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Cite as: [2014] ECHR 607

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FIRST SECTION

CASE OF DONČEV AND BURGOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 30265/09)

JUDGMENT

STRASBOURG

June 2014

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 Dončev and Burgov 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,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 20 May 2014,

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

PROCEDURE

The case originated in an application (no. 30265/09) 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 two Macedonian nationals, Mr Dragan Dončev (“the first applicant”) and Mr Stojan Burgov (“the second applicant”), on 3 June 2009.

The first and second applicants were represented by Mr Z. Avramov and Ms K. Kirova respectively, lawyers practising in Strumica. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

The applicants alleged, in particular, that their defence rights under Article 6 of the Convention had been violated on account of evidence produced by a witness whose identity had not been disclosed and who had been involved as an undercover agent in the operation that had led to their conviction.

On 7 October 2011 this complaint was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1971 and 1970 respectively and live in Strumica. They were police officers.

On 3 March 2005 the public prosecutor ordered, under sections 42(2)(2) and 142-b of the Criminal Proceedings Act (see paragraphs 31 and 32 below), special investigative measures including secret surveillance, audio-visual recording, a simulated offer of a bribe and the use of undercover agents (the last two measures were to be applied by six police officers whose identity remained undisclosed in the order). The order was valid between 15 March and 13 May 2005. It was issued on the basis of a request from the Department for Control and Professional Standards within the Ministry of the Interior, which suspected that traffic police officers had been accepting bribes from traffic offenders.

On 28 April 2005 the applicants stopped a car near Strumica, since it was being driven at more than 30 km/h over the stipulated speed limit. The driver was a certain K.N. from Skopje (“the driver”). The applicants warned the driver and registered his name and the fact that they had warned him in the official record. They did not draw up an official report (записник), nor did they press charges against him.

On 8 June 2005 the Ministry of the Interior (“the Ministry”) lodged a criminal complaint with the public prosecutor, alleging that the applicants had accepted a bribe of 500 Macedonian denars (MKD) from the driver (who was in fact an undercover agent, see paragraph 6 above) in exchange for not drawing up an official report and pressing charges against him. The complaint stated that the first applicant had fully admitted to the accusations and the second applicant had partially done so.

On 12 July 2005 an investigating judge of the Strumica Court of First Instance (“the trial court”) opened an investigation into the allegation that the applicants had accepted a bribe. In the proceedings before the investigating judge the applicants remained silent.

According to the indictment of 19 September 2005, the applicants accepted the bribe in exchange for not drawing up a report and instituting misdemeanour proceedings against the driver. The public prosecutor requested that the trial court take oral evidence from the accused and admit the evidence obtained as a result of the order of 3 March 2005 (see paragraph 6 above): four photographs; and an audio and video recording of the discussion between the applicants and the driver of 28 April 2005 (see paragraph 7 above).

On 28 November 2005 the trial court admitted the evidence produced by the prosecutor. The applicants remained silent. On 30 November 2005 the court rendered a judgment in which it convicted the applicants and sentenced them to a suspended prison term of six months. On the basis of the audio recording of the incident, the court established that the driver had exceeded the speed limit. He had offered - and the applicants had accepted - money in exchange for not pressing charges against him. In this connection, the court noted that under the law the driver was liable to a fine (between MKD 4,000 and MKD 12,000) or thirty days’ imprisonment, as well as a compulsory security measure (driving ban), for such an offence.

The applicants’ legal representatives, Ms M.G. and Mr V.Š., appealed against the judgment, arguing that there was no evidence to corroborate the applicants’ guilt. The audio evidence attested that the driver had offered the applicants money, but it did not establish that they had accepted it. Indeed, no bank notes marked in advance were found in their possession. The applicants further argued that under the applicable regulation, they had been authorised to warn the driver, a measure which they had considered justified in the circumstances of the case. The first applicant challenged the credibility of the audio recording, arguing that the transcript of the audio material was incomplete. The second applicant further complained that the trial court had neither examined the driver, nor confronted them with him.

