European Court of Human Rights

 

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF ILJAZI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

 

(Application no. 56539/08)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

3 October 2013

 

 

 

 

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 Iljazi v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 10 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 56539/08) 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 Mensur Iljazi (“the applicant”), on 17 November 2008.




  The applicant was represented by Mr D. Kadiev, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.




  The applicant alleged that his right to due process had been infringed on account of a refusal by the domestic courts to admit evidence he wished to adduce.




  On 8 June 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicant was born in 1962 and lives in Skopje.




  On 14 May 2007 an investigating judge at the Kočani Court of First Instance (“the trial court”) opened an investigation against the applicant on suspicion of drug trafficking. His pre-trial detention was also ordered. The decision stated inter alia:

“[O]n 10 May 2007 [the applicant] had bought, from an unidentified seller in Istanbul, 9.5 kg of heroin, which [the applicant] had packed in nineteen plastic bags ... He had hidden the packed drugs in textile goods acquired in Turkey and had loaded them in the cargo area of [a truck] owned by the company ... where he is employed in a position of responsibility. On 13 May 2007 [the applicant] tried to bring the drugs illegally [into the respondent State] ...”




  The decision also referred to a statement given by the applicant on 14 May 2007, which was not submitted to the Court. In their observations the respondent Government referred to that statement, in which the applicant had stated, inter alia, as follows:

“... S.B. and T. were present in the car park. They loaded goods that belonged to several manufacturers into the truck and the trailer. During that time I was present in the car park, but I was walking around the truck searching for parts to repair it. I did not observe the loading. As I said, it was S. and T. (referring to S.B. and T.S.) who observed and carried out the loading (of the truck).”




  The Government also referred to a statement given on the same day by G.Z., a witness who was identified in the criminal proceedings as the applicant’s partner. G.Z. stated:

“... [A]t about 10 a.m. we arrived at the car park, where goods were starting to be loaded (into the truck). I was present when ten bags containing textile goods were loaded. At about 3 p.m. I left for Skopje with another truck. While I was in the car park, goods were loaded by S.B. and T.S, both from Pristine. After S.B. left, T.S. continued the loading ...”




 The applicant did not dispute the above statements.




 On 16 May 2007 the Kosovo[1] Organised Crime Bureau in Pristine interviewed S.B., a carrier from Pristine who transported goods from Turkey to Kosovo, and T.S., who worked with S.B. The record of the questioning was in English and contained the full names and addresses of both S.B. and T.S., citizens of Kosovo. According to the record, S.B. stated, inter alia:

“... [A]ll goods of [non-regular clients] are checked in advance by me or [my] employees, whereas we don’t check at all goods of [clients we have dealt with] for a long time ... T.S. and I were present [while the goods were loaded]. I was present while half of the trailer was loaded and then, at about 12 am. (on 10 May 2007), I left for Pristine ... [They] (the clients who delivered the [last shipment of] goods) were regular clients whom I know ... [A]t about 2-3 pm. (on 13 May 2007) G.Z. called to tell me that his truck had been stopped and that some forbidden goods had been found in two containers, to one of which the name tag of a certain B.S. had been affixed. Inside, there had been another label with the letter “S”, which referred to the company [S.T.] that had loaded the goods in the truck. (Despite the fact that S.B. did not know any B.S., he had not checked the containers) [since] [T]hey had been sent by the company S.T.; we know these people and we have a verbal agreement to transport goods ... My employee T.S. wrote in his notebook just the name ‘B.S.’ in order to know to whom the goods belonged. He registered these goods under the number 382-383. The label indicating that these goods were T-shirts was affixed in person by an employee of the company S.T.”




