ASANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 27962/10 (Judgment : Article 6+6-3-d - Right to a fair trial : First Section) [2018] ECHR 116 (01 February 2018)

In the case of Asani v. the former Yugoslav Republic of Macedonia,

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

Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Krzysztof Wojtyczek,
Ksenija Turković,
Armen Harutyunyan,
Pauliine Koskelo,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 9 January 2018,

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

PROCEDURE

1. The case originated in an application (no. 27962/10) 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 Ramiz Asani and Mr Naim Asani ("the applicants"), on 6 May 2010.

2. The applicants were represented by Mr S. Pavleski, a lawyer practising in Skopje. The Macedonian Government ("the Government") were represented by their Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova.

3. The applicants alleged, in particular, that their conviction had been based on the testimony of anonymous and absent witnesses and that their defence rights had been unacceptably restricted, in breach of Article 6 §§ 1 and 3 (d) of the Convention.

4. On 27 August 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1979 and 1984. They are currently serving life sentences imposed in the impugned proceedings described below.

A. Background to the case

6. On 18 May 2006 at 11.45 p.m. several persons arrived by car in front of an Internet café in Skopje and opened fire with machine guns. According to an expert report admitted in the ensuing proceedings, around 70 bullets were fired towards the café. In the incident three children were killed and six people were seriously injured ("the victims").

B. Criminal proceedings against the applicants

7. Following a criminal complaint for murder lodged against unknown perpetrators, on 3 August 2006 the public prosecutor requested that an investigating judge question the victims and a certain B.H. who had allegedly been present at the scene at the time of the shooting.

8. Between 6 and 19 December 2006 the investigating judge heard oral evidence from the victims and other witnesses. None of them identified the applicants as the perpetrators. Some victims, as well as other witnesses who had arrived at the scene immediately after the shooting, stated that there had been no street lighting and that visibility had been considerably impaired. The investigating judge also heard oral evidence from M.M., who had sold the car used in the incident to two people whom he didn't know and "would not recognise if I (he) were to see them now". He stated that a certain F. had introduced him to the buyers.

9. During the investigation, there were several unsuccessful attempts by the investigating judge to summons B.H. Assistance from the police was also sought. Having been alerted to the summons and the police inquiry, B.H. appeared in court to testify before the investigating judge. On 27 February and 23 March 2007 he confirmed that he had been present at the scene at the time of the incident and that he had been shot in the upper leg. He had fainted and had spent time recovering in a private hospital outside the respondent State. He stated that there had been four people in the car and that all had fired on the café. He identified a certain Dz. as the driver of the car. He also alleged that he himself had been the most likely target of the attack owing to his alleged involvement in the killing of the applicants' brother, which had happened at the beginning of 2006. In that context, he had received threats that he would be killed.

10. On 4 May 2007 two people who had been eye-witnesses to the incident gave oral evidence in the presence of the investigating judge and the public prosecutor. They testified as anonymous witnesses (сведок со прикриен идентитет) under the pseudonyms "Korab" and "Vodno". The latter asked not to have his identity revealed for the following reasons:

"the people who committed the crime are violent and have a criminal record and that's why I'm afraid of their threats; they are armed, convicted, I fear for my life and the life of my family, I fear reprisals."

11. On photographs shown in evidence, both witnesses identified one of the applicants as having fired on the café and Dz. as the driver of the car. "Vodno" also identified the other applicant as having fired on the café. He stated that three people (including the applicants) had fired weapons in the incident of 18 May 2006.

12. On 11 May 2007 another individual was examined before the investigating judge and the public prosecutor under the pseudonym "Vardar" for the same reasons as the witness "Vodno". He confirmed that Mr Ramiz Asani (the applicant) had bought the car used in the accident from M.M. He also stated that after the incident Mr Ramiz Asani had told him the following:

"what you've seen and heard on television about the incident with M.M.'s car - I did it in revenge for the killing of my brother ..."

13. On the same date, the investigating judge opened an investigation against the applicants and Dz. on reasonable suspicion of murder. The applicants, who had in the meantime been arrested, were remanded in prison custody. On a later date the investigating judge suspended the investigation in respect of Dz. as he had proved to be untraceable.

