated its request in letters dated 2 and 10 October 2007 and sent to the Ministry of Justice. 23.     On 10 October 2007 an investigating judge from the Podgorica District Court examined N.V. The relevant parts of the court record of her examination read as follows: “... I remember that around New Year’s Eve 2007, L.S ‒ who works at Bar Harbour ‒ called in order to ask me to send a container to Belgrade for a friend of hers ... L.S. gave my telephone number to certain Sandra. Sandra called me and introduced herself as working for (the first applicant’s) company. She asked me to prepare documentation so that the container would be transported to Greece, to Thessaloniki instead of to Belgrade ... I do not know [the applicants]. I did not see [the second applicant] when he arrived in Bar. I just sat in the office and spoke by telephone and I knew about him because he called to tell me that he would come to the office to provide some documentation for the goods, which he did not give to me, but to my colleague N.K. ...” 24.     On 12 October 2007 the Montenegrin Ministry of Justice forwarded the transcript of N.V.’s statement to the Ministry of Justice of the respondent State. 25.     On 15 October 2007 the investigating judge of Podgorica District Court examined L.S. The relevant parts of her statement (which was sent on the same day to the Ministry of Justice of the respondent State) read as follows: “... on 22 December 2006 I received a telephone call from N.P. (from Greece) ... in order to give him the contact details of a person working for a company, M.S., that handled containers ... I called N.[V.] and told her that a friend had asked me for information regarding this matter ... Half an hour after this discussion with N.[V.], I received a telephone call from certain Sandrina ... who told me that the container belonged to her and that it should not go to Belgrade, but to Greece, so she needed a forwarding agent ... on 26 December 2006 I travelled to Bologna, Italy ... While I was in Bologna, I received a telephone call from a man who spoke English and who introduced himself as P. (a Greek name) ... telling me that the container which needed to be taken to Bar belonged to him ... on 3 January 2007 a man who introduced himself as Alija called me and said that he was a driver and that he had come in order to collect the goods in that container ... I called N.V. and told her that the driver had arrived. N.[V.] told me that the driver should go to the car park at Bar Harbour. When Alija called me, I told him what N.V. had said and gave him her number ... on 6 or 7   January 2006 P. called again and told me that the driver needed some documents ... I stress that I had nothing to do with the transportation or contents of that container, nor I could envisage what was inside. Later, I heard on the media that it concerned a shipment of paint and the documents that I saw referred to some paint ... I did not see or speak with [the applicants] ... I do not know if (the man called) Alija whom I mentioned as a driver in this story is [the second applicant] about whom you ask me ...” 26.     Both witnesses gave their evidence under oath and were warned of the consequences of false testimony. 27.     On 16 October 2007, in the presence of the applicants and their representatives, the court heard evidence from the experts O.B. and S.K., a superior expert in the Bureau who had also been involved in drawing up the expert reports (TD no. 1/07 and TD no. 8/07). The expert N.N. could not attend the hearing since she had gone on a business trip to France. Both experts were warned about legal consequences of false testimony. S.K. stated, inter alia , that: “... the cocaine examined is pure cocaine ... the net weight ... was not established. ... after cocaine had been discovered, I went with my colleague O.B. to the Blace border crossing in order to carry out an initial examination so as to determine what was involved. The drugs were brought to our laboratory ... At Blace border crossing, (we) cut open the packages and took a small quantity ... which was sufficient to determine the nature of the substance ... that happened at the border crossing, where several packages were opened; that is a standard procedure ... In the laboratory, the packages were brought in, as far as I remember, in paper bags, but I’m not sure. On 7 January 2007 ... the drugs were brought (into the laboratory) ... It was about 1   pm. ... On 8 January 2007 43 packages were brought into the laboratory. For a larger quantity of drugs, in principle, (we apply) the UNDCP recommendations ... In the present case, we examined the square root of the total number (of packages) which was in compliance with these recommendations. Of the additional 43 packages, we examined every third package because it concerned a smaller quantity compared to packages received on 7 January 2007 ... The laboratory is accredited by UNDP for drug analysis and is regarded as reliable. The laboratory is not accredited for ISSO standards. [The latter] is a formal issue and it concerns a long and expensive procedure, but [that] does not mean that in terms of technique, equipment and means of work, there are any shortcomings ... The cocaine we analysed is the biggest quantity so far examined ... As provided for in the UNDCP recommendations, if (there are no more than) 10 packages, then all (the packages) are examined; if (there are) up to 100 packages, then every tenth package is examined; if (there are) more than 100 packages, the quantity to be analysed is the number calculated to be a square root of all the packages ...” 