CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 novembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 26 November 2014   FIRST SECTION Application no. 36309/10 Kiril KOČEVSKI against the former Yugoslav Republic of Macedonia lodged on 23 June 2010 STATEMENT OF FACTS The applicant, Mr Kiril Kočevski, is a Macedonian national, who was born in 1947 and lives in Skopje. He is represented before the Court by Mr   Ž. Hadži-Zafirov, a lawyer practising in Skopje. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The case concerns criminal proceedings against the applicant (who, at the time of the events described below, was acting manager of the formerly socially owned company S.) for abuse of office ( злоупотреба на службената положба и овластување ), namely that he had ordered the three other accused to acknowledge false claims of the company E. against S. and transfer those claims to the company B., which was owned by the applicant. The claim was later transformed into 98% of S.’s capital, by which B. (subsequently renamed to company S.1) became S.’s main owner. 1.     The criminal proceedings On 12 April 2007 a hearing was to be held before the Skopje Court of First Instance (“the trial court”). On the same day, the applicant, who was detained, requested from the trial court to be psychologically examined. He stated that by a letter of 1 March 2007 the prison authorities had requested the trial court to commission such an examination. The trial court dismissed these requests, given that the letter had not provided any details, but had merely stated that it concerned a psychological examination. On that day, two witnesses were examined outside the trial ( вон претрес ). Тhe applicant questioned one of those witnesses. On 30 April 2007 the trial court convicted the applicant and sentenced him to six years’ imprisonment. The applicant appealed, complaining inter alia that the trial court should have obtained an expert opinion on the applicant’s psychological and health condition, given that it had influenced his ability to follow the trial. He further complained that the trial court had not been impartial, given that the partner of the judge who presided over its panel (Judge V.M.) had a debt towards S. The applicant had found out about that fact after the first-instance judgment had been delivered. On 11 May 2007 the details concerning V.M.’s partner’s relations with S. had been published in a weekly newspaper. At the public session held on 7 November 2007 the Skopje Court of Appeal (“the second-instance court”) dismissed the applicant’s appeals. It found that there had been no direct link between the pecuniary interests of V.M’s partner and the impugned criminal proceedings, which might have raised doubts in V.M.’s impartiality. In respect of the complaint concerning the request for psychological examination, it found that the applicant had been able to follow the trial and examine the witnesses. The judgment stated that, at the public session, the applicant had notified the second-instance court of his deteriorated health condition. In his requests lodged with the Supreme Court for extraordinary review of a final judgment ( барање за вонредно преиспитување на правосилна пресуда ), the applicant reiterated his complaints concerning the alleged lack of impartiality of V.M. and concerning his request for a psychological examination. On 23 December 2009 the Supreme Court dismissed the applicant’s requests and upheld the lower courts’ judgments. It found that V.M.’s partner had never lodged a compensation claim in the criminal proceedings in question and thus V.M.’s impartiality could not be doubted. It further endorsed the lower courts’ findings in respect of the other complaints. 2.     Reports concerning the applicant’s health On 21 June 2007 a psychiatrist (V.V.) examined the applicant in the detention department of the Skopje Clinical Centre. According to a handwritten note issued by V.V. on 25 June 2007, it was necessary that the applicant be transferred to the Psychiatric Clinic. In view of his psychological state, he was not able to attend the trial, nor could his statements be considered valid, until a definitive diagnosis would be established. On 5 July 2007 a psychologist drew up a report on the applicant’s psychological state, upon his own request. The report stated, inter alia , that the applicant’s thinking process was slow and the applicant was unable to respond to complex tasks which required an increased level of abstraction and generalization. A deficit in memory was noted. The conclusion of the report reads as follows: “The results of the psychological examination confirm an affective and thought distortion of a depressive and paranoid character, and a psycho-organicity (психоорганицитет) which deeply disrupts the mental state of the examinee within a deep psychological deviation. The examinee lacks insight and criticality for the condition in which he is placed following the indictment.” There are no indications in the case file that these documents were communicated to the second-instance and the Supreme Court while the criminal proceedings were pending. COMPLAINTS The applicant complains under Article 6 of the Convention about lack of impartiality of Judge V.M., as well as about violation of his right to participate effectively in the proceedings. QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the court which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention? In addition, in view of his health condition, could the applicant participate effectively in the trial?