14. In an indictment of 13 August 2007, the public prosecutor accused the applicants − who had no previous record, but had criminal proceedings in relation to other charges pending against them − of having fired machine guns at the Internet café with the intention of killing B.H. The prosecutor requested that the trial judge examine the victims and several witnesses − including B.H. and M.M., and the anonymous witnesses − and to admit other material evidence in evidence, including post-mortem reports and other expert reports.

15. At the trial, the applicants, represented by two lawyers, unsuccessfully requested that evidence produced by the anonymous witnesses be rejected and that the written transcripts of their depositions be excluded from the case file. The trial judge, however, granted their request for witnesses "Korab" and "Vodno" to be questioned at the trial. The examination was carried out at a hearing of 21 January 2008 in the presence of only the trial judge and the public prosecutor, as provided for in the Criminal Procedure Act in force at the time (see paragraph 24 below). Both witnesses repeated the statements they had given before the investigating judge and reiterated their fear of negative repercussions. Their statements were read out at the trial in the presence of the applicants. A written transcript of their depositions was communicated to the applicants who, at their request, obtained a ten-day grace period in which to prepare written questions to be put to these witnesses by the court. The applicants formulated seven questions to be put to each witness. Both witnesses replied, again in the presence of only the trial judge and the public prosecutor. "Korab" stated that only one person had fired, while according to "Vodno" three people had fired at the café. Both witnesses submitted that, despite the impaired visibility, there had been sufficient light to see the applicants. A transcript of their replies was communicated to the applicants.

16. The trial judge further examined M.M., who did not recognise Mr Ramiz Asani as the buyer of the car used in the incident. He also heard oral evidence from three of 25 witnesses proposed by the applicants regarding their whereabouts at the time when the crime was committed. All three witnesses corroborated the applicants' version of events, namely that they had been in another local café at that time.

17. Since the identity of witness "Vardar" had been disclosed in the proceedings (F.S.), the trial judge granted the applicants' request for him to be questioned again. At a hearing held on 1 April 2008 in the presence of the applicants, F.S. denied that he had testified as an anonymous witness. He denied that the applicants had bought the car from M.M. He alleged that he had been beaten by the police in order to tell the investigating judge that the applicants had bought the car (see paragraph 12 above).

18. At the same hearing, the trial judge read out B.H.'s pre-trial statement (see paragraph 9 above). The judge did so after having tried on several occasions to secure his attendance at the trial and having inquired with the police about his whereabouts. It was noted that, according to official notes in the case file, B.H. was untraceable. The record of the hearing did not specify that the applicants objected to the reading of the statement.

19. During the proceedings, the trial judge granted the applicants' request for a face-to-confrontation with the experts who had carried out the ballistic examination. He did not, however, allow an additional ballistic examination and refused to admit further evidence regarding the intensity of the street lighting at the scene at the relevant time (the applicants alleged that the street light had been too low to allow the anonymous witnesses to see the assailants). In their concluding remarks, the applicants claimed that B.H. was in the respondent State and had been involved in incidents relating to the parliamentary elections of 1 June 2008.

20. On 23 June 2008 the trial court delivered a judgment in which it found the applicants guilty of murder and sentenced them to life imprisonment. The applicants' presence at the scene when the incident happened, as well as the development and dynamics of events, was established on the basis of the testimony of the anonymous witnesses "Korab" and "Vodno", which the court regarded as credible and consistent despite "small differences which were due to the intensity of the shooting and fear for their lives". The court also gave weight to the statement given by F.S. in the pre-trial proceedings under the pseudonym "Vardar". It disregarded his statement of 1 April 2008 (see paragraph 17 above), finding that it had been given under duress and the threat that he or his family would be killed. In this connection it referred to a police report of 24 January 2008 according to which F.S. had been visited several times by unknown people who had threatened him and his family about the testimony given in the pre-trial proceedings. The motive for the crime was established on the basis of the statement given by B.H. in the pre-trial proceedings. That witness had not been examined at the trial since he had been untraceable. In that context, the trial court referred to an official note by the police of 9 January 2008 informing the court that B.H. had fled the respondent State and that an arrest warrant (потерница) had been issued against him. The court did not say anything regarding the applicants' allegations that B.H. had in fact been in the respondent State and could have been located (see paragraph 19 above). In the court's view, the evidence produced by the defence witnesses was unreliable and aimed at enabling the accused to avoid criminal responsibility. For this reason it considered it irrelevant to examine the remaining witnesses proposed by the defence. The applicants' defence that they had been at another location at the relevant time was found to be self-�serving.