  T.S. confirmed S.B.’s statement regarding different practices in dealing with goods sent for transportation by regular and non-regular clients. He also acknowledged that he was responsible for registering the goods being transported from Turkey to Kosovo. He stated, inter alia:

“... On 11 May 2007 goods were loaded the whole day ... During that time, the dispatcher of the goods and I were present (in the car park). I was also in charge of the goods that were loaded in the truck. As far as I noticed there was nothing suspicious. They (the clients who delivered the goods) were regular clients ... the letter ‘S’ (referring to the name tag inside the two containers where drugs were found) referred to the company which loaded the goods in the truck. The letter ‘S’ concerns goods that belong to the company S.T. or a person called S. (the co-owner of the company S.T.) who had personally dispatched that day the goods that were stopped in Macedonia ... I just wrote in my records the name B.S. in order to know to whom the goods belonged. I registered these goods under the number 382-383. S. attached personally the label [indicating] that the goods were T-shirts. I did not check the goods because S.J. told me ‘I vouch for the goods ... of the company S.T., especially for goods with the letter ‘S’.”




  Both S.B. and T.S. denied having had any connection with the case.




  According to an indictment filed with the trial court on 30 May 2007, on 10 and 11 May 2007 the applicant had loaded 9.079 kg of heroin, which was already packed in nineteen plastic bags, together with some textile goods, into a truck that belonged to the company D.B., which was managed and owned by the applicant. On 13 May 2007 the applicant, driving the truck, had entered the respondent State at the Delčevo border-crossing, where the drugs were found by customs.




  The trial court held two hearings, on 28 June and 13 July 2007. On the latter date it heard oral evidence from the two customs officers who had discovered the drugs in the truck, and from Mr A.N., the authorised representative of a carrier association. The latter produced evidence regarding responsibility for the transportation of goods. He stated, inter alia:

“... The dispatcher and recipient are responsible for the goods being transported ... The driver, i.e. the carrier, is responsible for the quantity of goods and any damage. The dispatcher is responsible for the contents of a shipment, together with the customs officers on the shipping post ... The driver can monitor the number of packages. He or she cannot check the contents of the shipment. The driver can act only if he or she notices that undeclared goods have been loaded ... The checking of a shipment loaded in a truck is carried out by the exporter or the customs officer. The quality of the merchandise is checked by the exporter and the importer. The carrier, i.e. the driver, does not check the quality of the merchandise ...”




  On the same date, the applicant, who was legally represented, asked the trial court to admit the statements of S.B. and T.S. given before the Kosovo Organised Crime Bureau in Pristine. The trial court rejected that request on the ground that there was already sufficient evidence to establish the facts.




  On 13 July 2007 the court rendered a judgment in which it found the applicant, who had no previous criminal record, guilty, and sentenced him to five years and three months’ imprisonment. The operative provisions stated that the court found the applicant guilty of drug trafficking since on 10 and 11 May 2007 he had loaded and hidden drugs in a truck and transported them from Turkey into the respondent State. The court dismissed the applicant’s arguments that he had not known to whom the drugs belonged, that he had used different border-crossing points on his return to the respondent State for practical purposes, and that S.B. had been present when the goods were loaded into the truck in Turkey. The following items of evidence were listed in the judgment: oral evidence given by the applicant, G.Z., two customs officers and Mr A.N.; search reports regarding the truck and the applicant dated 13 May 2007; a TIR carnet and invoices; certificates in respect of temporarily seized objects issued on 13 May 2007; and an expert report drawn up on 15 May 2007 confirming that the drugs found in the truck were heroin. The court also issued a forfeiture order in respect of the truck.




  The court found that on 10 May 2007 textile goods had been loaded, in the presence of the applicant, G.Z. and S.B., in the truck in the car park in Istanbul. After ten to fifteen containers had been loaded, G.Z. had left the car park, just after S.B. had done so. The next day, textile goods had continued to be loaded. The applicant had been present in the car park while the goods were loaded into the trailer and the truck. The applicant had hidden the drugs, already packed in nineteen plastic bags, in two containers with other textile goods. B.S.’s name tag had been affixed to the containers. The court stated, inter alia:

“That the applicant loaded the drugs into the truck was confirmed by G.Z., who said that S.B. and he had left (the car park) and that the applicant had remained on the scene while the textile goods were loaded into the truck. That [the applicant] knew that he was transporting drugs was confirmed by the fact that he changed border-crossing points on his return, that is, he used border-crossing points where customs control was less strict. Transportation through those border-crossing points was longer and more expensive ... That S.B. was not present when the truck was loaded is established on the basis of G.Z.’s statement. That the applicant loaded the drugs into the truck is based on the fact that he was obliged to observe what was loaded. G.Z. confirmed that in his statement. That the drugs were stored in the central part of the truck, which was only accessible with difficulty, implies that the applicant loaded the drugs and knew that he was transporting them.

