by Trajko DIMITRIEV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 10 March 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 May 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Trajco Dimitriev, is a Macedonian national who was born in 1956 and lives in Strumica. He was represented before the Court by Mr T. Torov, a lawyer practising in Stip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 August 2001 an incident took place between the applicant and Mr G. as a result of which each brought criminal charges of causing bodily injury against the other.
1. Misdemeanour proceedings against Mr G.
On 29 August 2001 Mr C.P., a police officer dealing with the case, drew up an official report (службена белешка) concerning the incident. The report stated that on 28 August 2001 Mr G. handed over to Mr J.B., a doorman at the County Council (“the doorman”), official documents belonging to the applicant which he had obtained from third persons.
According to the application for misdemeanour proceedings brought against Mr G., the latter had punched the applicant, causing visible injuries (gashed eyebrow and an injured nose).
On 12 July 2002 the Strumica Court of First Instance (“the trial court”) convicted Mr G. of disorder and issued a reprimand. This decision became final on 12 October 2002.
2. Criminal proceedings for bodily injury and defamation
On an unspecified date in 2001, the applicant, who was assisted by counsel, brought criminal charges against Mr G. of causing bodily injury. He complained that on 29 August 2001 Mr G. had hit him twice on the right side of his head. He had fallen against a table and temporarily lost consciousness. He further provided a medical certificate dated 29 August 2001. He requested the court to examine him, Mr G. and the doorman as an eyewitness.
Mr G. also submitted a private criminal complaint against the applicant on two grounds: bodily injury and defamation. In this latter context, Mrs L.G., Mr G.'s wife, stated that the applicant had called on three occasions on 28 August 2001 allegedly saying that:
“... your boyfriend has committed such a crime that only God can help him ... he is in police custody and you should light candles for him...”
He further claimed that on 29 August 2001, the applicant had assaulted him and punched him on the left cheek, that he hit him several times in the chest and had grabbed him round the neck. He produced a medical certificate and requested that two witnesses, the doorman and Mrs L.G., be examined.
During the proceedings the applicant requested the trial court to examine Mr C.P., Ms Z.N., a nurse in the Strumica Health Centre (“the Centre”); Mr T.T., a police officer; Mr G.P., the head of the Centre, and also to examine the case file in the misdemeanour proceedings.
On 28 October 2002 the trial court convicted both the applicant and Mr G. of inflicting minor bodily injuries and imposed a conditional sentence of a fine. It held that on 29 August 2001 the applicant had attacked Mr G. who, in response, had punched the applicant in the head. The court heard evidence from Mr T.S., a doctor who had issued the medical certificate on Mr G., Mrs E.P., an expert and the doorman. It rejected the applicant's challenge to the validity of the medical certificate issued on Mr G. and the entry in the Centre's register about the latter's examination. It went further, concluding that:
“... the court examined other witnesses, but not eyewitnesses to the event. Examination of other witnesses about the injuries sustained was also requested, but these requests were refused as the type and qualification of the injuries were determined on the basis of the medical certificates issued by the experts ...”
As to the criminal charges for defamation, the court examined Mrs L.G., who confirmed the applicant's words.
On 4 November 2002 the applicant appealed that, inter alia, the trial court had refused, without providing any reason, to admit important evidence proposed by him. In this connection, he referred to a statement given on 24 October 2002 by Ms L.M., a doctor working in the Centre, related to the procedure for entering data in the Centre's register. He further complained that the trial court had refused to examine Mr C.P. and Mr G.P. and the case file in the misdemeanour proceedings which contained no information that Mr G. had sustained any injury. He further complained that the evidence proposed on his behalf was intended to support his suspicion that Mr G. had not sustained any injury and not as the trial court found, to challenge the type and qualification of the alleged injuries.
On 12 November 2002 the applicant submitted a supplement to his appeal requesting, inter alia, the Court of Appeal to summon him in order to establish the truth.
At a hearing held in private on 28 February 2003, the Stip Court of Appeal ruled partly in favour of the applicant and overturned the trial court's decision in respect of the trial costs only.
3. Criminal proceedings for forgery against Mr T.S.
Following a criminal complaint by the applicant, on 9 February 2005 the trial court convicted Mr T.S. of forgery of the medical certificate issued on Mr G. and gave him a suspended sentence. In support of Mr T.S.'s conviction, the court admitted in evidence the statements of Ms Z.N., Mr G.P. and Ms L.M.