28.     The expert O.B. stated, inter alia , that: “... When preparing the expert report, all packages had been analysed using colour tests; 20 packages, which were randomly selected from the total of 389 packages in accordance with the UNDCP recommendations, were analysed by means of ... (methods of analysis) ... The packages were brought into the laboratory for examination in 39 black plastic bags ... When we arrived at Blace border crossing, the packages were lined up at the roadside; they were covered with polycolor ; we took samples for analysis from several packages ...” 29.     The applicants objected to both the experts’ statements and the expert reports, arguing that they had been drawn up by the Ministry of the Interior, the same body that had instituted the proceedings against them. 30.     The hearing continued on 17 October 2007 when “an employee from the court archives department entered (the court room)” and handed the trial judge the transcripts of the statements N.V. and L.S. had given before the Podgorica District Court (see paragraphs 23 and 25 above), translated into Macedonian. The trial judge noted that N.V. and L.S. had been prevented from attending the scheduled hearing due to “other obligations” and “a trip to Italy” respectively. Therefore, she proceeded to read out the witnesses’ statements. She also ordered that the Bureau supplement the expert reports TD 1/2007 and TD 8/2007 with information regarding the drug’s net weight ( дополнување на вештачењето ). 31.     On 2 November 2007, outside the hearing ( вон рочиште ), the trial court ordered the Bureau to draw up a fresh expert report regarding the quality and quantity of the substance found in the cans. The order was communicated to the parties. 32.     On 9 November 2007 S.K. and O.B., the experts employed by the Bureau, drew up a fresh expert report (no. 1399/07), the relevant parts of which read as follows: “In order to determine the nature of the substance and in accordance with the recommendations of ENFSI (European Network of Forensic Sciences Institutes) and UNDCP (United Nations Drug Control Program) regarding the analysis of multiple samples, 27 randomly-chosen packages ... were analysed ... out of the total number of packages (432) ... The net weight of the material taken from the analysed packages was 27.30 kilos ... On the basis of the analysis made, it is confirmed that the analysed material taken from the packages was cocaine. This confirms the earlier findings ... specified in the expert reports nos.1/07 and 8/07 of 7 and 11 January 2007, respectively. The total net weight of seized packages (432) was established (on the basis of ENFSI recommendations) by means of a mathematical and statistical methodology ... On the basis of the calculations done, it is concluded that the total net weight of the substance (found) in the packages was 436.879 kg ± 2.324 kg.” 33.     Expert report no. 1399/07 was presented at a hearing dated 15   November 2007 in the presence of the applicants and their representatives. Evidence from the experts S.K. and O.B. was also heard. S.K. stated, inter alia, that: “... [the Bureau] is the only accredited and reliable laboratory in the Republic of Macedonia competent to analyse seized drugs. We are authorised by UNDCP and we apply its recommendations ... Since 1997, when we started work, the central laboratory in Vienna has never voiced any complaints about our analyses ... In the present case, which concerned more than 100 packages, namely 432, after we had determined the square root of 432, which is 20.78, we analysed 21 packages, which were chosen at random. I stress that these 21 packages were analysed fully using all the methods specified in the recommendations. That does not mean that some of the packages were not analysed at all. Regarding expert reports nos.1/07 and 8/07, all 432 packages were analysed using so-called speedy methods in order to determine the substance. Then, certain packages that were randomly chosen and were fully analysed using all methods ... Asked by the judge whether in the preparation of the expert report commissioned by the court the expert had received any instructions from anyone, including their superior, she replied: ‘I drew up the expert report commissioned by the court, as well as the earlier reports, in good faith and according to my best knowledge. [The Bureau] operates within the Ministry of the Interior, but it is independent in its work. In my career, no superior has ever influenced any expert examination nor would I accept anything of that kind ...’” 34.     O.B. concurred with S.K. The applicants did not object to the expert report and the experts’ statements but they complained that a prosecuting body, such as the Ministry of the Interior was in this case, could not carry out an expert examination of the substance, which anyway should have been examined in its entirety (the results could not be based on an analysis carried out on randomly chosen samples). The applicants contested S.K.’s argument that the Bureau was independent and was the only accredited laboratory for such an examination. In this connection they requested that the court commission an alternative expert report by an independent expert body, national or foreign. 35.     