On the basis of the evidence admitted and the facts established, the court considers that the accused [was engaged in drug trafficking] since it is proven that he was aware that he was transporting drugs, previously packed and hidden in textile goods, which he loaded into the truck and brought illegally into [the respondent State]. He was thus engaged in drug trafficking.”




  The applicant appealed, alleging substantive procedural flaws and errors on the facts and law. He complained that the trial court had not established the truth regarding, inter alia, the person who had loaded the goods at the critical time. In this connection he referred to the statements of S.B. and T.S. (see paragraphs 10 and 11 above), in which they had stated that he had neither been personally involved nor observed the loading of the goods into the truck. After S.B. and G.Z. had left the scene, the goods had continued to be loaded by T.S., assisted by another employee - a dispatcher. The applicant referred to the trial court’s refusal to admit the statements of S.B. and T.S. in evidence (see paragraph 15 above), arguing that the Customs Bureau, which had filed the criminal complaint against him, had been in possession of those statements but had failed to submit them to the public prosecutor. That fact had been brought to the attention of the trial court, which could have obtained them easily. By refusing to request those statements proprio motu, the trial court had established the facts, and convicted him, erroneously. In the applicant’s view, those statements provided clear evidence that he had not had anything to do with the drugs. He further submitted a copy of the statements, translated into Macedonian.




  The applicant further complained that the judgment contained unclear and conflicting reasoning on the question whether he had loaded the drugs into the truck or he had simply been present in the car park when the drugs were loaded by other persons. He argued that loading drugs into his truck and failing to observe that drugs had been loaded into his truck were not the same thing. The applicant contended that factual gaps had been filled in by speculation.




  At a hearing held on 28 November 2007 in the presence of the applicant’s representatives and the public prosecutor, the Štip Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s judgment. As to the applicant’s complaint regarding the evidence produced by S.B. and T.S., the court stated:

“... in refusing to admit the statements of S.B. and T.S., the trial court did not violate [the applicant’s] right to defence ... since the statements ... (were) given before the Kosovo police authorities, and the fact that [S.B. and T.S.] were not examined is of no relevance ... since the trial court correctly established, on the basis of G.Z.’s statement, that S.B. had not been present while (the goods were being loaded) into the truck where the drugs were found.”




  On 21 January 2008 the applicant lodged a request with the Supreme Court for an extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), in which he complained, inter alia, that his defence rights had been violated because the trial court had refused to admit the statements of S.B. and T.S. and had failed to secure their attendance at the trial despite the fact that it had known their names and whereabouts. The examination of these witnesses by the Kosovo Police Service had been requested by the national authorities after the drugs had been found.




  In supplementary submissions received by the Supreme Court on 10 April 2008, the applicant complained that his conviction had been based on the fact that he had used the Delčevo border-crossing, where customs control had been, as established by the trial court, less strict. In this connection he submitted a copy of his passport, which had earlier been deposited with the trial court, according to which he had used that border-crossing on many occasions before the critical day.




  The applicant’s appeal was forwarded to the public prosecutor for comments. As indicated in the Supreme Court’s judgment (see paragraph 24 below), together with submissions Ovp.br. 64/08 (a copy of which was not submitted to the Court), the public prosecutor stated that the applicant’s request should be accepted.




