FIRST SECTION

CASE OF EFTIMOV v. THE FORMER YUGOSLAV REPUBLIC
OF MACEDONIA

(Application no. 59974/08)

JUDGMENT

STRASBOURG

2 July 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Eftimov v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Isabelle Berro, President,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Paulo Pinto de Albuquerque,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 9 June 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 59974/08) 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 a Macedonian national, Mr Epaminonda Eftimov (“the applicant”), on 5 December 2008.
2.  The applicant was represented by Ms P. Gičeva-Petkova, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
3.  The applicant alleged, in particular, that the criminal proceedings in which he was convicted had been unfair and lengthy.
4.  On 22 November 2012 these complaints were communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1950 and lives in Strumica, where he works as a surgeon at Strumica Hospital (“the hospital”).
Section 1.01	A.  Background of the case
6.  On 8 June 1997 the applicant treated Z.R.’s broken and injured arm. In the days that followed Z.R. complained of pain in the arm. The applicant, together with two other doctors and other hospital staff, applied various treatments and referred Z.R. to the children’s clinic in Skopje.
7.  On 11 June 1997 Z.R. was admitted to the children’s clinic in Skopje. It was discovered that he had a serious bacterial infection; consequently, his right hand was amputated on 19 June 1997.
Section 1.02	B.  Criminal proceedings against the applicant
8.  On 25 September 1997, an investigating judge of Strumica Court of First Instance (“the trial court”), on a request by the public prosecutor, opened an investigation against the applicant. On 19 April 2000 the public prosecutor lodged an indictment against the applicant for aggravated medical malpractice (тешки дела против здравјето на луѓето).
9.  On 10 July 2001 and 13 December 2004 the trial court acquitted the applicant (се ослободува од обвинение). Those judgments were quashed by the Štip Court of Appeal (“the appellate court”) on 30 January 2002 and 9 March 2005 respectively. The appellate court on both occasions observed, inter alia, that the degree of the applicant’s guilt and consequently, the proper qualification of the criminal offence, had not been correctly established in the proceedings before the trial court. It further ordered that the experts’ opinions be supplemented.
10.  On 13 September 2006 the trial court again acquitted the applicant, finding no grounds that a criminal offence had been intentionally committed.
11.  On 13 December 2006 the appellate court, of its own motion, at a session in the presence of both parties, re-qualified the charges and dismissed them (се одбива обвинението) as time-barred. It found that despite its instructions given in the earlier remittal orders, the degree of the applicant’s guilt was not correctly established in the proceedings before the trial court. The appellate court concluded that the applicant’s actions could have been negligent rather than intentional and therefore the criminal prosecution had become time-barred.
12.  On 21 March 2007 the Supreme Court accepted the public prosecutor’s request for the protection of legality, and remitted the case to the appellate court. The Supreme Court held that the appellate court, having re-qualified the charges, established the facts anew without holding a hearing (претрес).
13.  On 8 October 2007 the appellate court held a hearing in the presence of both parties and again dismissed the charges as time-barred.
14.  The applicant and the public prosecutor both lodged appeals before the Supreme Court. The applicant also submitted observations in reply to the public prosecutor’s appeal.
15.  On 26 March 2008 the Supreme Court held a session (седница) in the presence of the public prosecutor. After hearing the public prosecutor’s oral pleadings, in which she sought a dismissal of the applicant’s appeal and for the prosecutor’s appeal to be allowed, relying as well on the parties’ written submissions, the Supreme Court dismissed the applicant’s appeal, allowed the public prosecutor’s appeal, and reversed the appellate court’s judgment. The Supreme Court accepted the trial court’s findings of facts and law, namely that the imputed offence should be qualified as intentional aggravated medical malpractice. The Supreme Court concluded that the applicant was guilty, and sentenced him to one year’s imprisonment. The applicant’s representative was served with the Supreme Court’s judgment on 19 June 2008, and the applicant himself on 11 July 2008.
16.  On 1 April 2009 the applicant started serving the prison term. On 6 October 2009 the trial court replaced the prison sentence with a conditional discharge. This decision became final on 14 October 2009.
Article II.	II.  RELEVANT DOMESTIC LAW
Section 2.01	A.  Criminal Proceedings Act (Official Gazette, no. 15/97)
17.  Under section 361 (1) and (3) of the 1997 Criminal Proceedings Act (“the Act”) (Закон за кривична постапка), the chair of the adjudicating panel of the appellate court appoints a judge rapporteur. The latter, in cases involving offences automatically subject to prosecution by the State, forwards the case file to the public prosecutor, who examines and returns it without delay. After receiving the case file, the chair sets a date for the session (седница) of the adjudicating panel. The public prosecutor is notified thereof.
18.  Section 362 (1) and (3) of the Act provides for notification of the date of the appellate court’s session to be given, inter alia, to the defendant and his lawyer, if they so request. Such notification may be given even if there is no such request, if their attendance would contribute to establishing the facts. The second-instance court may seek additional explanations from the parties attending the session. The parties may propose that some documents from the case file are read or that they further develop their arguments submitted earlier.
19.  Section 364 (1) and (2) of the Act provides that the second-instance court will hold a hearing (претрес) only if new evidence needs to be produced or evidence re-produced, or if the case does not need to be remitted for fresh consideration. The defendant and his or her counsel, the public prosecutor, the victim and any witnesses or experts to be heard are summoned to attend the hearing before the second-instance court.