As to the applicants’ objections regarding the expert evidence, the trial court stated: “... [The applicants’] request for an alternative expert examination of the quality and quantity of seized packages by an independent institution is not allowed since the expert evidence adduced by the court was produced by the Ministry of the Interior; in accordance with the Criminal Proceedings Act, an expert report may be drawn up by a State body; in more complex cases, such as the present one, such expert examination is entrusted, in principle, to a State body. Expert report no. 1399/07 of 9 November 2007 was drawn up by [the Bureau] on the basis of a prior court order. The request ... for a complete analysis of all seized packages is refused since ... some of the packages had been handed over to the experts (for examination), as provided for in the UNDCP and ENFSI recommendations ...” 36.     On 16 November 2007 the trial court accepted the applicants’ request for an on-site inspection of the (27) packages (kept in a special department of the trial court) examined by the Bureau’s experts and the subject matter of expert report no. 1399/07. The inspection was carried out in the presence of the applicants and their representatives. As indicated in the court record of that date, there were three paper bags. In each bag there were nine packages containing white powder ( бела прашкаста материја ). Since “some packages ... were of dimmer and (others) of brighter white colour ( со нијанси на потемна и посветла боја )”, the applicants’ representatives argued that “the drugs were not of the same quality, that is to say of the same pureness.”   37.     At a hearing dated 27 November 2007, the parties presented their concluding remarks. The public prosecutor specified the indicted offence, accusing the applicants of having participated, as a group, in the unauthorised transportation of 434.555 kg of cocaine. The applicants’ lawyers reiterated that the expert evidence had been produced by the Bureau, which had operated within the Ministry of the Interior, as a prosecuting body and that the third expert report that had been commissioned by the court had been of no relevance since it had been produced by the same experts who had been involved in the earlier expert examinations. They also complained that the expert evidence admitted had been inconsistent regarding the quantity of drugs seized (see paragraphs 8 and 15 above) and the type of paint in which the packages had been submerged (see paragraph 28 above). Furthermore, according to this evidence, the substance found had been pure cocaine, which, according to them, was impossible. They also contested that the statements of the witnesses (N.V. and L.S.) examined in Montenegro had been obtained in violation of their defence rights. 38.     On 30 November 2007 the trial court delivered a judgment in which it found the applicants guilty of drug trafficking, an offence punishable under Article 215(2) in conjunction with sub-paragraph 1 of the Criminal Code (see paragraph 53 below) and sentenced them to 14 years and six months’ imprisonment. The operative part of the judgment read as follows: “... on an unspecified date before the end of December 2006, [the applicants] (acting) as a group ( како повеќе лица ), were participants in the unauthorised transportation of a shipment of narcotic drugs – cocaine ( неовластено пренесување на наркотична дрога-кокаин ). After [the first applicant] had contacted persons of unknown identity who intended to transport drugs from Venezuela, (she) had agreed with them to transfer the drugs to the Republic of Greece ... on 29 December 2006 (she) contacted [the second applicant] in order to arrange with him the transport of the drugs from [Montenegro] to [Greece] ... paid him EUR 1,100 [and provided him with the necessary supporting documentation]. On 2 January 2007 [the second applicant] drove a truck ... to [Montenegro]. On 4 January 2007, 882 plastic cans of acrylic paint were loaded onto [the truck]. Cocaine was planted in some of them ... [He] drove through Kosovo towards the Republic of Macedonia and the Republic of Greece ... At around 5 p.m. on 6 January 2007 he arrived at the Blace border crossing (on the Macedonia-Kosovo border). On the morning of 7 January 2007, during a routine inspection by Customs, which continued on 8 January 2007, 432 packages of cocaine were discovered in 76 cans containing acrylic paint. The total weight of the drugs was 434.555 kg.” 39.     The judgment, which runs to fifty-five pages, was based on the following evidence: the applicants’ statements; statements from four witnesses for the second applicant (including his wife and father, who confirmed that he had spent the night 6 January 2007 at home and had returned the next morning to Blace customs terminal); statements from three customs officials who searched the truck at the customs terminal; the statements given by the experts S.K. and O.B.; the statements of witnesses L.S. and N.V. who were questioned by the investigating judge of the Podgorica District Court; and a considerable amount of material evidence, including expert reports nos. 1/07, 8/07 and 1399/07, and a detailed list of calls made from the applicants’ mobile phones. 40.     