On 28 June 2006 the Štip Court of Appeal accepted the applicants’ appeals and ordered a re-examination of the case. In so doing, it found that the lower court had incorrectly established the facts and had not provided sufficient reasons for its judgment. In this connection, it stated that neither the photographs nor the audio evidence had established that the applicants had accepted the bribe from the driver, who had not been examined. It therefore instructed the trial court to re-examine already admitted evidence and to question the driver in order to establish whether he had offered, and the applicants had accepted, MKD 500 in exchange for not pressing charges against him. It further stated:

“... other evidence should be admitted if necessary (confrontation between the accused and (the driver)).”

At a hearing, before the trial court, held on 15 May 2007, the applicants denied that they had accepted money from the driver. They stated that they had been authorised, under the law, to warn him. They further contested the audio recording, arguing that there were gaps and interruptions in it. Mr V.Š., the applicants’ legal representative, asked the court to hear oral evidence from the driver, as ordered by the Court of Appeal (see paragraph 13 above), and to obtain information from the Ministry as to whether the money had been marked.

On 21 May 2007 the trial court asked the Ministry to provide the name and address of the driver in order to examine and confront him with the applicants, “as instructed by the higher court”. It also sought information as to whether, under the order of 3 March 2005 (see paragraph 6 above), the money allegedly given to the applicants had been marked. In the absence of a reply, on 20 June 2007 the court repeated its enquiry. On 28 June 2007 the Ministry informed the court that the money had not been marked. That would have been the case had special investigative measures (audio and video recording) not been ordered. It further stated that the undercover agent (лице со прикриен идентитет) who had been used to simulate the offer of a bribe could be examined as a protected witness under section 147(2) and (3) of the consolidated version of the Criminal Proceedings Act (“the Act”), (which corresponded to section 142-c of the Act as amended in 2004, see paragraph 33 below).

In a hearing held on 5 October 2007 the applicants objected to the court’s examining the driver. In this connection, they stated that there were three persons with the same initials (K.N.) as the driver employed in the Ministry.

On 7 December 2007 the trial court examined the driver. According to the depositions taken on that date, he was regarded as a protected witness (заштитен сведок) and his examination was carried out under section 293 of the Act (which corresponds to section 270-a of the Act of 1997 as amended in 2004 (see paragraph 36 below)). The relevant parts of the court record of that date read as follows:

“The protected witness should be examined in a special room only in the presence of the judge and the public prosecutor in order to protect his identity. Since there is no such room in the court building, [the applicants] and their representatives, (as well as) the entire public, were ordered, on the basis of an advance agreement (претходен договор), to go into the waiting room.

The accused and the lawyers did not object.

...

The witness, whose pseudonym is K.N. (protected witness) from Skopje, fifty-years of age ... having been warned about the legal consequences of false testimony, states:

‘At 3 p.m. on 28 April 2005, in accordance with the [public prosecutor’s] order, I drove to Strumica together with two other persons ... I deliberately exceeded the speed limit assuming that there would be a road patrol ... I was stopped ... (then he described the events concerning another car which the applicants had stopped at that time, when (one of the applicants) had allegedly received MKD 500 from the driver of that car) ... the policeman who took the money from the other driver approached me and I said that it was unfair that they should punish me unlike the other (driver), who had paid ... Then the other policeman, who still had (in his hands) my (driving) documents, told me ‘Ok, we won’t punish you either’ and gave the documents back to me. I asked them whether I should also reward them for having not punished me, as the (other) driver had done, to which (one of the applicants) replied ‘It will be fine if you give something’. I asked ‘how much should I give?’, and he replied ‘There is no pricelist for that, it’s up to you’. Then, I said ‘I’ll give you as much as (the other driver), MKD 500’. I took out from my pocket MKD 500 and gave them to (one of the applicants) ... I asked them whether they would press charges against me or issue any penalty, to which (one of the applicants) replied ‘Keep your mouth shut and drive on’ ...

. The public prosecutor further asked the driver whether the money had been marked, to which he replied negatively.

The record further stated:

“Since there are no further questions, the court decides to remove the protected witness from the court room and to call the accused and their lawyers. A transcript of the statement of the protected witness should be given to them so that they may put questions to him through the court, to which the protected witness should reply.