20.  Section 381 (1) of the Act foresees special circumstances under which a second-instance judgment may be appealed against before a third-instance court, namely the Supreme Court. The appellate court’s judgment may be appealed against, inter alia, when the second-instance court has held a hearing and based its decision on the facts as established anew. Section 381 (2) further foresees that statutory provisions regarding the appellate court’s session apply likewise to proceedings before the Supreme Court. The Supreme Court however could not hold a hearing.
21.  Under section 392 § 1 (7) of the Act, a case may be reopened if the European Court of Human Rights has given a final judgment finding a violation of the human rights or freedoms. The same provision is provided for in section 449 (6) of the new Criminal Proceedings Act, which entered into force in 2010 and became applicable after 1 December 2013.
Section 2.02	B.  Criminal Code (Official Gazette, 37/96)
22.  Section 217 (1) of the Criminal Code (“the Code”) sets out the criminal offence of aggravated medical malpractice and prescribes a prison sentence of between one and ten years. According to section 217 (3), in cases of negligence the criminal offence shall be subject to a prison sentence of between three months and three years.
THE LAW
Article III.	I.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
23.  The applicant complained that the criminal charges against him had not been determined within a reasonable time.
24.  He further complained that he had not had a fair hearing in the proceedings before the Supreme Court since, unlike the public prosecutor, he had not attended the Supreme Court’s session following which he was convicted and sentenced to a term of imprisonment. He relied on Article 6 of the Convention, which in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal ...”
Section 3.01	A.  Admissibility
25. The Government did not raise any objection as regards the admissibility of these complaints.
26.  The Court notes that the complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  Complaint about the length of the proceedings
(i)	(a)  The parties’ submissions
27.  The applicant argued that the criminal proceedings were too long.
28.  The Government contested the applicant’s position. In their view, the length of the proceedings was not unreasonable, given the number of judgments delivered and the court levels that had examined the case. They also submitted that three hearings were adjourned due to urgent absence of the medical experts.
(ii)	(b)  The Court’s assessment
29.  The Court notes that the proceedings began on 25 September 1997 when the investigation against the applicant was opened (see Nankov v. the former Yugoslav Republic of Macedonia, no. 26541/02, § 42, 29 November 2007). They ended on 19 June 2008 when the Supreme Court’s judgment was served on the applicant’s representative (see paragraph 15 above). The proceedings therefore lasted ten years and nine months at three levels of jurisdiction.
30.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
31.  The Court considers that some complexity arose from the need to request expert opinions for the purpose of determination of the degree of the applicant’s guilt. The Court does not consider that this can alone justify the overall length of the proceedings of almost eleven years (see Nankov § 46, cited above). Moreover, the expert opinions were provided in the context of judicial proceedings, supervised by a judge, who remained responsible for the preparation and the speedy conduct of the trial.
32.  The Court further observes that it has not been presented with any evidence that any procedural delays are attributable to the applicant.
33.  As for the conduct of authorities, the Court notes that the investigation lasted for three years (see paragraph 8 above). The case was then remitted on three occasions (see paragraphs 9 and 12 above). In this connection the Court reiterates that repeated re-examination of a case following remittal may in itself disclose a serious deficiency in a given State’s judicial system (see Gjozev v. the former Yugoslav Republic of Macedonia, no. 14260/03, § 51, 19 June 2008 and Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005).
34.  In such circumstances, the Court concludes that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Nasteska v. the former Yugoslav Republic of Macedonia, no. 23152/05, § 36, 27 May 2010).
35.  There has accordingly been a breach of Article 6 § 1 of the Convention.
(b)	2.  The applicant’s absence from the session of the Supreme Court held on 26 March 2008
(i)	(a)  The parties’ submissions
36.  The applicant argued that, unlike the public prosecutor, he had had no opportunity to attend the Supreme Court’s session of 26 March 2008, although he should undoubtedly have been there, given that a matter of fact, namely his alleged intention (degree of guilt) to commit the criminal offence, was under consideration. Since the law (see paragraph 20 above) did not provide for a hearing before the Supreme Court, this court could have either confirmed the trial court’s acquittal or remitted the case for fresh consideration before the appellate court.
37.  The Government stated that at the session of 26 March 2008 the Supreme Court had neither established new facts nor considered new evidence, but had decided the case on the basis of the available material. The Government also argued that neither the applicant nor his defence lawyer had requested to be notified of any Supreme Court session. The applicant had been able to argue his position in his appeal and in his observations in reply to the public prosecutor’s appeal. The Supreme Court took all his submissions into account.
(ii)	(b)  The Court’s assessment
38.  The Court reiterates that the principle of equality of arms - one of the elements of the broader concept of a fair trial - requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. This implies, in principle, the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations submitted, even by an independent member of the national legal service, with a view to influencing the court’s decision (see Kress v. France [GC], no. 39594/98, §§ 72 and 74, ECHR 2001‑VI).