In addition to the facts indicated above (see paragraph 6 above), the trial court also established that the second applicant had arrived in Bar on 3   January 2007; that he had called N.V. regarding the shipment; that on 4   January 2007 the cans had been loaded onto his truck and he had left for Kosovo; that he had spent the night of 4 January in the truck at Pec customs terminal; that on 5 January 2007 the truck had been searched (using police dogs) at that terminal; that on the night of 5 January the truck had remained at the terminal and the second applicant had spent the night in a hotel; that he had returned to the terminal on 6 January; and that at 2 pm. that day he had left, escorted by Kosovo customs, for the Blace border crossing, where he had arrived at around 5 pm. on 6 January 2007. The truck had remained at the customs terminal overnight and the second applicant had spent the night at home. At 8.45 am. on 7 January 2007 he had come back to the terminal, where the truck had been searched and drugs had been found with the assistance of an X-ray van. On the basis of a detailed list of telephone calls, the court established that there had been intense communication between the applicants between 20 December 2006 and 10 January 2007 (the first applicant had called the second applicant 124 times, and he had called her 28 times), and that they had telephoned N.V. and L.S. Furthermore, the Greek company specified in the freight documentation as the recipient of the paint did not exist according to Greek official records. 41.     The court referred to the expert reports and considered the experts’ statements (see paragraphs 33 and 34 above) on the basis of which it established the relevant facts regarding the quality and quantity of the drugs found. It further reiterated the reasons for which it had refused the applicants’ requests for an alternative expert examination (see paragraph 35 above). 42.     The trial court presented an outline of the statements made by L.S. and N.V. and stated, inter alia, that: “... The court fully accepts the statements of witnesses N.V. and L.S.... The statements of these witnesses were obtained on the basis of a request (addressed to the Montenegro’s authorities) ( по пат на замолница ) issued after a prior decision made on record at the trial. The parties and [the applicants’] representatives had no comment (about that decision) [nor] had they voiced any objection when these statements were read at the trial. They did not make any suggestions regarding these statements ...” 43.     As to the second applicant, the trial court stated, inter alia, that: “... The court assessed [the second applicant’s] defence that he had not entered into an agreement with [the first applicant] to transport drugs ..., but rather that the agreement concerned the transportation of acrylic paint ... that drugs had never been mentioned in their discussions, that the freight documents referred only to acrylic paint ... that during the transport, he had spoken about 5 times by telephone with [the first applicant]. The court did not accept the defence of the accused since it was contrary to his actions and the admitted evidence in support of the indictment ... [The second applicant] does not deny that by having transported the paint, he also transported the cocaine ... The court cannot accept [his] defence that he did not know that there was cocaine in the cans because it is not supported by any evidence and it is contrary to his actions ‒ he transported the drugs from Bar to the Macedonian border and (contrary) to admitted evidence – cocaine found in the cans, which was noted in the certificate of temporary seized objects ... signed by [the second applicant] who did not contest the signature and the confiscation of the cocaine at any stage of the proceedings ...” 2.     Proceedings before the Skopje Court of Appeal 44.     The applicants appealed against the trial court’s judgment. They reiterated that the experts had not been independent (given that the Bureau had operated within the Central Police Forces Unit) and in this respect they referred to the Court’s judgment in the Stoimenov case (see Stoimenov v.   the   former Yugoslav Republic of Macedonia , no. 17995/02, 5 April 2007). The first applicant further alleged that the trial court had refused her request for an alternative expert examination, notwithstanding that the Forensic Institute ( Институт за Судска Медицина was also authorised to conduct such an analysis, that the trial court had not explained the discrepancy between the gross and net weight of the drugs found, and that the court had accepted that the packages containing the drugs had been submerged in acrylic paint, which contradicted the experts’ findings regarding the type of the paint involved (see paragraph 28 above). She also complained that she had not been allowed to consult the case file during the investigation, which had affected her ability effectively to prepare her defence. Furthermore, her defence rights had been unjustifiably restricted since she had not been given the opportunity to attend the examination of witnesses L.S. and N.V. before Podgorica District Court. In this respect she alleged that she had not been informed of the questions put to these witnesses by the trial court. The second applicant complained that there had been no evidence that he had concluded an agreement (with the first applicant) and, in particular, that he had known that he was transporting drugs. In the absence of any evidence confirming his intention to transport drugs, no criminal liability could be attributed to him. 45.     