  On 10 April 2008 the Supreme Court dismissed the applicant’s request and confirmed the lower court’s judgments. It held as follows:

“... (The court) considers that all the relevant facts are supported by the admitted evidence, and the (established) facts are beyond any reasonable doubt (фактичката состојба не се доведува под значително сомнение) ... [T]he lower courts, after having made a complete analysis of all the evidence, documentary and verbal, correctly and completely established all the relevant facts, especially regarding the actions that [the applicant] took at the critical time and place ... On the basis of all the admitted evidence, in particular [search records, certificates for temporarily seized objects, an expert report], statements given by witnesses, (namely) [the customs officers] and G.Z., the lower courts correctly and completely established the sequence and chronology of the events prior to and after the offence was committed.

The above-cited evidence, as well as other verbal and documentary evidence ... confirms that [the applicant] ... transported drugs - heroin, which he had earlier, in Istanbul,Turkey, hidden, together with other textile goods, and loaded into the central cargo area of [his truck] ...

The Supreme Court underlines that [the lower courts’] refusal to admit evidence proposed by the defence ... cannot be regarded as a violation of the defence rights of the convicted person. [S.B.], as confirmed by [G.Z.], was not present when the goods were loaded in Turkey ...”




  This judgment was served on the applicant on 29 May 2008.

II.  RELEVANT DOMESTIC LAW

Criminal Proceedings Act of 2005, consolidated version (Official Gazette no. 15/2005)




 Section 308 § 2 of the Criminal Proceedings Act 2005 (“the Act”) provides that the president of the adjudicating panel of a trial court is obliged to ensure the complete examination of a case, to establish the truth and to remove any procedural delays and superfluous issues.




  Under section 340 §§ 2 and 6 of the Act, the establishment of the truth concerns all facts that a court considers relevant for a correct judgment. The adjudicating panel can decide to request evidence that has not been proposed or evidence that was withdrawn.




  According to section 351 § 1 of the Act, if a fact is to be established on the basis of a personal observation by an individual, the latter should be examined at a hearing. The examination cannot be replaced by the reading of a statement by that person.




  Section 365 § 1 of the Act provides that the court is to decide on the basis of the facts and evidence admitted at the trial.




  According to section 389 § 1, the second-instance court is to decide on the basis of a session or a hearing.




  Under section 390, the second-instance court will hold a hearing only if it is necessary, because of errors of fact, for new evidence to be admitted, or previously admitted evidence to be re-presented and if there are no justified reasons for the case to be remitted for a retrial.




  Under section 398 § 1, the second-instance court can reject the appeal as belated or inadmissible; it can dismiss the appeal and confirm the lower court’s judgment; it can quash the lower court’s judgment and remit the case for fresh examination by the trial court; or it can overturn the trial court’s judgment.




.  Under section 418 § 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 would become applicable after 1 December 2013.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION




  The applicant complained under Article 6 § 3 (d) of the Convention about the domestic courts’ refusal to admit the written statements of witnesses S.B. and T.S. and to secure their attendance and examination at the trial. The Court considers that these complaints should be analysed under Article 6 §§ 1 and 3 (d) of the Convention, which read as follows:

“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.  Admissibility




  The Government did not raise any objection as regards the admissibility of the application.




  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions




  The applicant maintained his complaint. He submitted that the trial court had been made aware, at the earliest stage of the proceedings, of the written statements of S.B. and T.S. Consequently, it was obliged, under sections 308 and 340 of the Act (see paragraphs 26 and 27 above), to admit them and, subsequently, to examine S.B. and T.S. That the impugned proceedings had been unfair was supported by the fact that the Customs Bureau, which had lodged the criminal complaint against the applicant and had been in possession of those statements, had failed to communicate them to the public prosecutor and the court. That evidence had accordingly not been examined.




  The Government submitted that the applicant had had a fair trial. The courts had admitted all the relevant evidence, which the applicant had had the opportunity to challenge. He had requested only once that the statements in question be admitted in evidence. He had not sought, although he had been legally represented, the examination of S.B. and T.S. by the trial court. Copies of their statements, translated into Macedonian, had been submitted for the first time with the applicant’s appeal. Apart from their names, they had not contained any information as to the witnesses’ capacity, or the purpose for which they had been examined. The records of their questioning had not been signed, nor had any seal been affixed to them. Consequently, the trial court had not been obliged to admit those statements since they were not valid evidence under section 365 of the Act (see paragraph 29 above) on which a judgment could be based.

