AS TO THE ADMISSIBILITY OF
by Memail MAMUDOVSKI
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 21 September 2004,
Having deliberated, decides as follows:
The applicant, Mr Mefail Mamudovski, is a Macedonian national who was born in 1973 and lives in the village of Podgorci, in the former Yugoslav Republic of Macedonia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 October 2004 the Kumanovo Court of First Instance (“the trial court”) found the applicant, who was put on trial in absentia, Mr D.M. and Mr M.E. guilty of drug trafficking and sentenced them to terms of imprisonment of five to seven years. The applicant received the longest sentence. The court found that they had acted in concert, namely that Mr D.M. and Mr M.E. had loaded over 20 kg of heroin on to a truck in the former Yugoslav Republic of Macedonia in order to offer it for sale in Italy, where the applicant had temporary residence. The applicant's conviction was based on Mr M.E.'s statements given in the pre-trial proceedings and at the trial concerning his role in the crime. Mr D.M. denied knowing the applicant.
The applicant, who was legally represented, successfully requested a reopening of the proceedings after his return to the former Yugoslav Republic of Macedonia.
On 23 March 2006 the trial court set aside its decision of 4 October 2004, convicted the applicant of drug trafficking and imposed the same sentence. It examined the applicant and Mr D.M. It refused his request to hear evidence from Mr M.E. and to confront the latter with Mr D.M., however.
The applicant appealed on the grounds, inter alia, that the trial court had refused his request for examination of Mr M.E., even though his conviction had been based solely on the latter's testimony.
At a public hearing held on 16 June 2006, the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. It found that Mr M.E.'s testimony had been clear and coherent, and that he had described in detail the sequence of events and the convicts' roles in the crime.
The applicant's request for a reopening of the proceedings was finally dismissed by the Skopje Court of Appeal on 17 June 2008.
B. Relevant domestic law and practice
1. Criminal Proceedings Act (“the Act”)
Under section 403 of the Act a public prosecutor “may” (може) request the protection of legality (барање за заштита на законитоста) against a final court decision.
According to section 406 § 1 of the Act, the court has to confine itself to reviewing the alleged violations complained of by the complainant.
Section 408 § 1 provides that if the request is well founded, the court is either to overturn the final decision or to quash, entirely or in part, the decisions of the trial court and the appellate court, or the appellate court's decision alone, and refer the case back for a retrial or to the appellate court, or establish the violation itself.
Section 409 provides that if there is considerable doubt as to the relevant facts established in the judgment against which the request was lodged and accordingly it is not possible to review it on the merits, the court will quash it and order a retrial before the same or another trial court.
Section 411 §§ 1 and 2 provides that a person convicted by a final judgment and sentenced to imprisonment may request extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). The extraordinary review request may be submitted within thirty days of the date on which the convicted person was served with the judgment.
Under section 412, the Supreme Court decides extraordinary review requests.
Under section 413 § 1 (3), an extraordinary review request may be submitted in a case of a violation of the defence rights of the convicted person by the trial court or an infringement of the procedural rules in the appeal proceedings, if relevant to the adoption of a just decision.
Section 414 §§ 1 and 5 provides that an extraordinary review request may be lodged by the convicted person or his counsel. The trial court or the court which decides upon the extraordinary review request may postpone or stay the execution of the final court decision.
Section 415 stipulates, inter alia, that sections 406, 408 § 1 and 409 of the Act apply to extraordinary review requests.
2. Supreme Court's jurisprudence
a) The Supreme Court accepted convicts' extraordinary review requests and ordered retrial on the ground that law had been applied to their significant disadvantage. The court requested reassessment of evidence and reconsideration of the facts (Kvp.br.52/1998 of 28 April 1998 and Kvp.br.143/1999 of 5 October 1999).
b) A person was convicted, at first and second instance, for having undertaken three activities which provoked religious and ethnic hatred. The Supreme Court ruled partly in favour of the convict and excluded two of the counts for which he was convicted of (Kvp.br. 191/2005 of 13 September 2005).
The applicant complained under Articles 5 and 6 of the Convention that his defence rights had been infringed, since the domestic courts had refused his request for examination of witnesses on his behalf, in particular Mr M.E., whose testimony had been decisive for his conviction.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Jasar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 19 January and 11 April 2006, and the references cited therein).
The only remedies which Article 35 of the Convention requires to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 IV).
Having regard to the relevant provisions of the Act, the Court considers that the extraordinary review request is to be regarded, under certain circumstances, as an effective remedy within the meaning of Article 35 of the Convention. There is an established domestic jurisprudence which confirms its effectiveness (see “Relevant domestic law and practice” above). It finds that where a person has been convicted by a final judgment and has been sentenced to imprisonment, an extraordinary review request provides an aggrieved individual with the possibility of putting to the Supreme Court complaints that defence rights were violated or that procedural rules were not respected in appeal proceedings. Further, on an extraordinary review, the Supreme Court is capable of providing redress as it is required to consider the complaints and it can quash, in part or whole, the lower courts' decision, it can refer issues back, and it can decide the case itself. The Court considers the extraordinary review request as a part of well established procedural safeguards. According to section 411 and 413 of the Act, the request is a normal procedural appeal to the Supreme Court with quite ordinary consequences and with a limited scope. This remedy is therefore to be distinguished from the request for the protection of legality specified in section 403 of the Act, which falls within the discretionary powers of the public prosecutor (see, mutatis mutandis, Dimitrovska v. the former Yugoslav Republic of Macedonia (dec.), no. 21466/03, 30 September 2008).
In the present case, the Court notes that the applicant was convicted and sentenced to a term of imprisonment. An extraordinary review therefore lay against the final judgment of 16 June 2006 confirming the applicant's conviction. His complaints under Article 6 of the Convention are, in substance, the same as complaints which could have been raised under section 413 § 1 (3) of the Act.
It follows that, in not availing himself of the extraordinary review request, the applicant has failed to exhaust domestic remedies, and that the application must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Rait Maruste