On 18 April 2008 the Skopje Court of Appeal held a public session at which, in presence of the applicants and their representatives, it dismissed the appeals and upheld the trial court’s judgment. As to the first applicant’s complaint concerning the requests she had made in the pre-trial proceedings to consult the case file, the court stated: “... On 11 May 2007 [the first applicant], in the presence of her lawyer, was informed about the charges against her ... (and) that she was not obliged to answer the questions and present her defence, but she stated that she would give a statement in any case after the available evidence had been presented to her ... On 16 May 2007 she gave a statement in the presence of her representative; the questioning continued on 18 May 2007. [On both the occasions] on which she gave a statement before the investigating judge, she had had the time and the facilities to prepare her defence and the possibility of communicating with her legal representative ... Under section 126 of the Criminal Proceedings Act, the accused is entitled to consult the case file and ... the evidence after being questioned. In the present case ... it is clear that the trial court did not violate the accused’s right of defence ... ... regarding the alleged violation of section 126 of the Criminal Proceedings Act ... it is evident that after the investigating judge had questioned [the first applicant] ... [she] gave a detailed statement which was duly noted in the court record and which she had read and signed ... ... The lawyer requested and was given access to the file before he objected to the indictment ... Moreover, the trial court established all the relevant facts at the trial ... ” 46.     As regards the expert evidence, the court established that all the expert reports admitted as evidence had confirmed that the substance found in the cans had been cocaine; in the statement of 15 November 2007, S.K. had confirmed that all 432 packages had been examined using so-called “speedy methods” and randomly-chosen packages had then been fully analysed; the quantity of the drugs had been established on the basis of ENFSI recommendations. The court further dismissed the applicants’ complaints about the alleged lack of independence of the experts, finding that the expert examination (no. 1399/07) had been ordered by the court, that the expert findings had not been called into doubt, and that they had been confirmed at the hearing by the experts, who had been warned about the consequences of false testimony. Lastly, the court held that a copy of expert report no. 1399/07 had been served on the applicants and they had been provided with a reasonable opportunity to challenge it. 47.     As regards the witness evidence produced by L.S. and N.V. in Montenegro, the court held that they had been heard in response to the request by the trial court made at the hearing dated 14 September 2007; the applicants and their representatives, who had attended that hearing, had not objected, nor had they sought to attend the questioning of these witnesses; the witnesses’ statements had been read out at the trial and the applicants had not objected to them. The court concluded that this evidence had therefore been accordingly lawfully obtained. 48.     As to the second applicant’s complaint that he had not known that he was transporting drugs, the court stated: “... such an allegation is contrary to the established facts based on admitted evidence concerning the actions taken by [the second applicant] and his criminal liability ... the court does not accept [his] allegations because on the basis of all evidence admitted at the trial, [the trial] court correctly established the relevant facts concerning the actions taken by [the second applicant] ... (these) allegations were assessed by [the trial] court ... (which) gave reasonable grounds why it did not give credence to them ... it was established beyond any doubt that drugs ‒ cocaine ‒ had been found in some paint-cans transported by the vehicle driven by [the second applicant].” 49.     The court further noted that: “... the large quantity of drugs, the way they were procured and transported, and the actions taken by the accused, suggest that the cocaine was transported for the purpose of selling it and not for any other purpose ... On the basis of the admitted evidence, the analysis and assessment thereof, (and) the accused’s behaviour before they reached agreement concerning the shipment, the fact that they communicated between themselves, during the shipment, that is to say before, during and after the crime ... it can be concluded that the accused knew and were aware of their actions, including the crime that they had committed ... In this connection, according to this court, there is no logical economic reason to import acrylic paint from Venezuela, given the fact that transport costs from Venezuela to the (final) destination ... would be higher than its value. It can be inferred from this that the accused knew that it was about the transportation of drugs and not of acrylic paint. Having also in mind the intensity of contacts between the accused, and the contacts with the witnesses L.S. and N.V. in Bar, ... together with the fact that [the first applicant] provided [the second applicant] with written documentation ... issued by her company M., stipulating that the cargo should be transported to the Republic of Greece to company S. ‒ which, on the basis of the available evidence, does not exist ‒ it becomes clear that [the applicants] knew and were aware of their unlawful actions and the crime committed ...” 3.     Proceedings before the Supreme Court 50.     