The accused and their lawyers were called to enter the court room and at that moment, they said, in a loud voice ‘We request exclusion of the adjudicating judge, the panel, the trial court and the Štip Court of Appeal, since (the judge) is conducting the proceedings unlawfully and is not following the instructions of the Appeal Court. It is so since we were removed from the court room for 45 minutes, instead of being confronted with the witness. We suspect that no one gave a statement, all the more so since the accused have already met the protected witness”.

The court ordered an adjournment. On 7 and 13 December 2007 the presidents of the trial court and the Štip Court of Appeal respectively rejected the applicants’ requests for exclusion.

A hearing held on 1 April 2008 was attended by the applicants and Ms M.G., their lawyer. The driver was absent. The court stated that there was no evidence that he had been properly summoned for the hearing. The applicants were served with a copy of the court record of 7 December 2007 and the driver’s statement. The court minutes stated:

“... (the applicants) were told that they could put questions in writing, which the court would then forward to the protected witness in order for him to reply.”

On 9 May 2008 the trial court held a hearing. It was attended by the applicants and Mr V.Š., their lawyer. The driver was not present, despite the fact that he had been properly summoned. Mr V.Š. stated:

“I decline to examine the protected witness, K.N. and I object to the court record of 7 December 2007 since it is contradictory and untrue (Се откажувам од распит на заштитениот сведок К.Н. и приговарам на записниикот од 07.12.2007 бидејќи е контрадикторен и невистинит).”

On 15 May 2008 the trial court held another hearing, at which the applicants confirmed that they had received the bill of indictment and understood the charges against them. Both applicants maintained that they would be represented by Mr V.Š. They further stated:

“I maintain the statement given at the hearing of 15 May 2007 [see paragraph 14 above] and I have nothing to add”.

The court then read aloud the driver’s statement of 7 December 2007 and admitted as evidence the public prosecutor’s order, four photographs, as well as the audio and video recording of the critical event. The applicants made no reference as to the examination of the driver.

In the concluding remarks, Mr V.Š. denied that there was any material evidence that the applicants had committed the crime imputed to them; in particular, the video and audio material did not establish that they had received any money from the driver, nor had any marked bank notes been found in their possession. He further stated that:

“... we object to the use of the term ‘protected witness’ since it is not disputed that the (applicants) and (the driver) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness.”

Both applicants stated:

“I fully adhere to the concluding remarks of my representative. I want to add that I’m not guilty because I have not received any money”.

On 16 May 2008 the trial court rendered a judgment in which it found the applicants guilty and sentenced them to six months’ imprisonment, suspended for two years. It established that they had accepted the bribe from the driver, a police officer who had been following the public prosecutor’s order to use special investigative techniques. They received MKD 500 in exchange for not pressing charges, despite the fact that the relevant law provided for a fine or thirty days’ imprisonment, coupled with a security measure, for such an offence. The audio evidence established that the driver had exceeded the speed limit and had offered - and the applicants had accepted - the money. In this connection, the court stated:

“Following the instructions of the higher court, the (trial) court examined the driver with the pseudonym K.N. as a protected witness. He confirmed that he had been stopped on the day in question, since he had deliberately exceeded the speed limit ... [the applicants] had agreed to accept a bribe in the amount of MKD 500 in exchange for not drawing up a report and pressing charges.

In this context, the statement of the protected witness and the audio material are totally consistent ... In the note [of 28 June 2006], [the Ministry of the Interior] submitted that the identity of the witness K.N. was protected, i.e. that he was a protected witness. [For this reason] the court did not confront him with [the applicants].”

The applicants appealed against the judgment and maintained that there had been insufficient evidence that they had accepted the money. They argued that there had been no written warrant authorising the operation that had led to the proceedings against them; that the bank notes had not been marked; that they had not taken possession of any such bank notes; that the audio material had not established that they had accepted the bribe; and that the warning issued against the driver had been registered in the official records and had been prescribed for such offences. They further complained that their conviction had been based, to a decisive extent, on the driver’s statement and the audio material, the credibility of which they had challenged. As to the driver, they complained that it had been unreasonable to use him as a protected witness since they had already met him. They further complained that:

“The statement (of the driver) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused”.

In a public hearing held on 18 November 2008 in the presence of the applicants and their lawyers, the Štip Court of Appeal dismissed the appeal lodged by the applicants, finding no grounds to depart from the established facts and reasons given by the trial court. It found that the special investigating measures (audio-visual recording and the use of a protected witness) had been ordered by the public prosecutor in accordance with the Criminal Proceedings Act (see paragraphs 31 and 33 below). Accordingly, the judgment could be based on that evidence and the driver’s statement, as lawfully obtained evidence. The court further stated that:

“Having regard to the Court of Appeal’s judgment Кж.бр.474/06 of 28 June 2006, at the re-trial, the trial court summoned, and at a hearing (главен претрес) it examined the witness K.N., who was driving the car at the relevant time ... This witness was considered a protected witness by the court. On the basis of an agreement reached with the accused and their representatives, [the witness] was examined in their absence. However, after his examination, the court provided the accused and their representatives with the opportunity to put questions through the court.

... For the offence committed (by the driver), the accused neither drew up a report nor did they press charges against him, despite the fact that the offence was of a more serious nature ... they warned him orally, although a fine and a compulsory security measure - a driving ban - are prescribed for this offence.

The witness K.N. provides an objective and detailed description of the events ... Indeed, the MKD 500 bank note which the accused received from this witness had not been marked and secured as evidence, but the court undoubtedly established, on the basis of the statement of this witness, that he had offered - and (the applicants) had accepted - the money as a bribe. The statement of this witness is corroborated by the written transcript of the audio material ... so, the established facts are not put into question ...”

This judgment was served on the applicants on 15 and 19 December 2008 respectively.

II. RELEVANT DOMESTIC LAW

A. The position at the material time

Criminal Proceedings Act as amended on 22 October 2004 (“the Act”)

. Under section 42(2)(2) of the Act, as regards criminal offences subject to automatic prosecution by the State, the public prosecutor may order the use of a special investigative technique in pre-trial proceedings under the conditions and in the manner specified by law.

. Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspecting that certain criminal offences have been committed by an organised group. Secret surveillance, audio-visual recordings, a simulated offer of a bribe and the use of undercover agents (лица со прикриен идентитет) are among the special investigative techniques permitted (section 142-b(1) (3), (4) and (6)).

. Section 142-c provides that information, documents and objects obtained by means of special investigative measures may be used as evidence in criminal proceedings. The undercover agents can be examined as protected witnesses. Their identity is classified (службена тајна).

. Under section 142-d(3), the use of special investigative techniques at the pre-trial stage may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown.

. Under section 142-e(4) of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by the investigating judge or the public prosecutor or contrary to the Act.

. Under section 270-a of the Act, the public prosecutor, investigating judge or trial judge must take measures to ensure the effective protection of witnesses if there is a risk that they may be threatened or that their life, health or physical integrity may be endangered. Their protection must be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings. Protected witnesses are examined in the presence of the public prosecutor, the investigating judge or the trial judge, in a location which guarantees the protection of their identity, unless they agree to be examined using special streaming media, for which a court order is needed. An unsigned copy of the witness’s statement is forwarded to the accused and his or her representative, who can put questions in writing through the court.

. In accordance with section 339(1), the court decided on the basis of facts and evidence admitted at the trial.

. Under section 380(3) of the Act, the trial court was bound to take all procedural actions and to discuss all disputed issues indicated in the judgment of the second-instance court.

B. Subsequent developments

Criminal Proceedings Act, as amended in 2008 (Official Gazette no. 83/2008)

. Under section 270-b of the Act, special arrangements for the examination of a protected witness may involve concealment of his or her identity and face. If the arrangements concern the witness’s personal information, he or she may produce evidence under a pseudonym (псевдоним). Otherwise, the general rules for the examination of witnesses apply. A witness who is examined under a pseudonym may also have his or her face concealed (прикривање на изгледот) with the use of special streaming media, which distort one’s voice and face. The protected witness must be placed in a special room that is physically separated from the courtroom in which the investigating or trial judge, as well as other persons attending the examination, are present.

. Under section 339(3) of the Act, the judgment cannot be based solely on evidence given by a protected witness and obtained by means of witness protection.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

Relying on Article 6 of the Convention, the applicants alleged that the principle of equality of arms and of their defence rights regarding the examination of the driver had been breached. In this connection they complained that, unlike the public prosecutor, they had neither been present when the trial court had examined that witness nor had they been given the right to cross-examine him. They further complained that the driver had incited them to commit the offence by acting as an agent provocateur. Lastly, they complained that their conviction had been based on inadmissible evidence obtained by using special investigative techniques. The Court considers that these complaints should be analysed under Article 6 §§ 1 and 3 (d) of the Convention, the latter concerning particular aspects of the right to a fair trial guaranteed by Article 6 § 1, which, in so far as relevant, read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

...

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. Alleged violation of the applicant’s rights regarding the examination of the undercover witness

1. Admissibility

. The Government did not raise any objection as to the admissibility of this complaint.

. The Court notes that this complaint 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.

2. Merits

(a) The parties’ submissions

The applicants submitted that the driver had not been examined in a specially equipped room as required under the applicable rules. Consequently, the evidence produced by him was obtained unlawfully and could not serve as a basis for their conviction. They conceded that they had been given the opportunity, at the hearing of 1 April 2008, to put questions in writing to the protected witness. However, as noted in the court record of that date (see paragraph 21 above), the witness did not attend that hearing, so had the court forwarded the questions to the witness, the trial judge would have been unable to observe the witness’s demeanour. That would have contravened section 339 of the Act (see paragraph 37 above). Furthermore, the court failed to examine the driver’s two passengers who had been in the car on the day in question. Lastly, the trial court did not confront the applicants with the driver, notwithstanding the explicit instruction in the Court of Appeal’s judgment of 28 June 2006 in that respect (see paragraph 13 above), which had been binding for the trial court (see paragraph 38 above).

The Government submitted that it was not disputed that the driver, who had been examined at the trial as an undercover witness, was an agent employed in the Department for Control and Professional Standards within the Ministry of the Interior. He had been authorised by the public prosecutor to gather information that could not have been otherwise obtained. The concealment of his identity was justified in view of the respondent State’s struggle against organised crime. He was examined in a separate room only in the presence of the trial judge and the public prosecutor. At the time, there was no other means of preserving his anonymity; live streaming media capable of distorting the face and voice did not become available until later. However, the trial judge knew the identity of that witness; he observed his behaviour during the examination and drew conclusions about his reliability. The applicants also knew that he was an undercover police agent and, although his identity remained undisclosed, they recognised him by his physical appearance as a result of having met him at the material time.

. In any event, the applicants did not contest the need to protect the identity of the witness. As evident from the court record of 7 December 2007 (see paragraph 17 above), they did not object to being removed from the courtroom pending the examination of the driver, which implied that they knew that he would be examined under the rules applicable to protected witnesses. In addition, the fact that they refused to put questions to him was sufficient for the Court of Appeal to conclude that the applicants agreed to the way in which the undercover witness had been heard.

. The Government further submitted that examining the witness under the general rules for examination of witnesses would not have added anything to the process of establishing the facts. Furthermore, the applicants were not prevented from presenting their version of the events and stating their arguments concerning the witness’s testimony. Their conviction was based neither solely nor to a decisive extent on the evidence produced by that witness. That was confirmed by the domestic courts, which ruled on the basis of the principle of free assessment of evidence (правило на слободна оценка на доказите). They analysed the evidence produced by the undercover witness carefully and assessed its credibility in relation to other available evidence, in particular the audio material. Furthermore, the witness was warned about the legal consequences of false testimony.

(b) The Court’s consideration

The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Van Mechelen and Others v. the Netherlands, 23 April 1997, §§ 50 and 51, Reports of Judgments and Decisions 1997-III).

. The Court further observes that, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson v. the Netherlands, 26 March 1996, § 72, Reports 1996-II; and Van Mechelen and Others, cited above, § 54).

The Court notes that the present case concerns the examination of the driver under the special rules regarding protected witnesses and the subsequent use of that evidence against the applicants. Thus, it raises similar issues to those discussed in the Papadakis case (see Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, 26 February 2013).

. The driver was examined under section 270-a of the Act (see paragraph 36 above), which, alike the Papadakis case (see, ibid., § 89), involved two restrictive arrangements: (a) full protection of the driver’s identity; and (b) impossibility of the defence to attend his examination. The Court notes, for the reasons outlined in the Papadakis case, that despite the protection of the driver’s identity he was not to be regarded as anonymous within the meaning of its case-law (see Papadakis, cited above, § 90). The parties agreed that the applicants knew the driver, at least by his physical appearance (see paragraphs 25, 28 and 45 above).

. As to the first arrangement, the Court observes that the trial court, based on the information obtained from the Ministry (see paragraphs 15 and 27 above), decided to keep secret the driver’s identity. The Štip Court of Appeal, in its judgment upholding the applicants’ conviction, did not contradict the trial court’s findings regarding the necessity to protect the driver’s identity. Given the fact that the driver was an undercover police agent used to track corruption-related offences within the Ministry (see paragraph 45 above), the Court does not consider unreasonable that the driver’s name and function were withheld from the defence. The police authorities had a legitimate interest to protect the identity of their agent so that they could make use of him again in the future (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238; and Van Mechelen and Others, cited above, § 57).

. As to the second arrangement (see paragraph 51 above), the Court notes that according to the court record of 7 December 2007, before the trial court took the driver’s depositions, the applicants and their lawyers did not object to the driver being examined in their absence (see paragraph 17 above). There is no indication that they were unaware, at that moment, that their removal from the courtroom implied that the driver would be examined under the special rules for examination of protected witnesses. The Court of Appeal also found that the applicants had agreed to the examination of the driver under the special rules for protected witnesses (see paragraph 29 above).

. Notwithstanding the above, the Court found in the Papadakis case that the examination, under section 270-a of the Act, of an undercover witness whose evidence was decisive for the applicant’s conviction could not, as such, be considered a proper substitute for the opportunity for the defence to question the witness in their presence and make their own judgment as to his demeanour and reliability (see Papadakis, cited above, §§ 91, 92 and 97).

. The Court does not see any reason to depart from that finding in the present case. The driver was examined only in the presence of the trial judge and the prosecutor (see paragraphs 17 and 45 above). That he produced decisive evidence for the applicants’ conviction is supported by the Appeal Court’s judgment of 28 June 2006, which confirmed that the remaining available evidence had not been sufficient to prove their guilt (see paragraph 13 above). It was the driver’s statement that supported the audio evidence and without which the latter was devoid of any probative value. That was confirmed in the final judgment of the Štip Court of Appeal of 18 November 2008 (see paragraph 29 above).

The Court must therefore ascertain whether there were procedural safeguards to counterbalance the constraints with which the applicants were confronted in the exercise of their defence rights in relation to the driver’s examination (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 147, ECHR 2011; and Ellis and Simms v. the United Kingdom (dec.), no. 46099/06, § 78, 10 April 2012).

. In this connection the Court notes that after the trial court had conferred on the driver the status of a protected witness and examined him, with the applicants’ consent (see paragraph 53 above), under the special rules regarding such witnesses, it communicated a written transcript of his statement to the applicants and instructed them that they could put questions in writing through the court (see paragraph 21 above). That was in compliance with section 270-a of the Act, as valid at the time (see paragraph 36 above). The applicants conceded that they had been given such an opportunity (see paragraph 44 above). However, at the hearing on 9 May 2008, the applicants’ lawyer stated that he “decline(d) to examine the protected witness K.N.” (see paragraph 22 above). In the Court’s view, this statement contained an explicit and unqualified declaration by which the applicant’s lawyer refused to examine K.N.

Accordingly, they deprived themselves of the opportunity to verify the efficiency of the procedural safeguard provided for in section 270-a of the Act. The Court considers that the applicants were required to test the system of questioning the driver in writing, which was available to them and which might have permitted a fair and proper assessment of the reliability of the evidence produced by the driver. Given that the driver was not regarded as an anonymous witness, it cannot be assumed that the nature and scope of the questions they could have put would have been devoid of purpose (see, by converse implication, Kostovski v. the Netherlands, 20 November 1989, § 42, Series A no. 166).

. In the Court’s view, this issue of fact distinguishes the present case from the Papadakis case in which the Court found that the insufficient time given to the applicant to question the undercover witness in writing had placed him in a position where he had been effectively deprived of a real chance of challenging the reliability of the decisive evidence against him (see Papadakis, cited above, § 94).

. By refusing to question the driver in writing, the applicants also denied themselves the possibility of remedying the statutory inequality, an issue which they did not raise before the domestic courts, that the Act (section 270-a) had created by having provided that only the public prosecutor had the right to attend the examination of the driver.

. The Court therefore finds that there was no violation of Article 6 §§ 1 and 3 (d) of the Convention.

B. Other alleged violations of Article 6 of the Convention

. The applicants complained that the driver had instigated the offence for which they had been convicted by acting as an agent provocateur. They further alleged that their conviction had been based on inadmissible evidence obtained by means of special investigative measures.

The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the complaint concerning the applicants’ defence rights regarding the examination of the undercover witness admissible and the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

Done in English, and notified in writing on 12 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sicilianos is annexed to this judgment.

I.B.L.
S.N.

DISSENTING OPINION OF JUDGE SICILIANOS

I regret not to be in a position to vote with the majority in finding that there was no violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case. The crucial issue is whether the applicants had really consented to the examination of the driver in their absence and in the absence of their lawyers under the special rules for protected witnesses. In other words, the main point of the case is whether the applicants validly waived their right under Article 6 § 3 (d) of the Convention to challenge and question the key witness against them, as has been accepted by the majority.

In Pishchalnikov v. Russia (no. 7025/04, 24 September 2009), the Court summarised as follows its case-law as regards the waiving of entitlement to the guarantees of a fair trial, including the right of the accused to examine or have examined witnesses against him:

“77. In this respect the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu v. Turkey, no. 35811/97, § 53, 2 August 2005, and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89). A waiver of the right, once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003)”.

Turning to the present case, it transpires from the statement of facts that the applicants and their lawyer, Mr V.Š., consistently objected to the examination of the driver under the special rules for protected witnesses. According to our understanding of the facts, the strategy of the defence was to contest the application of those rules altogether and was aimed at excluding the driver’s testimony.

This approach is apparent from a series of elements. In a hearing held before the trial court on 5 October 2007 the applicants objected to the court’s examining the driver (see paragraph 16 of the judgment). Despite this objection, the trial court examined the driver on 7 December 2007 only in the presence of the judge and the public prosecutor, in order to protect his identity. The court record of that date mentioned that “[t]he accused and the[ir] lawyers did not object” (see paragraph 17). Referring to this affirmation, Mr V.Š. objected to the court record of 7 December 2007 “since it [was] contradictory and untrue” (see paragraph 22), and at the same time “declined” to examine the driver under the special rules on protected witnesses. Mr V.Š. maintained the same attitude in his concluding remarks before the trial court, when he denied that there was any material evidence against the applicants - thereby ignoring the testimony of the “protected witness”. He further stated as follows:

The same objection was reiterated by the applicants in their appeal. They complained that it had been unreasonable to use the driver as a protected witness since they had already met him. They further complained:

“The statement (of the driver) was taken in the absence of the accused and the defence... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused” (paragraph 28).

We do not see how these statements could be interpreted as “a knowing and intelligent relinquishment of a right”. In our view the above statements and objections of the applicants and their lawyer, before both the trial court and the Court of Appeal, denote a clear and consistent attitude opposing the examination of the key witness privately, in the absence of the accused and the defence, under a set of special rules on “protected witnesses”. The Štip Court of Appeal dismissed simpliciter the objections of the applicants and their lawyer. From the statement of facts (see paragraph 29) it does not appear that the procedure before the Court of Appeal offered sufficient “counterbalancing factors”, in the sense given to that term by the Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 147, ECHR 2011).