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Cite as: [2010] ECHR 472
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
36117/04
by Dimče JOVANOV
against the former Yugoslav
Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 9 March 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
and Claudia
Westerdiek, Section
Registrar,
Having regard to the above application lodged on 27 September 2004,
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 FACTS
The applicant, Mr Dimče Jovanov, is a Macedonian national who was born in 1976 and lives in Krupishte. He was represented before the Court by Mr P. Dokuzov, a lawyer practising in Štip. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Pre-trial proceedings against the applicant
On 17 June 2003 the public prosecutor requested an investigating judge of the Štip Court of First Instance (“the trial court”) to open investigations against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant on account of having been in possession of weapons and explosives (недозволено држење на оружје и распрскувачки материјали). He also requested that the accused be examined and remanded in custody.
On the same date, the investigating judge examined the accused.
The applicant stated, inter alia:
“... Yesterday, while I was walking through the city, I met with R. [the first name of Mr Dz., as established in the course of the domestic proceedings, later referred to as Mr R.Dz.], an acquaintance of mine, last name and address I don’t know, who told me that he needed explosives to kill fish. I told him that I knew a person, Mr A.P., who knew a third person who could provide explosives. R. suggested me that that person could bring the explosives firstly to the V.P. petrol station and then in the village of Tri Češmi ... I hired a taxi and went to meet Mr A.P. ... I told him about the potential buyer, without specifying the quantity and price of the required explosives. It was something for him to agree upon with R. Mr A.P. accepted ... I called Mr A.A. to ask him, if possible, to come in his car ... I stayed in the village of D. Balvan in order to meet with R. whom I met at the petrol station. We stayed there for half an hour, until Mr A.P. and Mr A.A. arrived. We had a coffee ... when Mr A.A. and Mr A.P. arrived, I got into the car and continued towards Tri Češmi. There, we were stopped by police. They also stopped the car, which R. had got into at the petrol station, but they let it go on straight away. They searched our car and found the explosives ...”
Mr A.P. stated, inter alia:
“... We (the applicant and I) are former schoolmates ... we often see each other ... yesterday at around 1 p.m. [the applicant] came to my house in a taxi and told me that he had found a customer for the explosives ... He called Mr A.A. from my phone asking him to come in his car ... [The applicant] did not want to come with us to Zletovo village, but said that he would wait at the V.P. petrol station where he would meet the buyers ... When we arrived at the petrol station, [the applicant] joined us and told us to follow a car ... [The applicant] promised me 100 German marks (DEM) as a reward for my part ...”
Mr A.A. stated, inter alia:
“... At around 10 or 11 am. on 16 June 2003, [the applicant] came into my shop asking for a favour, namely to transfer him to a place, without specifying where and for what purpose. He left and at around 2 pm. he called me again. I told him to call back in fifteen minutes... [The applicant] called me on my mobile phone ... it was around 2.20 p.m. when [the applicant] called me again. I took my car and went in the village of G. Balvan. There, [the applicant] and .... Mr A. waited for me. While he was driving [the applicant] said that something had come up, that I would have to leave him in the village of D. Balvan, but that I would have to take Mr A. on to Zletovo and that he would pay me for the petrol... When we arrived at the petrol station, [the applicant] was waiting for us in the restaurant alone. He joined us in the car. I immediately started to argue with him, asking why he had not told me about the matter. With a smile on his face he told me: ‘don’t worry mate, I’m with you. I just want to ask for one more favour: to take us with the explosives to Tri Češmi. Mr A. and I will go on and you’ll go back and we’ll pay for the petrol...”
On 26 June 2003 the public prosecutor filed an indictment with the trial court against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant. The applicant was charged with acting as an accomplice in concert with Mr A.P. and Mr A.A. and with obtaining explosives with the intention of selling them to an unknown buyer.
According to depositions taken on 23 June 2003 in the pre-trial proceedings, the applicant, who was assisted by counsel, confirmed his statement of 17 June 2003.
2. The applicant’s conviction
At a hearing of 18 July 2003, the trial court examined all the co-accused, including the applicant.
Mr A.P. stated, inter alia:
“... [the applicant] engaged Mr A.A. [The applicant] knew that Mr A.A. and I would buy explosives from Zletovo. [The applicant] knew who the buyers were, but I did not ...”
The applicant confirmed his statements given in the pre-trial proceedings. Asked by his representative, he stated that he would not have taken part in any of the activities had it not been for R., who had incited him to find explosives. In his concluding remarks, the applicant’s representative stated that R., acting as an agent provocateur, had instigated the offence. He further argued that the prosecution had failed to secure R.’s attendance at the trial so that evidence could be taken from him.
On 21 July 2003 the trial court found the applicant guilty and sentenced him to one year’s imprisonment. It established that Mr T.A. had taken explosives in 2001 from a mine where he had worked. On the morning of 16 June 2003, the applicant had agreed with Mr A.P. and Mr A.A. to sell the explosives to R. The transaction was supposed to take place in the village of Tri Cesmi. The same day, Mr A.P. and Mr A.A. went to Mr T.A.’s house and obtained the explosives from the latter’s wife, Mrs S.A. They put the explosives in their car and drove towards Stip. The applicant joined them in the car at the V.P. petrol station near Stip. They were stopped by police on their way to the village of Tri Cesmi, where the sales transaction, which had earlier been agreed between the applicant and R., should have taken place. Mr A.A. was driving the car and the explosives were found behind the right-hand front seat. The police issued Mr A.P. with a receipt for temporarily seized objects (потврда за привремено одземени предмети).
The trial court stated that evidence of the alleged crime was provided by the statements of Mr T.A., Mr A.P. and the applicant and by the actual actions taken by each of them. The court also referred to documentary evidence, namely two expert reports, several search reports, photo evidence and the explosives and detonators found. The trial court rejected the applicant’s allegations of being entrapped by an agent provocateur as “ill-founded” and “irrelevant”.
On 11 September 2003 the applicant, through his representative, complained that, inter alia, the trial court had not provided reasons for rejecting his request to examine the key witness on his behalf, namely the agent provocateur. He argued that there was considerable evidence that he had been incited by a police informer to uncover the person who was able to obtain explosives, even though the police had already known about the latter. He further alleged that the whole series of events had been planned in advance and monitored by the police. He considered it crucial for the court to establish whether it was the applicant who had approached the police informer of his own accord or whether it was the agent provocateur who had taken the initiative. He regarded it as inhuman for the investigating authorities to have taken advantage of his poor standard of living to ensure a successful police operation. He therefore concluded that the trial court had erred in rejecting his request to examine the buyer whose identity, in fact, he did know. That person was Mr R.Dz. The applicant also provided his address and requested the Court of Appeal to examine him regarding the circumstances surrounding the applicant’s involvement in the crime.
At a session (седница) held on 25 February 2004, the Štip Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to a term of eight months’ imprisonment. It upheld the remainder of the trial court’s decision. At the session, the applicant requested acquittal and stated that he would not have had any involvement in the crime had it not been for the agent provocateur. The Court of Appeal established that the fact that no items had been confiscated from the applicant did not rule out his guilt. It further found that evidence adduced by the trial court, namely the statements given by the applicant, Mr A.A. and Mr A.P., together with other evidence, corroborated the contention that the applicant, before arriving at the petrol station, had instructed the other two accused to obtain the explosives with the intention of selling them to the buyer Mr R.Dz., with whom he had arranged the transaction. It concluded, therefore, that the applicant’s defence rights had not been violated.
The court further rejected the applicant’s allegations that he had been incited to commit the offence by an agent provocateur, on the grounds that the applicant himself had stated in the pre-trial proceedings that, having been asked by his acquaintance, Mr R.Dz., whether he knew anyone selling explosives, he had offered the latter explosives, which he had said he would secure through another person. The applicant had then agreed to bring the explosives to the petrol station and take them to the village of Tri Češmi afterwards. The court further relied on Mr A.P.’s statement, according to which the applicant had promised him a reward of DEM 100, to be deducted from the selling price of the explosives after the transaction. Finally, the court concluded that the trial court had established all facts relevant to the case and that accordingly, examination of Mr R.Dz., the alleged agent provocateur, was not necessary.
On 9 April 2004 the applicant lodged with the Supreme Court an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). He complained that the lower courts had erred in rejecting his request for examination of the alleged agent provocateur as irrelevant. Relying on Article 6 of the Convention, the applicant complained that the lower courts had failed to consider the arguments in his defence.
On 18 May 2004 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the lower courts had adduced sufficient evidence to establish the truth and that the applicant’s arguments had not been such as to undermine their credibility. It further stated that the applicant’s conviction had not been based, as he alleged, on inadmissible evidence. The applicant’s allegations had been examined by the Court of Appeal, which had provided sufficient reasons to satisfy the Supreme Court. As to the applicant’s allegations that there had been a violation of Article 6 of the Convention as his conviction had been based on evidence which could not serve that purpose, namely the evidence of an agent provocateur, the Supreme Court stated:
“... the court does not accept this allegation ... given that, in order for there to have been a violation of Article 6 of the Convention concerning the right to a fair trial, the lower courts’ decisions must have been based solely on evidence provided by a so called agent provocateur. The lower courts’ decisions were not based on any such evidence ... On the contrary, the defence insisted that evidence should be heard from such a witness. The witness in question was not examined and the courts’ decisions were in no way based on statements made by him. The lower courts adduced sufficient evidence and provided sufficient reasons in relation to all the defence arguments. There has, accordingly, been no violation of Article 6 of the Convention.”
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention that he had been incited to commit the offence by Mr R.Dz., the alleged agent provocateur, and that the domestic courts had applied the wrong standard when considering his arguments in that regard.
THE LAW
The applicant complained that he had been entrapped to commit the offence by an agent provocateur, rendering the proceedings unfair and in breach of Article 6 § 1 of the Convention. The Court considers that this complaint concerns the failure of the national courts to call the alleged agent provocateur, as the key witness on whom the defence case rested. It accordingly falls to be examined under Article 6 § 1 taken together with Article 6 § 3 (d) of the Convention (see Popov v. Russia, no. 26853/04, § 175, 13 July 2006). These provisions, in so far as relevant, read as follows:
Article 6 § § 1 and 3 (d)
“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 ... “
A. The parties’ submissions
Within the time-limit set by the Court, after having granted their request for reinstatement of the proceedings, the Government submitted that the applicant, although represented by counsel, had not requested examination of the alleged agent provocateur in the pre-trial proceedings and at the trial. This issue had been firstly raised by his representative in the concluding remarks. Information about the identity of the alleged agent provocateur had been provided, for the first time, in the appeal against the trial court’s decision. They further maintained that the national courts had established the applicant’s guilt after considering documentary evidence and hearing oral evidence from the co-accused and the applicant, who had not denied his involvement in the crime. Furthermore, the national courts provided sufficient reasons for rejecting his request for examination of the alleged agent provocateur. They stated that even if that person had confirmed the applicant’s version, it could not have justified the latter’s subsequent actions. No evidence deriving from the alleged involvement of an agent provocateur had been used in court against the applicant. Lastly, the applicant did not take any steps to inform the authorities that Mr R.Dz. had allegedly incited him to commit the offence of which he had been convicted.
The applicant stated that there had been no time-limit for submitting new evidence. He requested examination of the alleged agent provocateur at the appeal stage, since it was then that the latter’s identity had become known to him. He further maintained that on the critical date he had been under continuing pressure by the alleged agent provocateur, who had followed him in the city as a “spider” and often called him on his phone. The police informer had been active until the offence had been finally completed, namely he had chosen the petrol station to be the meeting point; he had accompanied the applicant when the other co-accused had arrived with the explosives and he had pressed him to get into the car. The national courts had refused to examine Mr R.Dz. in order to conceal the fact that the entire operation had been planned by the police, without having been authorised by the competent bodies.
B. The Court’s consideration
The Court reiterates that as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, p. 31, § 68). More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25); it “does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as is indicated by the words ‘under the same conditions’, is a full ‘equality of arms’ in the matter” (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 38-39, § 91 and Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89).
Even though it is normally for the national courts to decide whether it is necessary or advisable to call a witness, there might be exceptional circumstances which could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (see Popov, cited above, §§ 176-179).
Turning to the present case, the Court notes that the applicant’s conviction rested on the statements of Mr A.P., Mr A.A. and the applicant’s confession about his role in the crime. Several items of real evidence were also taken into account. On 17 June 2003 in the pre-trial proceedings, Mr A.P. and Mr A.A. stated that the applicant had instructed them to find explosives. According to the applicant, he did so after being asked by his acquaintance, Mr R.Dz., whether he had known anyone able to obtain explosives. The applicant, assisted by counsel, confirmed this on two occasions, namely on 23 June and 18 July 2003 respectively. His arguments, raised for the first time in the concluding remarks, that he had been incited to commit the offence by Mr R.Dz., the alleged police informer, were rejected by the trial court as “ill-founded” and “irrelevant”.
In his appeal, the applicant requested examination of Mr R.Dz., whose identity had been meanwhile established, with a view to substantiate his allegation that the latter had exerted such influence on him as to incite the commission of the offence that would otherwise not have been committed. The Court of Appeal dismissed this request by acknowledging that the applicant had been asked by Mr R.Dz. whether he had known anyone selling explosives. It further concluded that there was sufficient evidence to corroborate the applicant’s guilt. The Supreme Court accepted that reasoning.
On the facts of the case, the Court considers that the applicant’s conviction was based on consistent evidence, which credibility the applicant did not challenge in the domestic proceedings despite having been entitled to do so. In refusing to examine Mr R.Dz., the domestic courts gave their explanation as to why his statement would not be important for the examination of the case. In this connection, they stated that it has been already accepted that the applicant had been asked by Mr R.Dz. to find explosives. That implied that his examination would not have added anything new in this respect. In the Court’s view, such reasoning may be considered sufficient and reasonable (see, a contrario, Vidal v. Belgium, 22 April 1992, § 34, Series A no. 235 B). On the other hand, the applicant was free to call off his involvement in the offence. In this connection allegations, which the applicant did not raise in the domestic proceedings, notably that he had been under continuing pressure of the alleged agent provocateur to commit the offence, are unsubstantiated. Furthermore, even assuming that the applicant was incited initially to commit the offence by Mr R.Dz., the Court observes that his conviction was not founded on any evidence obtained as a result of police entrapment, which could render the proceedings unfair and in breach of Article 6 of the Convention (see Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 54 and 60, ECHR 2008, and the references cited therein). The Supreme Court confirmed that in its decision.
In these circumstances, the Court considers that the domestic courts’ refusal to examine Mr R.Dz. did not lead to a limitation of the defence rights incompatible with the guarantees of a fair trial enshrined in Article 6 of the Convention.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President