39.  Furthermore, a State which has set up courts of appeal or cassation is required to ensure that individuals amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11). In this context, importance is to be attached to, inter alia, the appearance of fair administration of justice and the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, 30 October 1991, § 24 in fine, Series A no. 214‑B).
40.  The Court notes that the Supreme Court had jurisdiction to examine the case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence (see, mutatis mutandis, Ivanovski v. the former Yugoslav Republic of Macedonia (dec.), no. 21261/02, 29 September 2005, which concerned the jurisdiction of the appellate court). In this context the Court notes that the Supreme Court only exercised its statutory powers when it relied on and upheld the facts established by the trial court. It however decided the parties’ appeals at a session held in the presence of the public prosecutor only. The date of this session was communicated to the public prosecutor under section 361 (1) of the Act (see paragraph 17 above). The public prosecutor attended the session and submitted an oral statement requesting that the applicant’s appeal be dismissed and that the prosecutor’s appeal be accepted. The Supreme Court addressed this statement in its decision. The applicant was not present, and thus had no opportunity to reply to those representations. In this connection the Court notes that the applicant did not exercise his right under section 362 (1) of the Act (see, a contrario, Nasteska § 17, cited above). As a result, he was not informed of the Supreme Court’s session. However, that court did not request his attendance although it had such jurisdiction under sections 362 (1) and 381(2) of the Act (see paragraphs 18 and 20 above), and although a factual issue, namely, the degree of the applicant’s intention, was being considered by it. In the Court’s view, the applicant’s failure to request notification should not be held against him, given the statutory inequality that the Act created by providing only the public prosecutor with a right to be apprised of the appellate court’s session automatically, while restricting that right for the accused to a specific request by him or her to attend. The Government did not provide any reasonable explanation for this procedural inequality flowing from the Act. The Court sees no reason why such preferential treatment is offered to the public prosecutor, which acts as a party to the proceedings and is accordingly the applicant’s adversary (see Atanasov v. the former Yugoslav Republic of Macedonia, no. 22745/06, § 32, 17 February 2011). Moreover, given that the factual issue of the applicant’s intention was under close scrutiny by the Supreme Court, there was an even stronger need to summon the applicant and give him the opportunity to be present at that court’s session on an equal footing with the public prosecutor (see, mutatis mutandis, Zahirović v. Croatia, no. 58590/11, §§ 62-63, 25 April 2013).
41.  The foregoing considerations are sufficient to enable the Court to conclude that the public prosecutor’s presence at the Supreme Court’s session of 26 March 2008 afforded her, if only to outward appearances, an additional opportunity to bolster her opinion, without fear of contradiction by the applicant (see Borgers, § 28, cited above, and Lobo Machado v. Portugal, 20 February 1996, § 32, Reports of Judgments and Decisions 1996-I).
42.  In view of the above, the Court considers that there has been a violation of Article 6 § 1 of the Convention on account of the lack of equality of arms in the proceedings before the Supreme Court.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
43.  Lastly, the applicant complained that the judges were biased and that his defence rights had been violated in view of the lengthy investigation. He further referred to the re-qualification of the charges during the proceedings, and the public prosecutor’s specification of the degree of his guilt in the last, closing statement before the appellate court. Under Articles 3 and 8 of the Convention he complained about the effect the criminal proceedings had on his life. Finally, he cited Article 13 of the Convention.
44.  Having regard to all the material in its possession, and in so far as these complaints are within its competence, the Court finds that they do not disclose any appearance of a violation of the Convention as alleged by the applicant. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 5.01	A.  Damage
46.  The applicant claimed 62,982 euros (EUR) in respect of pecuniary damage. This figure concerned loss of income related to his dismissal from work as of 1 April 2009 when he started serving the prison sentence until his re-employment in the hospital in 2011, and damages that the hospital claimed from him in respect of the compensation that it had paid to Z.R. The applicant also claimed EUR 20,000 for non-pecuniary damage suffered in relation to the impugned criminal proceedings.
47.  The Government contested the applicant’s claim as excessive and unrelated to the impugned criminal proceedings. They invited the Court to consider that the eventual finding of a violation would constitute in itself sufficient compensation for any damage in the present case.
48.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that some non-pecuniary damage must have been suffered by the applicant, and awards him EUR 3,900 under this head, plus any tax that may be chargeable.
Section 5.02	B.  Costs and expenses
49.  The applicant also claimed EUR 3,746 for costs and expenses incurred before the Court for 107 hours of work for the preparation of the application and representation before the Court. The applicant did not claim any costs in relation to the domestic proceedings.
50.  The Government contested this calculation as excessive.
51.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‑IV). Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before it, plus any tax that may be chargeable to him.
Section 5.03	C.  Default interest
52.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints about the length of the criminal proceedings and the fairness of the proceedings before the Supreme Court admissible, and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of equality of arms in the proceedings before the Supreme Court;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 July 2015, pursuant to Rule  77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Isabelle Berro
	Deputy Registrar	President