21. In public hearings held on 10 October 2008 and 25 September 2009 (latter judgment served on the applicant on 5 January 2010) respectively, the Skopje Court of Appeal and the Supreme Court upheld the applicants' conviction and the sentence imposed on them. They dismissed appeals lodged by the applicants in which they complained inter alia that the trial court had failed to admit evidence proposed by the defence, that their conviction could not be based solely on the statements of the anonymous witnesses, which had been unlawfully obtained, and that the trial court had not examined B.H. notwithstanding their claims that he would have been available for examination. In this connection they argued that it had been an issue of public record that in the election incidents of 1 June 2008 B.H. had been wounded and hospitalised and later detained by the police.

22. The courts held that the evidence produced by the anonymous witnesses had been lawfully obtained and that the applicants' opportunity to put written questions to them had secured their defence rights. The fact that the witnesses had only produced evidence a year after the incident had been due to their fear. Furthermore, they stated that the applicants' conviction had not been based solely on the evidence produced by those witnesses. In this connection they found that the trial court had admitted other evidence, both documentary and verbal. As regards the evidence produced by B.H., the courts held that the trial court had tried to secure his attendance at the trial, but he had been unavailable for examination, as described in the police note. The higher courts also endorsed the trial court's finding regarding the applicants' motive for committing the crime, as established on the basis of the evidence produced by B.H. That had been confirmed by the pre-trial statement of witness F.S. given under pseudonym "Vardar" (see paragraph 12 above).

23. On 2 December 2010 Dz. was found and detained. In subsequent criminal proceedings, he was convicted of murder and sentenced to fifteen years' imprisonment.

II. RELEVANT DOMESTIC LAW

Criminal Proceedings Act, as amended on 22 October 2004 (Official Gazette no. 74/2004)

24. Under section 270-a of the Criminal Proceedings Act the public prosecutor, investigating judge or trial judge took measures to ensure the effective protection of witnesses if there was a risk that they could be threatened or that their life, health or physical integrity could be endangered. Their protection was to be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings. Such witnesses were examined in the presence of the public prosecutor, the investigating judge or the trial judge, in a location which guaranteed the protection of their identity, unless they agreed to be examined using special streaming media, for which a court order was needed. An unsigned copy of the witness's statement was forwarded to the accused and his or her representative, who could put questions in writing through the court.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

25. The applicants complained that their rights under Article 6 §§ 1 and 3 (d) had been breached as a result of the special arrangements regarding the questioning of the anonymous witnesses "Korab" and "Vodno" and the domestic courts' reliance on the pre-trial statement made by witness B.H. They also complained about the domestic courts' refusal to examine all the witnesses proposed by the defence, to order an additional expert examination, and to admit evidence regarding the allegedly inadequate street lighting at the relevant time and place. Article 6 §§ 1 and 3 (d) of the Convention, 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 ... 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

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

27. The Court notes that the application 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.

B. Merits

1. Examination of anonymous witnesses "Korab" and "Vodno" and admission of a pre-trial statement by witness B.H.

(a) The parties' submissions

28. The applicants reiterated their complaints that the examination of the anonymous witnesses "Korab" and "Vodno" and the domestic courts' reliance on untested witness statement by B.H. had breached their defence rights to an extent that was incompatible with the requirements of Article 6 §§ 1 and 3 (d) of the Convention.

29. The Government submitted that witnesses "Korab" and "Vodno", who had been eye-witnesses to the incident, had been heard under the special arrangements for the examination of anonymous witnesses specified under the Criminal Procedure Act in force at the time. When examined before the investigating judge and the public prosecutor, there had been no police or any other State official present to influence those witnesses. Both the investigating and trial judges had decided to keep secret their identity given the circumstances under which the crime had been perpetrated, the fact that the witnesses had known the applicants, the criminal background of the latter, and their violent nature, which, taken as a whole, justified the witnesses' fear towards the applicants. Furthermore, the risk that the applicants might influence those witnesses if their identity were disclosed was confirmed by the circumstances surrounding the examination of witness F.S. There was a strong presumption, confirmed by a police report (see paragraph 20 above) that he had changed his initial testimony given under the pseudonym "Vardar" following pressure from the applicants.

30. The Government further argued that the evidence produced by the anonymous witnesses had been clear and consistent and corroborated other admitted evidence. The defence had been able to contest those statements and their credibility. In this connection they had been given sufficient time to prepare questions to be put to them. The witnesses, again in the presence of the trial judge and the public prosecutor, had given detailed answers.

31. As regards witness evidence produced by B.H., the Government conceded that it had served as a basis on which the domestic courts had relied in order to determine the motive of the crime. However, it had not been the sole evidence in that regard. Furthermore, it had not been decisive for the applicants' conviction as there had been other evidence to corroborate their guilt. At the trial, the trial judge had made reasonable efforts to secure the attendance of B.H., which had been impossible for reasons not attributable to the court. The defence had not objected to the reading out of his pre-trial statement at the trial. That statement could have been tested by other witness evidence, in particular the evidence produced by the anonymous witnesses. Lastly, the defence had had ample opportunities to contest the veracity of that statement.

(b) The Court's assessment

32. The Court reiterates 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 Trampevski v. the former Yugoslav Republic of Macedonia, no. 4570/07, § 42, 10 July 2012).

33. It reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all the evidence against him must normally be produced in his presence at a public hearing for the purpose of adversarial argument (see Schatschaschwili v. Germany [GC], no. 9154/10, § 103, ECHR 2015). As the Grand Chamber indicated in Al-Khawaja and Tahery (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 127, ECHR 2011), while the problems raised by anonymous and absent witnesses are not identical, the two situations are not different in principle, since, (...), each results in a potential disadvantage for the defendant. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings.

34. In Al-Khawaja and Tahery (cited above, §§ 119-147), the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. Those principles may be summarised as follows (see also Horncastle and Others v. the United Kingdom, no. 4184/10, §§ 131-�135, 16 December 2014, and Seton v. the United Kingdom, no. 55287/10, § 58, 31 March 2016):

(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;

(ii) typical reasons for non-attendance are, as in the case of Al-�Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend a trial;

(iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;

(iv) the admission as evidence of the statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;

(v) according to the "sole or decisive rule", if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;

(vi) in this context, the word "decisive" should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;

(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;

(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.

35. Those principles have been further clarified in the case of Schatschaschwili (cited above, §§ 110-31) in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant's conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see also Seton v. the United Kingdom, no. 55287/10, § 59, 31 March 2016).

36. The Court has also held that precise limitations on the defence's ability to challenge a witness in proceedings differ in the two cases (anonymous and absent witnesses). Thus absent witnesses present the particular problem that their accounts cannot be subjected to searching examination by defence counsel. However, their identities are known to the defence, which is therefore able to identify or investigate any motives they may have for lying. In the case of a fully anonymous witness, where no details whatsoever are known as to the witness' identity or background, the defence faces the difficulty of being unable to put to the witness, and ultimately to the jury, any reasons which the witness may have for lying. However, in practice, some disclosure takes place which provides material for cross-�examination. The extent of the disclosure has an impact on the extent of the handicap under which the defence is labouring. It is unsurprising, given the underlying concern in both types of cases identified in Al-Khawaja and Tahery, that the Court has consistently taken a similar approach in the context of anonymous witnesses to that which it has followed in cases involving absent witnesses (see Ellis and Simms v. the United Kingdom (dec.), nos. 46099/06 and 46699/06, §§ 74 and 75, 10 April 2012).

37. Accordingly, it will be pertinent to examine the three steps of the Al-�Khawaja-test in assessing the overall fairness of the impugned proceedings (see Schatschaschwili, cited above, § 118). In assessing the fairness of the applicants' trial, the Court must examine, first, whether there were good reasons to keep secret the identity of the anonymous witnesses "Korab" and "Vodno" and for the non-attendance of witness B.H. at the trial. Secondly, the Court must consider whether the evidence of those witnesses was the sole or decisive basis of the conviction. Thirdly, whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, § 147 and Seton v. the United Kingdom, no. 55287/10, § 58, 31 March 2016).

(i) Alleged violation of the applicant's defence rights regarding the examination of the anonymous witnesses

(α) Whether there were good reasons justifying the protection of the witnesses' identity

38. The Court observes that the identity of both anonymous witnesses remained undisclosed to the defence, as their personal details and addresses were withheld from the applicants and their legal representatives. The witnesses produced evidence under the pseudonyms "Korab" and "Vodno". In such circumstances, the Court considers that they are to be regarded as anonymous within the meaning of the Court's case-law (see, conversely, Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, § 90, 26 February 2013, and Dončev and Burgov v. the former Yugoslav Republic of Macedonia, no. 30265/09, § 51, 12 June 2014).

39. Witness "Vodno" stated before the investigating judge that he had feared reprisals. Both witnesses gave a similar statement when examined by the trial judge (see paragraphs 10 and 15 above). All three levels of jurisdiction which decided the case relied on the witnesses' fear as grounds for preserving their anonymity. In this connection the Court recalls that any subjective fear by the witness, which needs not be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial, will not suffice and the courts must conduct appropriate enquiries to determine, firstly, whether or not there are objective grounds for that fear, and, secondly, whether those objective grounds are supported by evidence (see Al-Khawaja and Tahery, cited above, § 124). Whereas the Court cannot establish how the domestic courts assessed the reasonableness of the personal fear of the witnesses vis-à-vis the applicants, it is nevertheless satisfied, in view of the reasons advanced by the Government, which were not contested by the applicants, that the use of anonymous testimony could reasonably be considered justified in the particular circumstances of the case (see paragraph 29 above).

(β) Whether the evidence of the witnesses was the sole or decisive basis for the applicants' conviction

40. The Court observes that the prosecution relied on a range of documentary and witness evidence in order to persuade the trial court of the applicants' guilt (see paragraph 14 above). Apart from that evidence, the trial court admitted oral evidence from other witnesses and experts. Accordingly, the evidence produced by the anonymous witness was not the sole evidence. However, as to whether that evidence constituted a decisive basis for the applicants' conviction, the Court notes that both "Korab" and "Vodno" were the only eye-witnesses who had identified the applicants as the perpetrators of the crime. No other evidence admitted at the trial pointed directly to the applicants as the assailants. The trial court relied on this evidence in order to establish "the applicants' presence at the crime scene, the development and dynamics of events" (see paragraph 20 above). In such circumstances, it is clear that the evidence given by the anonymous witnesses was of great weight and without it the chances of the applicants' conviction would have been at least significantly reduced. Accordingly, the anonymous testimony of "Korab" and "Vodno" is to be regarded as decisive evidence in the present case.

(γ) Whether there were sufficient counterbalancing factors

41. The Court reiterates that the counterbalancing factors must permit a fair and proper assessment of the reliability of the evidence produced by anonymous witnesses (see Schatschaschwili, cited above, § 125).

42. In the present case, the anonymous witnesses were examined under the special examination arrangements in force at the time, which involved not only full protection of their anonymity, but also the exclusion of the defence from attending their examination, including the impossibility to benefit from using streaming media, which, in principle, was allowed under the applicable legislation (see paragraph 24 above, conversely, Pesukic v. Switzerland, no. 25088/07, § 51, 6 December 2012; Rozumecki v. Poland (dec.), no. 32605/11, § 64, 1 September 2015; and Kok v. the Netherlands (dec.), no. 43149/98, 4 July 2000). Indeed, the applicants and their lawyers were not present when these witnesses produced oral evidence before both the investigating judge (the applicants were not officially charged at that time) and the trial judge, unlike the public prosecutor, who attended both examinations. As to the possibility of putting written questions to the witnesses (after receiving the written transcript of their statement) indirectly through the court, in the case of Schatschaschwili the Court stated that such a possibility represented a significant safeguard offered to the defence regarding examination of an absent witness who cannot be questioned at the trial (ibid., § 219). However, regarding anonymous witnesses the Court has also found that the nature and scope of those questions were considerably restricted by reason of the trial court's decision that the anonymity of the witnesses should be preserved (see Kostovski v. the Netherlands, 20 November 1989, § 42, Series A no. 166). In the present case, the Court finds that the possibility offered to the applicants to put written questions to the anonymous witnesses cannot be regarded as a sufficient procedural safeguard to counterbalance the constraints with which they were confronted in the exercise of their defence rights.

(ii) Admission of the pre-trial statement of B.H.

(α) Whether there was good reason for non-attendance

43. The Court notes that B.H. was present at the scene and the prosecution sought his examination soon after the incident (see paragraph 7 above). B.H.'s testimony was collected at the pre-trial stage of the proceedings, in the presence of the investigating judge and the public prosecutor, before the applicants were officially charged. At the trial, the applicants requested a face-to-face confrontation with B.H. The trial judge sought to summons B.H. for examination, but his attempts were abortive. On 9 January 2008 the police notified the court that B.H. had fled the State and that an international arrest warrant had been issued against him. Relying on that information, the trial judge deemed B.H. to be untraceable and read out the transcript of his pre-trial testimony. Both the Skopje Court of Appeal and the Supreme Court accepted that the non-examination of B.H. had been justified (see paragraph 22 above).

44. The Court reiterates that situations where the witness has proved to be untraceable can, under certain conditions, constitute "good" reason why that witness could not attend trial. However, in order to use the evidence of such witnesses, the Contracting States are required to take positive steps to enable the accused to examine, or have examined, the witnesses testifying against him (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, § 67, ECHR 2001-�VIII and Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012); they must have actively searched for such witnesses (see Rachdad v. France, no. 71846/01, § 24, 13 November 2003). In order to establish whether or not the measures taken by the domestic authorities were sufficient, the Court needs to ascertain whether all reasonable efforts were made and whether the authorities were diligent in securing B.H.'s attendance at the trial (see Tseber v. the Czech Republic, no. 46203/08, § 48, 22 November 2012, and the references cited therein).

45. On the facts, the Court observes that the date of the trial court's decision to read out B.H.'s statement was 1 April 2008, which was nearly three months after the police had notified the trial court that B.H. was untraceable (see paragraphs 17, 18 and 20 above). There is nothing in the case file to suggest that any efforts were made during that time to locate B.H. and secure his attendance at the trial. More importantly, in the concluding remarks before the trial court, the applicants alleged that B.H. had been in the respondent State and in the hands of police in connection with the violent incidents that had marred the elections of 1 June 2008. Those allegations had been raised before the trial court pronounced its judgment. The trial court took no action to verify those allegations and provided no explanation as to their veracity. Similarly, neither the Skopje Court of Appeal nor the Supreme Court followed up the applicants' lead. Accordingly, the Court cannot but conclude that the domestic courts did not provide valid reasons for the non-attendance of B.H. at the trial.

46. The Court reiterates that while the absence of a good reason for the non-attendance of a witness cannot in itself be conclusive proof of the unfairness of a trial, it is a very important factor to be weighed in the balance when assessing the overall fairness of a trial and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (see Schatschaschwili, cited above, § 113, and Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 106, 10 November 2016).

(β) Whether the evidence was "sole or decisive"

47. In the present case the Court notes that in his pre-trial statement admitted at the trial, B.H. did not identify the applicants as the perpetrators, but submitted that he had been the target of the attack because of his alleged involvement in the earlier killing of the applicants' brother. The prosecution followed up that lead and indicted the applicants as having had the intention of killing B.H. in retaliation for the death of their brother (see paragraph 14 above). The trial court relied on B.H.'s statement to establish the motive for the crime (see paragraph 20 above). The higher courts and the Government all confirmed that and added that B.H.'s account regarding the alleged motive had been endorsed by witness F.S. (see paragraphs 22 and 31 above).

48. Accordingly, the Court is satisfied that the domestic courts established an important element as regards the applicants' criminal liability on the basis of the testimony in question. Although it was not the sole evidence in that respect and it was not of direct relevance, the fact remains that it carried significant weight since it provided indirect support of the applicants' guilt, and the admission thereof may have entailed a handicap for the defence.

(γ) Whether there were sufficient counterbalancing factors

49. The following elements were identified by the Grand Chamber in the case of Schatschaschwili as being relevant in this context: the trial court's approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine witnesses at the trial (see Schatschaschwili, cited above, § 145).

50. The Court notes that in the national court's judgments there is no indication that they approached the statement given by B.H. with any specific caution or that the fact that he was an absent witness prompted the national courts to attach less weight to his statement (see Paić v. Croatia, no. 47082/12, § 43, 29 March 2016).

51. The Court is aware that B.H.'s testimony was of a corroborative nature since it could not directly incriminate any of the applicants and that other evidence, as noted above (see paragraph 36 above), carried more weight in securing the applicants' conviction. However, given the handicaps under which the defence laboured regarding that evidence (see paragraph 38 above), its availability and strength cannot be regarded a sufficient counterbalancing factor.

52. Lastly, the Court observes that the applicants had the opportunity to give their own version of the events -� and to cast doubt on the credibility as a witness of B.H., whose identity was known to them. However, neither the applicants nor their lawyers had the opportunity at any stage of the proceedings to confront and question B.H. or to have him orally examined in their presence. The fact that B.H.'s depositions were taken in the presence and under the supervision of the investigating judge cannot in itself be regarded as a substitute for the applicants' right to examine him (see Tseber, cited above, § 62). Furthermore, the trial judge never examined B.H. and was not able to observe his demeanour in order to make his own assessment of the veracity of the account being given by him. The absence of an explicit objection by the applicants to the pre-trial statement of B.H. being read out at the trial court (see paragraph 18 above) cannot be interpreted as an unequivocal waiver on their part of the right to examine this witness. The applicants complained before both the Appeal Court and the Supreme Court that they had been unable to examine B.H. as a witness (see Rudnichenko v. Ukraine, no. 2775/07, § 108, 11 July 2013 and Gabrielyan, cited above, § 85). Lastly, the Court does not see how the defence could have relied on other witness evidence, in particular evidence produced by the anonymous witnesses, in order to test the credibility of B.H. (see paragraph 31 above).

(iii) Conclusion

53. In view of the foregoing, the Court concludes that in the circumstances of the case the constraints affecting the applicants' exercise of their defence rights with respect to anonymous witnesses and witness B.H. were irreconcilable with the fair trial guarantees. There was accordingly a violation of Article 6 §§ 1 and 3 (d) of the Convention.

2. Remaining complaints under Article 6 of the Convention

54. The applicants also complained about the domestic courts' refusal to admit further evidence proposed by the defence.

55. Having regard to the above findings, the Court declares the applicants' remaining complaints under Article 6 of the Convention admissible and considers that it is not necessary to rule on them (see Papadakis, cited above, § 96).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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

57. The applicants claimed 16,800 euros (EUR) in respect of pecuniary damage. This figure represented loss of income during their imprisonment. They also claimed EUR 16,000 in respect of non-pecuniary damage for the violation of their honour and reputation as a result of their conviction and imprisonment.

58. The Government contested the claim as unsubstantiated and excessive. They further submitted that there was no causal link between the damage claimed and the alleged violations.

59. The Court considers that the basis for an award of just satisfaction in the present case must be the violation of the applicants' defence rights under Article 6 of the Convention regarding the evidence given by the anonymous and absent witnesses. It further observes that the applicants' claims for just satisfaction under this head are related to their conviction and imprisonment and not to the alleged violation of their right to a fair trial (see, conversely, Iljazi v. the former Yugoslav Republic of Macedonia, no. 56539/08, § 50, 3 October 2013). The Court notes firstly that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6 §§ 1 and 3 (d) before the national courts (see Mežnarić v. Croatia, no. 71615/01, § 43, 15 July 2005). It cannot speculate as to what the outcome of the proceedings at issue would have been had the breach not occurred (see Bönisch v. Austria (Article 50), judgment of 2 June 1986, Series A no. 103, § 11). It therefore finds no causal link between the damage claimed and its finding of a violation of Article 6. Accordingly, the Court makes no award under this head (see Papadakis, cited above, § 111 and Trampevski, cited above, § 57).

B. Costs and expenses

60. The applicants did not make a claim under this head. Accordingly, the Court does not award any sum under this head.

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 in respect of the applicants' defence rights regarding the examination of the anonymous and absent witnesses;

3. Holds that there is no need to examine separately the applicants' other complaints under Article 6 of the Convention concerning the criminal proceedings against;

4. Dismisses the applicants' claim for just satisfaction.

Done in English, and notified in writing on 1 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> ASANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 27962/10 (Judgment : Article 6+6-3-d - Right to a fair trial : First Section) [2018] ECHR 116 (01 February 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/116.html Cite as: [2018] ECHR 116