European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF PAUNOSKI v. NORTH MACEDONIA

 

( Application no. 18669/08 )

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

6 June 2019

 

 

 

This judgment is final but it may be subject to editorial revision

In the case of Paunoski v. North Macedonia ,

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

Aleš Pejchal, President,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener , Deputy Section Registrar ,

Having deliberated in private on 14 May 2019 ,

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

PROCEDURE

1 .     The case originated in an application (no. 18669/08) against the Republic of North 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 /citizen of the Republic of North Macedonia , Mr   Ljuben Paunoski ("the applicant"), on 14 April 2008 .

2 .     The applicant was born in 1958 and lives in Skopje. He was represented before the Court by Mr V. Krčinski and Mr B. Krčinski, lawyers practising in Skopje. The Government of North Macedonia ("the Government") were represented by their former Agent, Mr K. Bogdanov, and then by their current Agent, Ms   D.   Djonova .

3 .     The applicant complained under Article 6 of the Convention that the criminal proceedings in which he had been convicted had been unfair and lengthy . In particular, he complained that he had not been able to cross - examine Z.S. , a witness, during the trial , and that the principle of equality of arms had been violated in that the domestic courts had refused to admit evidence proposed by the defence .

4 .     On 12 February 2016 the Government were informed of these complaints.

THE FACTS

I.     THE CIRCUMSTANCES OF THE CASE

A.     Background of the case

5 .     The present case concerns criminal proceedings against the applicant, who was Minister of Defence in the period between July 2000 and May   2001, and three other defendants (K.Gj . , V.T. and Lj.P.). The applicant and K.Gj . , who was undersecretary ( подсекретар ) in the Ministry of Defence ("the Ministry") at the time, were convicted of abuse of office ( злоупотреба на службена положба и овластување ) in relation to two procurement contracts (for food and construction services) concluded in December 2000 between the Ministry and HS ("the company") that had been owned at the time by Z.S. and his wife, M.S. In February 2001, the company was bought by Lj.P. and V.T. - the applicant ' s father-in-law and brother-in-law respectively. The latter contract concerned construction of army housing in a military base ( касарна ) in Skopje.

6 .     In spring 2001 an armed conflict broke out in the respondent State.

B .     Pre-trial proceedings

7 .     On an unspecified date in 2001, an investigating judge of the Skopje Court of First Instance ( Основен суд Скопје - "the trial court") opened an investigation in respect of the applicant, K.Gj., Lj.P. and V.T., because of a reasonable suspicion of abuse of office. S everal witnesses were examined and a forensic accounting report was commissioned .

8 .     On 11 June 2001 the investigating judge heard evidence from K.K., a Ministry official . He stated that K.Gj. had asked him to meet with Lj.P. to sign the construction contract and told him that the applicant had insisted on having the contract urgently signed. H e had met with Lj.P. , but an issue had ar i se n when, erroneously, a certain company called M. had been indicated as the supplier . At that point Lj.P. had called the applicant and told him "this [had] not [been] our company, ours [had been the company HS ] ".

9 .     On 18 June 2001 the investigating judge heard evidence from the applicant, who denied the charges against him.

10 .     On 26 October 2001 the investigating judge heard evidence from Z.S. solely in the presence of the public prosecutor. He denied any personal acquaintance with the applicant and stated that Lj.P. had asked him to make a bid to supply food to the Ministry . He further affirmed that V.T. had signed the contracts on behalf of the company , although he had not authorised him to represent the company. After Z.S. had found out about the bank transfers from the Ministry , Lj.P. and V.T. had threatened that he would sell the company to them .

11 .     On 23 November 2001 the public prosecutor lodged a bill of indictment with the trial court against the four defendants. T he applicant and K.Gj. were indicted on charges of abuse of office and Lj.P. and V.T. were charged with incit ing them to commit the offence. The applicant was also charged with ordering K.Gj. to conclude the two public- procurement contracts on behalf of the Ministry with the company , contrary to the procedure provided by the Public Procurement Act ( Закон за јавни набавки , Official Gazette no.26/98). The prosecutor proposed that certain evidence be admitted at trial, and requested that the court summon witnesses, including Z.S.