On 5 May 2005 the Štip Court of Appeal upheld the applicant's appeal and sentenced Mr T.S. to two months' imprisonment.
4. Reopening of the proceedings
On 17 December 2007 the trial court allowed the applicant's application for reopening of the proceedings on account of Mr T.S.'s conviction.
On 5 September 2008 the trial court acquitted the applicant in respect of his conviction for causing bodily injury. It found that his conviction had been based, to a decisive extent, on the medical certificate that Mr T.S. issued on Mr G., which was established to have been forged. The court also declared invalid the decision of 28 October 2002, in respect of the applicant's conviction for causing bodily injury. On 25 November 2008 the Stip Court of Appeal confirmed this decision and overturned it in respect of the trial costs.
B. Relevant domestic law
Under section 362 of the Criminal Proceedings Act, a defendant and his or her representative would be notified about a session of the Appeal Court's panel if they requested, within the time-limit for an appeal, to be informed about the session or that a hearing was to be held before that court.
Section 364 provides for a hearing before the Court of Appeal to be held only if new evidence needs to be admitted or re-admitted and there are no grounds that the case is remitted for reconsideration.
Section 392 § 1 (1) provides that criminal proceedings may be reopened in favour of the convicted if it is established that a judgment was based on a forged document or a false testimony of a witness, expert or an interpreter.
Under section 526 § 1, a person who has been convicted of a criminal offence by a final decision and is subsequently, on the basis of an extraordinary remedy, acquitted or charges against him or her are dismissed, is entitled to claim compensation for wrongful conviction.
The applicant complained under Article 6 § § 1 and 3 (d) of the Convention that he had been deprived of the right to a fair trial since the domestic courts, without any reasoning, had prevented him from obtaining the attendance and examination of witnesses on his behalf under the same conditions as for the witnesses against him. He also complained that his conviction for defamation had been based solely on Ms L.G.'s testimony and that the Court of Appeal had decided in private despite his request for an oral hearing.
The applicant alleged unfairness of the proceedings, relying on Article 6 of the Convention which, in so far as relevant, reads as follows:
1. “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”
1. Complaints concerning the applicant's conviction for causing bodily injuries
a) The parties' submissions
In the observations dated September 2007, the Government submitted that the applicant had failed to request, in a timely manner, the reopening of the proceedings, which might have proved effective in the particular circumstances of the case.
The applicant contested the effectiveness of this request.
b) The Court's assessment
The Court does not consider it necessary to examine the Government's objection for non-exhaustion of domestic remedies, since the application, in so far as it relates to the applicant's conviction for causing bodily injury can now be considered to have been “resolved” within the meaning of Article 37 § 1 (b) (see Sisojeva and Others v. Latvia [GC], no. 60654/00, § 96, ECHR 2007).
In this connection, the Court reiterates that, under Article 37 § 1 (b), it may “... at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...” In order to ascertain whether that provision applies to the present case, the Court must answer two questions: first, whether the circumstances complained of directly by the applicant still obtain; and, second, whether the effects of a possible violation of the Convention have been redressed (see ibid.).
With this in mind, the Court notes that the applicant successfully applied for the reopening of the proceedings on the basis of Mr T.S.'s conviction for forgery of the medical certificate issued on Mr G. It was that certificate which, to a decisive extent, secured the applicant's conviction of inflicting bodily injuries. In the reopened proceedings, the applicant was acquitted and the relevant part of the court's decision of 28 October 2002 was declared invalid.
The Court considers that the matter giving rise to the applicant's complaints related to his conviction for causing bodily injury can now be considered to have been “resolved” within the meaning of Article 37 § 1 (b). In addition, there are no particular reasons relating to respect for human rights as defined in the Convention which would require the Court to continue its examination under Article 37 § 1 in fine.
Furthermore, the applicant remains entitled, on the basis of his acquittal of 5 September 2008, to claim damages in connection with the wrongful conviction under section 526 of the Criminal Proceedings Act, in order to obtain redress.
Accordingly, the application should be struck out of the Court's list of cases in so far as it relates to the complaints regarding the applicant's conviction for causing bodily injury.
2. The remaining complaints
The applicant also complained under Article 6 of the Convention that he had been convicted of defamation solely on the basis of Ms L.G.'s testimony.
The Court observes that the applicant, who was represented by a counsel, did not raise this complaint in his appeal submitted to the Stip Court of Appeal.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in so far as it relates to the applicant's conviction of causing bodily injuries,
Declares inadmissible the remainder of the application.
Claudia Westerdiek Rait Maruste