CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 juillet 2015

.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 } .s3F59B822 { font-family:Arial; font-weight:bold; 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 } .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 }   Communicated on 6 July 2015   FIRST SECTION Application no. 54609/11 Vedat MALIKI against the former Yugoslav Republic of Macedonia lodged on 19 August 2011 STATEMENT OF FACTS The applicant, Mr Vedat Maliki, is a Dutch national, who was born in 1967 and lives in Adleeuwarden, the Netherlands. He is represented before the Court by Mr P. Petrovski, a lawyer practising in Ohrid. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On an unspecified date in 1996, an investigation was opened against the applicant on suspicion that he had murdered his wife. The trial was held in the absence of the applicant and in the presence of his state-appointed representative. At the trial, the Ohrid Court of First Instance (“the trial court”) examined witnesses Z.V., B.C and A.M. and, with the consent of the applicant’s representative, read out the statements given during the investigation of witnesses A.Z., S.V. and K.T. On 7 July 2008 the trial court convicted the applicant in absentia for murder and sentenced him to fifteen years’ imprisonment. On the basis of A.M. and A.Z.’s statements, the trial court established that the applicant and his wife had arrived in Ohrid for holidays and that they had stayed in A.M.’s (the applicant’s brother) house. Z.V. had stated that he had seen, at the place of the murder, a parked red car, as was the applicant’s car, and a kneeling man. From the statements of B.C., S.V. and K.T. (all border police officers) the court established that after the murder the applicant had fled and, avoiding the border control and driving at excessive speed, had crossed the border crossing point with Albania. The court established that around 11   a.m. the applicant, driving a red car with Dutch registration plates, had crossed the border point without stopping at the raised barrier gate for trucks towards Albania. The applicant had shortly stopped the car in front of the duty-free shop because of some people who had been standing there. B.C. had run after the applicant’s car and had contacted the Albanian border officers, requesting them to send the car back to the Macedonian border. The Albanian officials had shown to him (B.C.) a Dutch passport in the applicant’s name. They had not allowed that the applicant returned, as that possibility would be considered by a joint commission. On the basis of B.C., S.V. and K.T.’s statements the trial court also established that shortly after the applicant had entered Albania, they had received a notice requesting them to detain the applicant had he come to the border crossing point. The trial court further relied on photographs taken in Albania on 13   August 1996 to establish that the applicant had a Dutch passport with visible blood traces on it. On 12 December 2008 the Court of Appeal confirmed that judgment, which became final. On 29 September 2009 the trial court granted the applicant’s request for reopening of the proceedings. At a hearing of 10 December 2009, witnesses Z.V., A.M. and B.C. were present, unlike witnesses S.V., K. T. and A.Z. who were not properly summoned. A hearing dated 10 February 2010 was attended by A.M. B.C., K.T., Z.V. and A.Z. were not present albeit being properly summoned. At that hearing, the applicant stated inter alia that he had left for the respondent State on 15 July 1996 together with his wife and that he had stayed in his brother’s house. On the critical day, he and his wife had been attacked by four persons while they had been in their car and he had fainted. He had recovered just before the border crossing point. An armed person had pointed him towards the crossing point. He had passed the Macedonian crossing point. There had been neither an officer nor a barrier gate. At the border crossing point, the Albanian police officers had taken him out of the car. He had been detained in Albania for a month and afterwards he had gone to the Netherlands. The trial court accepted the applicant’s proposal to hear both the witnesses proposed by him and the witnesses for the prosecution. On 7 April 2010 Z.V. stated that he fully remained on his statement given during the investigation of 12 August 1996, since he no longer remembered the details of the event, due to the lapse of time. B.C., K.T. and A.Z. were nor present since they were not properly summoned. Despite the applicant’s objection, the trial court admitted in evidence the statements of A.Z. (given during the investigation on 17 September 1996), B.C. (given during the investigation on 7 August 1996 and at the trial on 7 July 2008), S.V. and K.T. (both given during the investigation on 7 August 1996). On 3 June 2010, in his concluding remarks, the applicant’s representative submitted that the indictment was based on the statements of Z.V. and B.C. In respect of the latter, he argued that it could not serve to establish the potential guilt of the applicant, as the statement confirmed that the applicant had crossed the border crossing point on the critical day, but that fact did not mean that the applicant had committed the crime. The applicant had not disputed the fact that he had crossed the border, but had explained his reasons to do so. On 10 June 2010 the trial court delivered a judgment upholding the judgment of 7 July 2008 (останува во сила) . It stated inter alia that: “... In the court’s view, the evidence admitted during the reopened criminal proceedings did not change the facts established with the judgment... of 7 July 2008 and the judgment... of 12 December 2008 nor the elements of the crime established with (those judgments) ...” The trial court further dismissed the applicant’s defence as unsubstantiated. The applicant appealed that the reasoning of the judgment did not point to the evidence on the basis of which the trial court had found him guilty. He further requested that the court examine A.Z., B.C. and two new witnesses (who had not been heard before). On 12 October 2010 the Court of Appeal confirmed the judgment of 10   June 2010. The relevant part of the second-instance judgment reads as follows: “... On the basis of the admitted evidence, the trial court established that the [applicant] had not stopped his car at the border crossing point, but had passed by at excessive speed, which led witness [B.C.] – a police officer in the police station at the border crossing point, to run after him, but had not succeeded in his intention to approach him, since the [applicant] had already entered the border crossing point on the side of the Republic of Albania. On that occasion, the [applicant’s] passport had been shown to [B.C.] by an Albanian border officer. (B.C.) noticed that it had been a Dutch passport and that it had belonged to a person [with the applicant’s name] from Ohrid. In the context of this statement, S.V. and K.T., also employed in the [border] police station..., describe those circumstances in their own statements. ... Witness Z.V. confirmed the [applicant’s] presence and his car at the place of the incident. His statement was assessed by the trial court, which found it clear (confirming) that the [applicant], on the critical day, had been at the place at which, as established later, [the applicant] had inflicted several injuries to the late wife ...” In a request for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) before the Supreme Court, the applicant complained about lack of reasoning in the lower court’s judgments; that the statements of A.Z. and B.C. had been read out at the trial without his consent and that the aim of the reopened proceedings, notably to hear the witnesses in his presence, had not been attained. He further reiterated his request that the court examine A.Z., B.C. and two new witnesses. On 11 January 2011 the Supreme Court dismissed the request and confirmed the lower courts’ judgments. The relevant parts of the judgment read as follows: “...established facts are supported with admitted evidence, and especially with Z.V.’s statement, which confirms that at the critical time and place there was a red car parked, identical to the [applicant’s] car. The witness saw a kneeling man with the face towards the road and the on-site examination confirmed that the murderer was in that position when he undertook the incriminated actions ... ... The Supreme Court concludes that the complaint that the witnesses A.Z., B.C. ... were not heard is ill-founded, given that ... [their] statements were read out at the trial... in accordance with the provisions of the Criminal Proceedings Act, and were examined and assessed by the lower courts”. COMPLAINTS The applicant complains that A.Z. and B.C.’s statements were read out at the trial and that the witnesses heard during the investigation were not examined in his presence. He further alleges that the domestic courts did not provide sufficient reasons as to the evidence on the basis of which they convicted the applicant. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 of the Convention? In particular, did the absence of witnesses A.Z. and B.C. from the trial restrict his rights to a fair trial to an extent incompatible with this Article? 2.     Did the domestic courts provide sufficient reasoning for their judgments?