2.  The Court’s assessment

(a)  General principles




  The Court recalls that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010).




  The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted in evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. In particular, “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 ... Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses”; that provision “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 Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V, and Popov v. Russia, no. 26853/04, § 176, 13 July 2006). 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 ibid, § 179).

(b)  Applicability of these principles to the present case




  Turning to the present case, the Court notes that the investigation was opened on the basis of a reasonable suspicion that on 10 May 2007 the applicant had bought, packed, hidden and stored drugs in his truck (see paragraph 6 above). According to the prosecution, on 10 and 11 May 2007 the applicant loaded the drugs, which were already packed, together with textile merchandise, into the truck (see paragraph 13 above). The applicant admitted that he had been present in the car park in Turkey when the goods were loaded. However, he denied that he had loaded any goods himself or observed the loading. In this connection, he stated that S.B. and T.S. had loaded the goods (see paragraph 7 above). His defence position was accordingly aimed at proving that he had not loaded the drugs into the truck and that he had been unaware of their presence (see paragraph 16 above).




  The trial court held two hearings. At the second hearing, held on 13 July 2007, the applicant requested that the trial court obtain the written statements of S.B. and T.S. given on 16 May 2007. It is evident from the records of their questioning that both S.B. and T.S. witnessed the loading of the goods into the applicant’s truck in the car park in Turkey. S.B. left the scene at noon on 10 May 2007, but T.S. remained until the loading was completed on 11 May 2007. Neither of them stated that the applicant had loaded any goods into the truck. On the contrary, they both stated that workers from the company S.T., which was apparently the dispatcher of the goods, had loaded the goods into the truck. T.S. was even more specific: he stated that S., who was the co-owner of the company S.T., had personally delivered the goods in which the drugs were found. Moreover, they both confirmed that S. had personally affixed a label to the goods stored in the containers where the drugs were subsequently found stating that they were T-shirts (see paragraphs 10 and 11 above). It has not been claimed that the applicant was in possession of those statements at that time. The trial court refused to admit them in evidence on the ground that there was already sufficient evidence to establish the facts. It appears that the applicant did not make an explicit request for the trial court to examine S.B. and T.S. However, in the Court’s view, that did not prevent the trial court from calling these witnesses if it considered their evidence relevant for the establishment of the truth. The Court observes in this context that pursuant to sections 308 and 340 of the Criminal Proceedings Act the trial court was required to extend the taking of evidence proprio motu to all relevant facts and means of proof, including those which had not been adduced, with a view to establishing the truth and the actual circumstances of the case (see paragraphs 26 and 27 above).




  On 13 July 2007 the trial court convicted the applicant. The operative provisions stated that he had loaded and hidden the drugs in the central cargo area of the truck and had transported them from Turkey to the respondent State (see paragraph 16 above). His conviction was based on G.Z.’s testimony, which stated that the applicant had been present in the car park at the critical time; on the fact that he had used border-crossing points where customs control had been less strict; and the fact that the drugs had been hidden in a part of the truck that was difficult to access. Consequently, there was no direct evidence that the applicant had loaded and hidden the drugs in the truck. The trial court did not explain how the facts described above corroborated the actions imputed to the applicant. Even G.Z., who had left the car park earlier, stated that the goods had been loaded by S.B. and T.S., and that the latter had continued loading the goods after G.Z. had left the car park (see paragraph 8 above).




.  In such circumstances, there is no doubt that the applicant’s request that the courts admit the evidence of S.B. and T.S. was sufficiently reasoned, relevant to the subject matter of the accusation, and could arguably have strengthened the defence position (see Polyakov v. Russia, no. 77018/01, § 34, 29 January 2009, and Guilloury v. France, no. 62236/00, § 55, 22 June 2006). The trial court relied on G.Z.’s testimony in concluding that S.B. had not been present when drugs were loaded into the truck (see paragraph 17 above). The Court notes, however, that no explanation was given as regards the evidence of T.S., who was responsible for the loading and was present at the critical place up to the time when the applicant left the car park with the truck (see paragraph 11 above).