The applicants lodged requests before the Supreme Court for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ). They reiterated the allegations of violation of their defence rights, in particular, concerning the expert evidence, examination of witnesses L.S. and N.V. and lack of reasoning. In this latter context the second applicant reiterated that there had been no evidence showing that he had known that he was transporting drugs hidden in hermetically closed cans. His telephone contacts with the first applicant and N.V. and the court’s conclusion regarding the economic rationale for importing paint from Venezuela were not conclusive given the fact that he was the driver whom the first applicant had engaged to transport the paint from Bar to Greece. The first applicant complained that it had not been established (or indicated in the operative part of the trial court’s judgment) that the drugs had been transported for the purpose of selling them. She also complained that her defence rights had been violated in the investigation. 51.     On 20 October 2009 the Supreme Court upheld the established facts and dismissed the applicants’ requests for the same reasons given by the Skopje Court of Appeal. In this connection it stated, inter alia, that: “On the basis of all admitted evidence, the intensity of telephone contacts between the accused, as well as contacts with witnesses L.S. and N.V., the accused’s behaviour before they reached agreement concerning the shipment, the intensive and multiple contacts between themselves during the shipment, when the crime had been committed and after it had been discovered, the trial court correctly concluded that the accused knew and were aware of their actions regarding the unlawful transport of drugs.” 52.     The Supreme Court further added: “... As to the allegations raised in the requests that the expression “for the purpose of selling ( заради продажба )” is missing from the operative part of the trial court’s judgment, the court considers that (this omission) does not render it defective, since that can be presumed ( произлегува ) in view of the actions undertaken by [the applicants] when committing the criminal offence ... From the description of [the applicants’] actions there is no doubt that drugs were transported for the purpose of selling and that such a large quantity of drugs, namely pure cocaine, cannot be for [the applicants’] personal use. Even more, it endangers the life and health of millions of people on the planet.” II.     RELEVANT DOMESTIC LAW A.     Criminal Proceedings Act of 2005 (Official Gazette. no. 15/2005, consolidated version) 53.     The relevant provisions of the Criminal Proceedings Act of 2005 read as follows: Section 69 “A lawyer has the right to consult the case file and other available evidence once the prosecution authorities have requested criminal proceedings and after certain investigative measures have been taken by an investigating judge.” Section 126 “The accused has the right to consult the case file and other available evidence after he is questioned.” Section 256 “(1) An expert examination may be requested by means of a written order from the body which is carrying out the procedure. The order shall specify the reasons for which the examination is required and the person appointed to perform it. (2) If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, shall as a rule be entrusted to that institution or body. The institution or body shall appoint one or more experts to carry out the expert examination ... (4) If there is no expert (on the list of permanent experts) for a particular type of examination, the court can appoint an expert outside the list.” Section 260 “(2) In the case of the expert analysis of a substance, the expert shall, if possible, be given part of that substance, and the remainder must be secured in sufficient quantity for any additional analyses.” Section 265 “An opinion must be obtained from other experts if the expert opinion which has already been delivered contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by further questioning of the experts who gave the opinion.” Section 351 “(1) If a fact is to be established on the basis of a personal observation by an individual, the latter shall be questioned at a hearing. Such examination cannot be replaced by the reading of a statement from that person ... (2) ... (the adjudicating panel) can decide to read out a transcript of the witness’s statement ... if: (i) the person concerned has died or is mentally ill, or cannot be found, or if his attendance cannot be secured or is considerably impaired due to age, illness or any other relevant reasons. ... 5. In the record of a hearing, the court shall state the reasons for reading out a transcript (of the witness’s statement) and whether the witness ... took an oath.” Section 418 § 1 (7) “(1) Final criminal proceedings may be reopened if: ... 7) the European Court of Human Rights has given a final judgment finding a violation of the human rights or freedoms (section 449 (6) of the Criminal Proceedings Act of 2010).” B.     Criminal Code of 1996 54.     The relevant provision of the Criminal Code of reads as follows: Unauthorised production and release for trade of narcotics, psychotropic substances and precursors Article 215 “(1) A person who without authorisation produces, processes, sells or offers for sale or who, for the purpose of selling, buys, keeps or transports, or mediates in the selling or buying of, or in some other way releases for trade, without authorisation, narcotics, psychotropic substances and precursors, shall be punished with imprisonment of between one and ten years. (2) If the crime from sub-paragraph 1 was committed by several persons, or if the perpetrator of this crime organised a network of resellers or mediators, the offender shall be punished with imprisonment of at least five years ...” THE LAW I.     JOINDER OF THE APPLICATIONS 55.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar