European Court of Human Rights

FIRST SECTION

Application no. 3519/08
Blagoj ARSOV
against the former Yugoslav Republic of Macedonia
lodged on 21 December 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Blagoj Arsov, is a Macedonian national who was born in 1948 and lives in Skopje.

A.  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 2005, an investigation was opened against the applicant on account of sexual assault of a child. During the pre-trial proceedings, an investigating judge of the Skopje Court of First Instance (“the trial court”) heard M.B. and G.B, the victims, mentally handicapped minors at the time, Mr M.B. and Mrs I.B., the victims’ parents and the applicant.

The victims stated that they had often visited the applicant in his house, in which he repaired bicycles. They both confirmed that the applicant had sexually abused them on several occasions in the second half of 2005, the last incident being in September 2005.

Mr M.B. confirmed that his children had often stayed in the applicant’s house. He had never suspected anything and though that they were going there to have their bikes repaired. After such visit in September 2005, M.B., his daughter, was visibly distressed. After they returned home, Mrs I.B. undressed M.B. who told her that the applicant had sexually abused her and her brother.

Mrs I.B. confirmed Mr M.B.’s version of events. She specified that the critical incident had occurred on 27 September 2005. After having inspected M.B., she noticed redness on her chest and genitals. Subsequently, M.B. underwent a medical examination.

On 23 February 2006 the public prosecutor lodged an indictment against the applicant.

On 13 July 2006 the trial court held the first and only hearing on which it heard oral evidence from the applicant, Mrs I.B. and a representative of a Social Care Centre (“the social worker”). Since the applicant’s representative withdrew from the case with a letter dated 4 May 2006 and the legal representation was compulsory, the court ordered the applicant to appoint another lawyer of his own choosing. Since the applicant failed to do so within the one-hour time-limit set by the court, the latter appointed Mrs N.G., a lawyer, to represent him. On this occasion, the court-appointed lawyer was served with the bill of indictment.

The applicant denied that he had sexually abused M.B. and G.B. and said that the latter had accused him in error and that the offence had been committed purportedly by another person having the same name who had worked in a nearby grocery.

The social worker stated that he could not confirm, without a medical examination, whether M.B. and G.B. had been sexually assaulted. In this connection he referred to the victims’ mental health and Mrs I.B.’s earlier statement according to which sometimes the victims had been rude to each other requesting their mother’s intervention. He further stated that both victims, during the interviews, confirmed that the applicant had committed the crime.

The court rejected the applicant’s request to have the victims and their father examined. It also refused to examine certain Lj. and Mr P.T., the applicant’s neighbours, who were called to testify that they had stayed often in the applicant’s house together with the victims and had noticed nothing unusual. It further consulted a medical report of 14 May 2005, according to which the victims had limited intellectual capacity, they were silent and problematic and they used indecent language. Reference was also made to a medical certificate issued to M.B.

On the same date the trial court convicted the applicant and sentenced him to a prison term of one year and a half. It relied on the statements given in the pre-trial proceedings and at the trial. It further referred to a medical report (no date specified) according to which, apart from a light abdominal injury and a bruise on her upper arm, M.B. sustained no injury nor were sperm traces found on her clothes or genitals. According to the medical certificate of 29 September 2005, M.B. was distressed, frightened and not responsive. The court rejected the applicant’s arguments that Mr M.B. had set him by making up the entire story and that it was actually the latter, who under the influence of alcohol, had beaten the victims immediately after they had left his house. It also rejected his allegations that Mr M.B. had pressed the victims to produce the incriminating statements.

On 13 November 2006 the applicant, represented by Mrs N.G., appealed against this decision arguing that on 27 September 2005, the critical date, he had not been alone with the victims, but that certain Mr D.S. had been present in the house all the time. Mrs V.S., Mr D.S.’s mother, had come in and out of the house during their stay. After M.B. had left the house, Mr M.B., who had been intoxicated, had started beating her: he grabbed her hair, hit her buttocks and pushed her against a fence. Mrs V.S. and a certain Mr V.B. had eye-witnessed the beating. In this connection he requested that the court examine the above witnesses. He further complained that the trial court had based his conviction on the victims’ statements given in the pre-trial proceedings and had failed to examine them, Mr M.B., Lj. and Mr P.T. The two latter were proposed to produce evidence that, given the specific location of the applicant’s house, namely on a crossroad, no activity taken inside the house could have remained unnoticed. In a separate appeal submitted by another lawyer, the applicant complained that his defence rights had been violated since the trial court had refused his request that the hearing of 13 July 2006 be postponed so that he would appoint a lawyer of his own choosing.

At a public hearing held on 20 February 2007, the Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. The court found no errors of fact and law and adhered to the reasons given by the trial court. It found no violation of the applicant’s defence rights stating that he had been given a court-appointed lawyer and he had not requested that the hearing be postponed. It did not address his complaints concerning the witnesses proposed.

On 11 May 2007 the applicant lodged an appeal with the Supreme Court on points of law (?????? ?? ???????? ????????????? ?? ?????????? ???????) in which he complained that the lower courts had failed to examine the witnesses in his defence and to order a psychological examination of the victims so that to verify the credibility of their statements. He also argued that no examination had been ordered that would confirm his paedophiliac predispositions. Lastly, he reiterated his complaints that the trial court had refused his request to postpone the hearing in order to appoint a lawyer of his own choosing and had given him insufficient time to prepare his defence.

On 10 July 2007 the Supreme Court dismissed the applicant’s appeal and confirmed the lower courts’ decisions. It stated that a repeated examination of the victims, given their age, would affected them considerably and the fact that they had clearly described the events and named the applicant as a perpetrator had made that request superfluous. It further found that the trial court had correctly appointed Mrs N.G. to represent the applicant given the fact that he had not appointed a lawyer of his own choosing although he had sufficient time to do so after his initially appointed lawyer had withdrawn. It further went to conclude that after the bill of indictment had been served on the applicant, he had presented his defence. The court made no comments as regards the lower courts’ failure to examine the other witnesses proposed.

The applicant submitted a copy of a handwritten statement signed by Mr P.T. in which the latter stated that the children (referring to the victims in the case) had been mentally handicapped and could have said anything or point to anyone for a chocolate. Several days after the critical date, he had met with G.B. who had told him that the applicant had made no harm to him and that others were lying. The children’s’ father had drunk a lot and had not cared much about the children, as had been the case with their mother. It is not apparent whether the applicant submitted this statement in the impugned proceedings. The statement was not dated either.

COMPLAINTS

Invoking Articles 33 and 34 of the Convention, the applicant complained that his defence rights had been violated in that the courts had not examined any of the witnesses proposed by him, had failed to order a psychological examination of the victims and had convicted him after having held only one hearing at which he had not been represented by a lawyer of his own choosing, but by a court-appointed lawyer who had not known the case and had unsuccessfully requested that the hearing be adjourned. He also complained about the lack of a medical examination that would confirm his paedophiliac predispositions.

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, was the refusal of the domestic courts to hear oral evidence from the witnesses, in particular Mr D.S., Mrs V.S. and Mr V.B., compatible with Article 6 of the Convention?

2. Did the applicant request adjournment of the hearing of 13 July 2006 on account of absence of legal assistance? With respect to designation of Mrs N.G., as court-appointed lawyer, did the applicant have the benefit of a defence that was “practical and effective” within the meaning of Article 6 § 3 (c) of the Convention?