  The applicant appealed before the Štip Court of Appeal. In support of his appeal he submitted a copy of the witnesses’ statements, which he had apparently obtained in the meantime. The Court of Appeal did not make its own assessment of the facts, but relied entirely on the facts established by the trial court. It neither admitted the statements of S.B. and T.S., which were allegedly in the possession of the Customs Bureau, a State body, nor considered the possibility of examining these witnesses, despite the fact that the records of the questioning contained their full names and addresses (see paragraph 10 above). In this connection, the Court notes that that court had full jurisdiction to review the case on questions of both fact and law (see paragraphs 31 and 32 above).




  In his request for an extraordinary review of the final judgment before the Supreme Court, the applicant raised his grievances about the lower courts’ refusal to examine S.B. and T.S. or to admit their statements. That the public prosecutor supported that request (see paragraph 23 above) shows that it was not unreasonable (see Polyakov, cited above, § 34). The Supreme Court, however, upheld the lower courts’ judgments and the reasons given regarding S.B. Again, no explanation was given as regards T.S.’s evidence. Moreover, it did not explain how the evidence listed in its judgment (see paragraph 24 above), which post-dated the events in the car park in Istanbul, corroborated the finding that the applicant had loaded and hidden the drugs in the truck.




  In view of the foregoing, the Court considers that, in the absence of any direct evidence, the applicant should have been afforded a reasonable opportunity to challenge the assumption that he had loaded and hidden the drugs in the truck. The refusal to examine the defence witnesses, at least T.S., led to a limitation of the defence rights incompatible with the guarantees of a fair trial enshrined in Article 6 (see Popov, cited above, § 188).




  The Court considers that there has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION




  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.”

A.  Damage




  The applicant claimed 27,010 euros (EUR) in respect of pecuniary damage, of which EUR 7,500 corresponded to the value of the truck that had been confiscated in the impugned proceedings and EUR 19,510 to loss of income during his imprisonment. He also claimed EUR 85,000 in respect of non-pecuniary damage due to the alleged violation of his right to a fair trial and the refusal of the national authorities to order his temporary release from custody in order for him to attend the funeral of his mother.




  The Government contested these claims as unsubstantiated. They stated that there was no causal link between the alleged violation and the pecuniary damage claimed.




  The Court considers that the basis for an award of just satisfaction in the present case must be the violation of the applicant’s defence rights under Article 6 of the Convention. It further observes that the applicant’s claims for pecuniary damage are related to the outcome of the criminal proceedings against him and the alleged consequences of his conviction. In this connection, the Court notes that it cannot speculate as to what the outcome of the impugned criminal proceedings against the applicant would have been had there been no violation on the above-mentioned ground (see, mutatis mutandis, Schmautzer v. Austria, 23 October 1995, § 44, Series A no. 328-A, and Demerdžieva and Others v. the former Yugoslav Republic of Macedonia, no. 19315/06, § 33, 10 June 2010). It therefore finds no causal link between the pecuniary damage claimed and its finding of a violation of Article 6. Accordingly, the Court makes no award under this head.




 On the other hand, the Court accepts that the applicant suffered non-pecuniary damage on account of the failure of the domestic courts to admit the evidence he wished to adduce. Ruling on an equitable basis, the Court awards him EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable. It rejects the remainder of his claim under this head as unrelated to the violation found.

B.  Costs and expenses




  The applicant did not make any claim in respect of costs and expenses.




  Accordingly, the Court does not award any sum under this head.

C.  Default interest




  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 application admissible;

 

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

 

3.  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, EUR 2,400 (two thousand and four hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                               Isabelle Berro-Lefèvre
       Registrar                                                                              President




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[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.