12 .     On 11 March 2002 a three-judge panel of the trial court confirmed the indictment dismissing the defendants ' objections as unfounded.

C.     Proceedings before the domestic courts

1.     First round of examination

13 .     All four defendants gave oral statements at the trial. The applicant gave his statement at the trial hearing held on 13 June 2003. Throughout these proceedings he maintained his innocence . The applicant denied any involvement in the procurement process regarding the two contracts and challenged K.Gj. ' s allegations as untrue (see paragraph 14 below). He maintained that the procurement process had been conducted through the Ministry ' s administration ( стручни служби ) and the undersecretary , that he had not been informed of the details of individual contracts and that the two contracts had been lawfully concluded. He insisted that had been unaware that his relatives had owned the company.

14 .     His co-defendant, K.Gj., asserted that he had informed the applicant of the public-procurement decisions and acted on his orders. He affirmed that on the applicant ' s orders the construction contract that had been initially signed with the company M. had been invalidated and a new contract had been signed with company HS . Throughout the proceedings, K.Gj. maintained that the two contracts had been concluded in accordance with the law as they had been exempt from the regular process under the Public Procurement Act for the following reasons: the food contract had concerned urgent procurement ; and the construction contract had concerned issues of security and defence.

15 .     The other two co-defendants , V.T. and Lj.P. , maintained that the takeover of the company had been mutually agreed. V.T. asserted that he had signed the two contracts on Z.S. ' s instructions and with proper authorisation. Lj.P. claimed that he had intended to fulfil all contractual obligations, but the construction had been stalled owing to the breakout of armed conflict.

16 .     At a hearing held on 11 September 2003 the trial court, despite the objections of the defence, read out Z.S. ' s pre-trial statement (see paragraph 10 above) since police enquiries had confirmed that he had left the country for the United States. At the same hearing, the court heard evidence from other witnesses, including M.S. , who maintained that neither she, nor her husband had authorised V.T. to sign contracts on behalf of the company . She confirmed that her husband had asked her to sign the documents for the takeover of the company and that he had been scared. V.M. ( M. ' s owner ) also testified , confirming that the Ministry had withdr a w n from the construction contract that had been initially signed with his company .

17 .     On 3 November 2003 the trial court convicted the defendants as charged , except Lj.P. , the proceedings against whom had been separated . On 2 March 2004 t his judgment had been quashed by the Skopje Court of Appeal ( Апелационен суд Скопје - "the Court of Appeal") which gave detailed instructions to the trial court. It noted that the trial court had not made sufficient efforts to hear evidence from Z.S., whose testimony was considered as key evidence ( клучен доказ ). His examination was considered relevant in the context of V.T. ' s role in the case and the use of the funds transferred by the Ministry to the company. T he trial court also need ed to examine those Ministry officials that had participated in the procurement procedure regarding the contracts in order to establish whether the defence arguments regarding the lawfulness of the contracts were valid. Lastly , all relevant facts needed to be established regarding the execution of the two contracts, including the existence of any objective difficulties in this regard .

2.     Second round of examination

18 .     In the re-trial proceedings, the trial court commissioned an addendum to the forensic accounting report and an additional expert report regarding the construction contract. The first hearing i n the re-trial proceedings was held on 13 September 2005. In the course of the proceedings, the trial court held numerous hearings, examined a number of witnesses and admitted other documents and expert evidence (see paragraph 20 below) . It joined the case against Lj.P . to the applicant ' s case. The court heard evidence from th e Ministry officials who had participated in the construction services and food procurement and examined K.K. , who maintained his earlier statements (see paragraph 8 above). Several hearings were postponed on account of health reasons in respect of some of the defendants.

19 .     At the hearing held on 27 April 2006 the trial court admitted the written record of Z.S. ' s pre-trial statement as evidence on basis of section   351(2) of the Criminal Procedure Act (see paragraph 29 below) since securing his attendance at the trial would ha ve been extremely difficult and might have prolong ed the proceedings , given that repeated police enquiries had confirmed his residence in the United States . Moreover , sufficient evidence had been adduced regarding the facts that needed to be established from his testimony. The defence objected to his statement and argued that his presence was required in order to establish all relevant facts, particularly regarding V.T. ' s authorisation to represent the company and Z.S. ' s alleged use of company funds . The y argued that Z.S. ' s address abroad had been known and the trial court could have summoned him through diplomatic channels .

20 .     At the same hearing, the court admitted documentary evidence , including: financial and other documents related to the company ; official documents from the Ministry related to the procurement process and the two contracts ; and several letters from the Ministry sent in reply to enquiries made by the trial court . The defence challenged the veracity of the letters and applied to have the signatories examined at the trial . The y proposed that further documentary evidence be taken into evidence , including the full case file from the Ministry regarding the contracts. T hese proposals were rejected as the trial court found no reason to doubt the veracity of the letters and considered that all relevant documents had already been submitted and any further requests were aimed only at prolonging the trial .

21 .     At the hearings held on 10 and 17 November 2006 the defence reiterated the ir request to examine the signatories of the letters (see paragraph 20 above) and some other witnesses and proposed as evidence written material (including army reports and documents , government transcripts and media articles related to the armed conflict ) in order that the court establish the relevant facts in respect of the circumstances related to the procurement process, the execution of the contracts , the influence of the deteriorating security situation and Z.S. ' s role in the company ' s affairs. The trial court refused to admit the request , finding that sufficient evidence had already been adduced regarding the relevant facts that were to be established from the proposed evidence.

22 .     On 29 December 2006 the trial court convicted the defendants as charge d and ordered them to compensate jointly the Ministry for the damage caused . The applicant was sentenced to three years and six months ' imprisonment. Relying on a considerable amount of evidence, including the testimony of Ministry officials who had participated in the two contracts and other witnesses , written material related to the procurement, two expert reports and the statements of the two experts at the trial, the trial court concluded the two contracts had not been awarded in a process compliant with the rules of public procurement. It was established that t he food contract could not be considered as urgent procurement . As to the construction contract, the court found that there had been neither a legal framework governing the construction of military housing on the site of the base , nor a clear decision or plan for th e particular location , which suggested that the defendants ' choice of location had been aimed at circumventing the public- procurement rules . The company had not been officially registered for construction activity at the time of award of the contracts, only subsequently. The trial court also found that any reasons related to the inability to execute the contracts had been irrelevant.

23 .     T he t rial court dismissed the applicant ' s defence, relying on the statements of K.Gj. and K.K., who confirmed his involvement with the impugned contracts (see paragraphs 8 and 14 above) . A written order signed by the applicant requiring that all procurement w as to be executed according to the plan and that he should be notified of the process was considered as a further confirmation of his involvement . Referring to Z.S. ' s statement, the trial court dismissed V.T. and Lj.P. ' s defence , holding that his and M.S. ' s statements had proven that these two defendants had taken over the company with threats , as part of their plan to obtain unlawful pecuniary gain (see paragraphs 10 and 16 above) .

24 .     As to the refused evidence, it reiterated the reasons given at the trial hearings (see paragraphs 20 and 21 above) . Z.S. ' s statement had been admitted into evidence because it would be difficult to secure his presence at the trial as he resided at an address in California in the United States of America .

3 .     Proceedings before the Court of Appeal and the Supreme Court

25 .     The applicant appealed, arguing, inter alia , that the trial court had dismissed all his applications to introduce evidence (see paragraphs 20 and   21 above) which aimed to prove : (i) that the deteriorating security situation had justified the urgent food procurement and impeded the execution of the construction contract ; (ii) that any construction in the military base had f a ll en under the "security" exception of the public - procurement rules . The trial court had also failed to secure the presence of Z.S. at the trial, despite the Court of Appeal ' s instructions , and had refused evidence to disprove his testimony.

26 .     On 18 and 19 September 2007 the Court of Appeal held a public hearing at which it dismissed the defendants ' appeals. It found that all relevant facts had been correctly established and that the trial court had complied with its instructions. It considered that the refused evidence, which had most ly concerned the inability to execute the construction contract, had be en irrelevant for the case. The court referred to the statements of Z.S. and M.S. in the context of the use of their company in the impugned procurement process by V.T. and Lj.P., without commenting on Z.S. ' s absence from the trial.

27 .     The applicant lodged an appli cation for extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда ) reiterating his complaints (see paragraph 25 above) .

28 .     On 20 May 2008 the Supreme Court upheld the lower courts ' judgments and the ir findings regarding t he lawfulness of the contracts . It found, inter alia , that the deteriorating security situation had not affected to the events in question. It further found that the trial court had admitted into the file evidence proposed by both the prosecution and the defence that had been necessary for establishing the relevant facts. The refusal to admit further evidence had not violated the defendants ' right to defence, nor had it affected the lawful and correct adjudication of the case.

II.     RELEVANT DOMESTIC LAW

29 .     In accordance with section 351(1) of the of the Criminal Procedure Act - consolidated version ( Закон за кривичната постапка - пречистен текст , Official Gazette no.15/2005), as in force at the material time, if a fact was to be established on the basis of a personal observation by an individual, the latter had to be examined at a hearing. E xamination could not be replaced by a reading of a statement by that person. Section 351(2) of the Act provide d that an adjudicating panel c ould decide to read out a transcript of a witness statement if the person concerned ha d died or wa s mentally ill, or c ould not be found, or his or her attendance c ould not be secured or wa s considerably impaired owing to age, illness or any other important reasons. Section 351(3) of the Act provide d that the panel could decide, after consulting the parties, to read out the statement of a witness or expert who wa s not present at the hearing, irrespective of whether they ha d been summonsed to the hearing.

THE LAW

I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

30 .     The applicant complained that the criminal charges against him had not been determined within a reasonable time and that he had not had a fair hearing in the criminal proceedings against him. In particular, he alleged a violation of the principle of equality of arms since the domestic courts had refused to examine some witnesses and admit documentary evidence relevant to his case . He also complained of the refusal of the domestic courts to examine Z.S. at the trial. The applicant relied on Article 6 §§ 1 and   3 (d) of the Convention, which, in so far as relevant, reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time 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.     Length of the proceedings

1.     Admissibility

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

32 .     I n view of the fact that the criminal proceedings in the present case ended with the Supreme Court ' s judgment of 20 May 2008, the Court finds that the applicant was not required to use the length remedy before the Supreme Court, which has been considered as an effective remedy only after the improvements noted in the Adži-Spirkoska and O thers case were made (see Adži-Spirkoska and others v. the former Yugoslav Republic of Macedonia (dec.), nos. 38914/05and 17879/05, 3 November 2011) .

33 .     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

34 .     The applicant reiterated that the criminal proceedings brought against him had been unduly long.

35 .     The Government admitted that the total length of the proceedings had been longer than average, but they argued that the case had been complex, had involved several defendants and that the domestic courts had conducted the proceedings expediti ously . The defence had contributed to the prolongation of the proceedings because of the frequent requests for adjournments on account of health reasons of the co-accused.

(b)     The Court ' s consideration

36 .     In view of the principles developed in its case-law (see Svinarenko and Slyadnev v. Russia [GC], nos. 325 41/08and 43441/08, § 142, ECHR   2014 (extracts ) , and Yankov and Others v. Bulgaria , no. 4570/05, § §   21 - 23, 23 September 2010) the Court finds that the period to be taken into consideration, for the purposes of Article 6 § 1, started to run on 18   June 2001 , when the applicant was heard by the investigating judge for the first time (see paragraph 9 above) , and ended on 20 May 2008, when the Supreme Court dismissed the applicant ' s application for extraordinary review of the final judgment. The proceedings therefore lasted six years and eleven months at three levels of jurisdiction.

37 .     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, and the conduct of the applicant and the relevant authorities (see, for example , Eftimov v. the former Yugoslav Republic of Macedonia , no.   59974/08 , §   30, 2 Ju ly 2015).

38 .     The Court observes that the case was of some complexity , given the need to examine defendants, voluminous documentary evidence and witnesses. Furthermore, it notes that the bill of indictment against the applicant was lodged on 23 November 2001 and confirmed by a three-judge panel of the trial court on 11 March 2002. From the available material, it can be established that it took a year and three months to start with the first hearing after the indictment had been upheld (see paragraphs 12 and 13 above) . The Court notes that another delay in the proceedings occurred after the quashing of the first-instance judgment by the Court of Appeal on 2   March 2004 . It observes that it took a year and six months to schedule the first hearing in the re-trial proceedings , a period which also included the preparation of two expert reports (see paragraphs 17 and 18 above). Moreover, several hearings were postponed on account of the applicant ' s or a co-defendant ' s health. The State cannot be held responsible for that delay.

39 .     The Court finds that there were two significant periods of inactivity in the course of the proceedings which were imputable to the authorities (see paragraph 38 above) . While taking into account the complexity of the case and the fact that there were some delays which were not attributable to the State , the Court reiterates that the State remains responsible for the efficiency of its system, and the manner in which it provides for mechanisms to comply with the "reasonable time" requirement. It thus finds that the length of the criminal proceedings against the applicant failed to meet the "reasonable time" requirement (see , mutatis mutandis , Petreska v.   the former Yugoslav Republic of Macedonia , no. 16912/08 , § §   24 -25 , 21   July 2016 ) .

40 .     There has, therefore, been a violation of Article 6 § 1 of the Convention.

B .     Fairness of the proceedings

1.     The parties ' arguments

41 .     The Government submitted that the criminal proceedings against the applicant had been fair. As to the refused evidence, they asserted that the domestic courts had provided sufficient reasons for their decision , which had fallen within their margin of appreciation, in accord ance with the Court ' s case-law. Moreover, the refused evidence could not be considered decisive for the outcome of the case. As to Z.S. ' s absence from the trial, the Government argued that it had been objectively difficult to secure his presence given that he had resided abroad, and further efforts would only have prolonged the proceedings. In any event, Z.S. ' s statement had not been crucial for the applicant ' s conviction since he had not implicated the applicant and the domestic courts had based his conviction on other evidence. Furthermore, some important aspects of his statement had been corroborated by his wife, M.S., who had been examined at the trial. They noted that no alternative method of questioning the witness had been possible or requested by the applicant.

42 .     The applicant maintained that the domestic courts had refused to admit considerable amount s of evidence proposed by the defence (see paragraphs 20 and 21 above) which had resulted in a breach of the principle of equality of arms . He further complained that although Z.S. ' s pre-trial statement had been admitted into evidence and relied on by the court, he had not ha d an opportunity to cross- examine this witness , whose testimony he considered to have be en key evidence . The applicant argued that Z.S. ' s testimony had been untrue and this witness had left the country after appropriating funds from the company .

2.     The Court ' s assessment

(a)     General principles

43 .     T he Court will examine the complaints under Article 6 §§ 1 and 3 taken together (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia , no. 26711/07and 2 others, § 70, 1 2 May 2016). It reiterates that the principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention which requires a "fair balance" between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see Stoimenov v. the former Yugoslav Republic of Macedonia , no. 17995/02, §   41, 5 April 2007 , and Duško Ivanovski v. the former Yugoslav Republic of Macedonia , no. 10718/05, § 45, 24 April 2014 ).

44 .     The relevant principles developed in the Court ' s case-law on the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness who had not been present and questioned at the trial were used as evidence are set out in the cases of Al - Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05and   22228/06, § § 119 -147 , ECHR 2011) , and Schatschaschwili v.   Germany ([GC], no. 9154/10, § § 111-131 , ECHR 2015). These principles were also applied in the case of Seton v. the United Kingdom ( no. 55287/10 , §§ 61 - 70, 31   March 2016 ).

(b)     Application of these principles to the present case

(i)     As regards evidence from absent witness Z.S.

45 .     At the outset the Court notes that Z.S. was proposed as witness by the prosecut or (see paragraph 11 above) . In view of this fact t he Court considers that the principles established in its case-law regarding the inability to examine a "prosecution witness" at the trial (see Schatschaschwili i , and Al-Khawaja and Tahery, both cited above) apply to the facts of the present case and the applicant ' s complaint concerning his inability to cross-examine this witness at the trial and the admission of his pre-trial statement in evidence .

46 .     The Court notes that Z.S. did not attend the trial because the police enquiries ordered by the trial court had indicated that the witness had resid ed in the United States. T he trial court considered that securing his attendance at the trial would have prolonged the proceedings and had been difficult . It decided to read out his pre-trial statement (see paragraphs 16 and   19 above) , without making any efforts, through the instruments of international legal assistance, to summon this witness to the trial (see Paić v. Croatia , no. 47082/12 , § 38, 29 March 2016 , and contrast Lučić v.   Croatia , no. 5699/11 , § 80, 27 February 2014 ). T he domestic courts gave no reasons as to why the mechanisms of international legal assistance would have been unavailable in the particular case, and the Government did not offer a convincing explanation in this regard . In such circumstances , the Court is not persuaded that "all reasonable efforts" can be said to have been made to secure Z.S. ' s attendance at the trial . Accordingly, it concludes that no good reason was convincingly shown for his absence . However, the absence of a good reason is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes an important factor to be weighed in the overall balance together with the other relevant considerations (see Schatschaschwili, cited above, § 113).

47 .     Moving on to the second stage of the test in Al-Khawaja and Tahery , the Court notes that there is little or nothing in the case file to support a finding that evidence produced by Z.S. could be described as "determinative of the outcome of the case" in respect of the applicant . The Court observes that Z.S., who owned the company at the time of the award of the contracts, denied any acquaintance with the applicant and his statement primarily concerned his relations with the other two defendants, V.T. and Lj.P. (see paragraph 10 above). The domestic courts relied on his testimony mainly to establish facts relevant for the conviction of those defendants, particularly regarding the manner in which they had used the company to obtain unlawful pecuniary gain from the Ministry (see paragraph 23 and 26 above). T he applicant ' s involvement and undue influence in the Ministry 's procurement process was established on basis of the statements of his co - accused, K.Gj. and a witness, K.K. His defence that the two contracts had been concluded in a process compliant with the applicable rules of public procurement was rebutted on the basis of other evidence and not Z.S. ' s testimony, specifically : the testimony of several witnesses who were all involved in the Ministry ' s procurement process and the two contracts; expert evidence; the relevant documents from the Ministry and other documentary evidence (see paragraph 22 above). In view of the above-mentioned considerations the Court ' s conclusion is that the evidence of the absent witness, Z.S., could not be said to have be en "sole or decisive" for the applicant ' s conviction .

48 .     However, as was explained in Schatschaschwili (cited above, § 116), even though this absent-witness evidence was not the sole or decisive basis for the applicant ' s conviction, the Court will determine whether there existed sufficient factors counterbalancing any handicaps that t h e admission of that evidence might have entailed for the defence (see Seton , cited above, §   64).

49 .     In this connection , the Court observes that, the applicant was able to state his own account of the facts and to point to any incoherence in the statements of witnesses heard at the trial or to disclose any inconsistency of the residual evidence referred to by the domestic courts (see , in this regard , Aigner v. Austria , no. 28328/03, § 43, 10 May 2012 ) . Since t he identity of the absent witness was known to the applicant , he was able to identify and investigate any motives the witness may have had for lying, and was able therefore to contest the witness ' s credibility (see Tseber v. the Czech Republic , no. 46203/08 , § 63, 22 November 2012 ; Garofolo v. Switzerland (dec.), no. 4380/09 , § 56, 2 April 2013 ; and Sică v. Romania , no.   12036/05, §   73, 9 July 2013 ) . Furthermore, the Court cannot overlook the availability of corroborative evidence supporting the absent- witness statement (see paragraph 16 above) presented in the applicant ' s presence at the trial (see Schatschaschwili, cited above, § 128, with further references ) .

50 .     Having regard to the limited value of Z.S. ' s testimony for the applicant ' s conviction and the existence of other incriminating evidence, it cannot be said that the criminal proceedings were rendered unfair by the admission in evidence of Z.S. ' s pre-trial statement.

51 .     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.

(ii)     As regards the refused evidence

52 .     The Court reiterates that it is for domestic courts to decide what evidence is relevant to criminal proceedings and thus to exclude evidence which is considered to be irrelevant (see Khodorkovskiy and Lebedev v.   Russia , nos. 11082/06and 13772/05, § 725, 25 July 2013 ). The same is true of witnesses. Article 6   §   3   (d) does not guarantee the accused an unlimited right to secure the appearance of witnesses in court: it is for the domestic courts to decide whether it is appropriate to call a witness (see Fruni v.   Slovakia , no. 8014/07, § 126, 21 June 2011). However, it remains the Court ' s task to ascertain whether the way in which evidence was taken was fair (see, for example , Perna v. Italy [GC], no. 48898/99, §   29, ECHR   2003 - V ) .

53 .     To that end, the Court firstly notes that the trial court gave reasons why it had refused to hear witnesses and admit written material proposed by the defence (see paragraphs 20 , 21 and 24 above). B oth the Court of Appeal and the Supreme Court dismissed the applicant ' s arguments in this regard, noting that the refused evidence related to facts irrelevant to the case and that the applicant ' s defence rights had not been prejudiced on this account (see paragraph s 26 and 28 above).

54 .     The Court sees no reason to hold otherwise and concludes that the refusal of the domestic court s to admit the proposed evidence did not restrict the applicant ' s defence rights to an extent that he was not afforded a fair trial within the meaning of Article 6 §§   1 and 3(d) of the Convention.

55 .     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.

C.     Other alleged violations of Article 6 of the Convention

56 .     The applicant , relying on Article 6 §§   1, 2 and 3 (b) and (c) of the Convention, further complained of lack of impartiality of the trial judge, lack of reasoning, errors of facts and law in the assessment of evidence and lack of adequate time and facilities to prepare the defence. He also alleged a violation of the presumption of innocence.

57 .     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 the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II .     APPLICATION OF ARTICLE 41 OF THE CONVENTION

58 .     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

59 .     The applicant claimed, in respect of pecuniary damage, 250,000   euros (EUR) for loss of income. He also claimed, in respect of non - pecuniary damage, EUR 400,000 for him , and EUR 200,000 for his wife , for the psychological stress suffered.

60 .     The Government contested these claims as excessive and unfounded.

61 .     The Court does not discern any causal link between the violation found and the pecuniary damage alleged , it therefore rejects this claim. On the other hand, it considers that some non-pecuniary damage must have been suffered by the applicant, and awards him EUR 900 under this head, plus any tax that may be chargeable. It rejects the remainder of the claim .

B.     Costs and expenses

62 .     The applicant also claimed EUR 3,628 for the costs and expenses incurred before the domestic courts and EUR 2,250 for those incurred before the Court. In support he submitted itemised lists of costs, invoices and contracts for representation by his lawyer.

63 .     The Government contested these claims as excessive.

64 .     Having regard to its case-law, t he Court finds that the costs and expenses claimed in respect of the proceedings before the domestic courts were not incurred with a view to preventing or rectifying the violation found or providing the applicant with redress; it therefore rejects the applicant ' s claim under this head (see Petreska , cited above , § 40). As regards the costs and expenses claimed in respect of the proceedings before the Court, it finds, regard being had to the documents in its possession and the above criteria, the amount claimed to be excessive, and awards instead the sum of EUR   800, plus any tax that may be chargeable to the applicant.

C.     Default interest

65 .     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 complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings admissible, and the remainder of the application inadmissible;

 

2 .     Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings;

 

3 .     Holds

(a)     that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)     EUR   900 ( nine hundred euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)     EUR   800 ( eight hundred euros) , plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 6 June 2019 , pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

              Renata Degener Aleš Pejchal
Deputy Registrar President