THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67128/01 
by Richard Owen HUDSON 
against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 10 January 2002 as a Chamber composed of

Mr G. Ress, President
 Mr L. Caflisch
 Mr P. Kūris
 Mr R. Türmen
 Mr J. Hedigan
 Mrs M. Tsatsa-Nikolovska
 Mrs H.S. Greve, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 6 September 2000 and registered on 16 March 2001,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Richard Owen Hudson, is a British national, born in 1955 and living in Derby, United Kingdom. He is represented before the Court by Mr S. Jackobi, a lawyer practising in the United Kingdom.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a driver of one of the lorries that transported oil for the needs of NATO from Greece to the Former Yugoslav Republic of Macedonia. He was involved in a car accident that happened on 26 July 1999, around 9.30 p.m., in which two persons lost their lives and three other were injured.

On the same day, the applicant was apprehended by the police, but he was not told the reasons for his arrest. His passport was taken away. He was taken to a police station on 27 July 1999 at about 1 a.m.

On 27 July 1999 the investigating judge carried out an inspection on the site of the accident. The report stated, inter alia, the following:

“...

At 23.15 the investigating judge on duty together with the district public prosecutor went to the spot [of the accident].

GENERAL CONDITIONS

The inspection was carried out at night, with no visibility and under dry and windy weather conditions. The traffic accident had happened about 10.00 p.m. under the same weather conditions

...

There are road markers on both sides of the road. The road has a horizontal sign - a full white line...

...”

The rapport goes on to describe all the traces made on the road by the car, the position where broken glass and different parts of the car were found, and the damage of the vehicles involved in the car accident.

The investigating judge ordered that an expert report on civil engineering be prepared, photos be taken of the location of the accident and the applicant’s blood be tested for possible presence of alcohol. She also took away the tachograph tape of the applicant’s vehicle.

The applicant appointed a local lawyer on the recommendation of the British Consul. The applicant and his lawyer were present at the hearing of 27 July 1999 before the investigating judge. The minutes of the hearing, submitted by the applicant, stated as follows:

“Due to the fact that the defendant is a foreign citizen and does not speak Macedonian, an authorised court interpreter, Petkova Projka from Gevgelija, is present at the questioning.

He was informed of the [Public Prosecutor’s] Request to Open Investigation Proceedings with proposal that the applicant be put in detention...dated 27.7.1999 on reasonable suspicion that he has committed a criminal offence of having endangered traffic safety within the meaning of Article 300 § 4 in connection with Article 297 § 3 of the Penal Code.

The court interpreter was replaced before the applicant had been informed of the [prosecutor’s] request. Kristina Prenda [the second interpreter] from Gevgelija was engaged as a sworn court interpreter of the Gevgelija Trial Court.

After the applicant had been informed of the Request submitted by the prosecution [and] translated by Kristina Prenda - the interpreter...the defendant stated that he had understood the Request to Open Investigation Proceedings with the proposal that the applicant be put in detention pending trial.

In accordance with Articles 3, 63 and 210 of the Code of Criminal Procedure [the applicant was informed] that he was entitled to remain silent, that he had the right to defend himself in any way he perceived best, or not to present his defence and not to answer questions, that he could call evidence and could appoint a legal representative, and, indeed, he appointed Saso Dukovski from Skopje as his legal representative...

The defendant stated that he would remain silent, but that he would give his defence later in view of the fact that he felt depressed due to the accident.

... 

The applicant’s legal representative proposed not to detain the applicant pending trial, as there were no circumstances indicating that the defendant should be put in pre-trial detention, and considering the fact that he would not tamper with witnesses, nor re-offend, and bearing in mind that the British Embassy would not allow the defendant to leave the territory of the [Former Yugoslav] Republic of Macedonia and would not issue him a new passport.

The defendant stated that he had stopped of his free will and had not tried to escape [from the place of accident]

...”

The investigating judge decided to detain the applicant pending trial.

The same day the investigating judge interrogated the other three drivers, who that day, drove lorries in the motorcade with the applicant. They were from Croatia and Bosnia and Herzegovina. From the minutes of the questioning of two of them it appears that the applicant’s lawyer was present at the questioning.

According to their separate accounts they had been driving at speed of 70 km/hour in the direction Gevgelija-Skopje. The applicant, who was the last in the motorcade, overtook the third lorry on the section of the road that was marked with full white line on their side. When the applicant had started overtaking the second lorry and had been positioned on the lane reserved for the vehicles coming from the opposite direction, the driver of the first lorry had noticed that a car appeared from the curve and gave a signal to the applicant. The applicant had been trying to return to the lane, while the car had started to brake in order to avoid the collision with the applicant’s vehicle. It had not bumped into the applicant’s vehicle, but went to the right and got out of the asphalt road. As a result a huge amount of dust arose, so the witnesses had been unable to see what happened afterwards. One of the witnesses stated that he had noticed that the applicant had managed to return to the right lane. Afterwards he noticed that the front left side of the last lorry in the motorcade had been damaged and behind it the car had tumbled over on its right side.   

On 29 July 1999 the three passengers of the car gave evidence to the investigating judge. The applicant’s lawyer, albeit summoned, failed to appear at the hearing. According to their statements, on 27 July 1999 they had been travelling from Valandovo to Gevgelija in their cousin’s car. After they had passed a curve, they suddenly noticed that their lane had been blocked by a freight vehicle coming from the opposite direction. The driver of the car had started to brake. In order to avoid direct collision the driver had turned sharply to the right and went off the asphalt road to the earth path. Their car had hit the grass embankment, and then the driver turned the steering wheel to the left. The car had started turning around and couple of times it hit one of the freight vehicles. It had continued to slide and stopped overturned on its right side. The witnesses had pulled themselves out of the vehicle and were only aware that they had been taken to hospital in a taxi.

On 29 and 30 July 1999 the brother and the father of the deceased gave evidence to the investigating judge.

By decisions of 25 August, 24 September, 22 October and 19 November 1999 the investigating judge extended the applicant’s pre-trial detention.

On 6 October 1999 the applicant was again brought before the investigating judge. His lawyer and the court interpreter were present. However, only those questions which dealt with the applicant’s basic personal details were interpreted to him. He was unaware of the purpose of the hearing.

On 20 October 1999 the applicant, who remained in pre-trial detention, was indicted for causing death and injuries by negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code. The indictment contained a schedule of the evidence which the Public Prosecutor adduced before the court.

On 17 November 1999 a hearing took place before the Gevgelija Trial Court. The public prosecutor read out the indictment which contained a schedule of the evidence on which the prosecution relied. The interpreter orally translated the indictment and handed a copy of a certified translation to the applicant. In the minutes it was recorded that the applicant stated that he had understood the indictment.

The applicant, in the presence of his lawyer, gave the following account:

“On 27 July 1999 around 9.15 p.m. I was travelling from Greece to [the Former Yugoslav Republic of] Macedonia and I had already completed all procedures at the border. I was driving at a speed of 70 km/hour [in a motorcade] with three freight vehicles. First I started overtaking the third vehicle and I passed it, then I started overtaking the second vehicle in order to come behind the first freight vehicle. While I was positioning myself behind the first vehicle I noticed that from the opposite direction a vehicle was approaching, that is, I first saw the light of the vehicle and then the vehicle. I actually heard the sound of the vehicle that was braking out of control. Then I shifted behind the first vehicle and in order [for me to enter the right lane] the second vehicle decelerated its speed and I started to move behind the first vehicle. I had no reason to stop because I did not bump into anything, my vehicle and the vehicle from the opposite direction passed one by another. I started to decelerate. When I glimpsed, I was driving for 2-3 seconds after the overtaking. The first vehicle started to decelerate and I slowed down without braking...

Then the police came and they approached my lorry - all of that in about twenty minutes. My passport was taken away, then I waited for half an hour and during that time I walked towards the vehicle, I mean the passenger vehicle, however, I could not get to it because there were so many people.

...

Then I went as, I said above, in the police vehicle. Then I was taken to hospital and to the site where the accident happened...

I do not agree with everything that is stated in the indictment. I was not driving at a speed of 90 km/hour, I was driving at a speed of 70 km/hour. I did not see where the passenger vehicle was hit, I only saw that we passed one by another and then I lost it from sight. I think that the passenger vehicle was going at speed superior to 117 km/h. I think that the driver of the passenger vehicle had time to pass by safely and I think that the driver of the passenger vehicle, in a moment of panic, lost control of the vehicle. Maybe my lights blinded the driver of the passenger vehicle because in Britain the lights are directed oppositely, since we drive on the left side.

...

The fact that I was driving at a speed of 70 km/h I noticed from my tachograph. I had a tachograph in the vehicle when I entered [the Former Yugoslav Republic of] Macedonia. I used the tachograph for twenty-four hours in my vehicle. On 26 July in the vehicle I put two tachographs, one in Greece which is a member of the European Union and one in [the Former Yugoslav Republic of] Macedonia...

I am hundred percent sure that I changed the tachograph at approximately 8.30 p.m. on the territory of [the Former Yugoslav Republic of] Macedonia...

I changed the tachograph because of a different law of the European Union - a different regime.

...

The police requested my tachograph, I gave them the tachograph, and I want to make this clear: I gave three tachographs to the police, the tachographs that I previously pulled out and put into a folder, one of which I took out of the lorry and the other two that had already been pulled out.

...

[The speed] of my vehicle is limited to 85-86 km/hour according to the mechanic in the tachograph centre in Britain. The speed can vary 88, 86 km/h the most.

...The lights of my vehicle such as they are positioned helped me to see the passenger vehicle and maybe they blinded the passenger vehicle. The first time that I saw the light from the opposite side I thought that they were from another road, because of the curve and the angle of movement of light. And then the lights suddenly turned towards me.

...”

At that hearing the passengers from the car were also interrogated. They confirmed their statements given to the investigating judge. From the minutes it appears that the parties stated that they had not had any questions to put to the passengers.

The drivers of the articulated lorries, albeit summoned, failed to appear before the court.

The expert on civil engineering gave, inter alia, the following account:

“On the ground of the evidence submitted...I prepared a written report...I calculated and established the speed of the defendant before the overtaking and at the time of the overtaking according to the tachograph log sheet submitted from [the applicant’s] vehicle and from the other tachograph log sheets taken from the three other freight vehicles. From the tachograph log sheet of the defendant in Greece after 12 noon [it appears that] he drove at a speed of 60 to 90 km/h and in some places he even moved with [speed] superior to 100 km/h, those were only occasional movements.

...

The tachograph log sheet was taken out at 8.30 p.m.. That means that the tachograph log sheet shows the movement of the vehicle only until 8.00 p.m. and not after that. The log sheet until that time was in the tachograph. This is a one day log-sheet. [The log sheet] is unified and he could have entered [the Former Yugoslav Republic of] Macedonia with it.

...

The speed of the other freight vehicles was established completely from the tachograph log sheets. It was approximately 70 to 72 km/h...

All three [other freight] vehicles moved at the constant speed of about 72 km/h. For the defendant to overtake and the fact is that he overtook [them], the speed has to increase, at least for 20 km/h, since we know that the [other] vehicles were moving at 70 km/h.

...

The tachograph log sheet...it cannot be established from which vehicle it originates nor the date can be established since it has to be noted down. If the time on the watch of the tachograph is set accurately than the time when the accident happened cannot be registered on the tachograph of the defendant. The [number] of km that appear on the tachograph of the defendant of 230km matches the number of km between Pathras and Evzoni...

The distance between the third and the second vehicle was approximately 200m to 250m and was enough if [the applicant] was moving at speed of 90 km to overtake  the third vehicle...and to start overtaking the second vehicle...Estimated from the tachographs, the car accident happened between 9.32 p.m. and 9.44 p.m. depending on the time set on the watch of the tachograph. The line of diagram of the defendant shows 90 km/h.

...

I took a general position that the maximum allowed speed was 100 km/h. If the driver or assistant driver, I am talking in general, is fastened with a safety belt, the probability that he would be thrown out from the vehicle in the case of the accident is very small. In this particular case, I do not know if the driver and assistant driver were fastened...”

The applicant’s lawyer objected to the expert report in respect of the estimated speed at which the applicant and the car were travelling and requested the expert to prepare an additional report.

Although an interpreter was present at the hearing, allegedly only the questions put to the applicant were interpreted.

The hearing was adjourned and at a later date further information was provided by the expert on civil engineering.

The hearing resumed on 1 December 1999 when again only questions directed at the applicant were translated by the interpreter.

At the hearing of 13 December 1999 the medical expert gave evidence and the final remarks of the parties were delivered.

On 16 December 1999 the applicant was found guilty of having committed a criminal offence with negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code by the Gevgelija Trial Court. In particular, he had not observed the traffic rules, as a result of his negligent behaviour two people died and three other were injured. He was sentenced to two years and six months’ term of imprisonment by the Gevgelija Trial Court. The court examined the evidence given by the three passengers of the car, the expert report and the additional expert report on civil engineering, the medical expert report, the statements of the three drivers of the lorries given to the investigating judge and of the father of one of the victims, the report of the Republic Institute of Jurisprudence Expertise, the report of the investigation on the spot with the sketch-map, the police report, the photos, the blood and urine test and the hospital discharge of the three passengers.

Relaying on the above evidence the court, inter alia, found that:

“...on the motorway Gevgelija-Skopje the defendant, travelling constantly at 90 km/h, which is 20km/h faster than the allowed speed for that category of vehicles, overtook the third freight vehicle and lined in the motorcade behind the second freight vehicle, shortly after at the same speed, he started outflanking and overtaking the second freight vehicle, although it was dark and the visibility was low, nearby the difficult curve to the right, where...a white full line indicates that overtaking and driving in the first lane is prohibited, just as the defendant was about to complete his action, a car appeared...

...from the curve on the opposite side of the motorway, because of the imminent danger of direct collision the driver now deceased started intensively to brake and after some time of intensive braking on his right lane, he stopped braking and turned the steering will to the right, avoided the collision with the defendant’s vehicle and [the car] skidding went to the right and it completely went off the motorway into the right [grass] embankment, hit it, returned to the motorway where it turned over several times and overturned [the car] had slid for about 60 to 65 meters it went on the left lane where it first hit the left front of the third vehicle in the motorcade, driven by Lukica Menalo, and than it hit its left side [of the same vehicle] where the tool and spare tires are usually kept. According to the tachograph sheets taken from the freight vehicles of Lukica Menalo, Marijo Grmoja and Mile Maslac [the drivers], it is established that their vehicles [had been travelling] at constant speed of about 70 to 72 km/hour. The tachographs were in the mentioned vehicles [of Lukica Menalo, Marijo Grmoja and Mile Maslac] at the time of the accident. The tachograph taken from the defendant’s vehicle shows that it had been put on 9.07 a.m. on 26 July 1999 and had been removed at 8.30 p.m. i.e. before the accident happened....and was sufficient that the defendant moved at speed of 90 km/h which was 20km/h more than the speed of the third and the second freight vehicle and it was approximately 20km/h higher than the allowed speed for that category of vehicles...[to overtake the lorries].”

On 18 February 2000 the applicant’s lawyer lodged an appeal with the Skopje Appellate Court. He complained, inter alia, that the lower court:

a) had failed to give reasons for its finding that the defendant’s vehicle had been travelling at 90 km/hour;

b) had considered the incorrect tachograph evidence;

c) had failed to ensure that the car was subject to a technical examination;

d) did not note that the expert report on civil engineering was imprecise, that some elements were incorrect and that this shortcoming was not corrected in the additional report;

e) had failed to afford the defence the facilities to arrange for the blood of the deceased driver to be examined for its alcohol or drug content;

f) had based its judgment on the witnesses’ statements which were imprecise and inconsistent; and

g) had paid little if any intention to the individual responsibility of the driver, as he drove at a higher speed than that allowed at that section of the motorway, that the car had not been technically examined and that the passengers had not fastened their seat belts.

At the public hearing of 14 March 2000 in the presence of another court interpreter the Skopje Appellate Court dismissed the appeal and endorsed the reasons for the lower court’s decision. In its judgment there was no mentioning of the applicant’s arguments concerning the examination of the car or the driver’s blood for the presence of drugs or alcohol.

The Skopje Appellate Court reduced the applicant’s sentence to two years’ term of imprisonment holding that the fact that the driver of the car had been driving at a higher speed than the one allowed was a mitigating circumstance in respect of the applicant’s guilt. The applicant alleges that nothing was translated to him apart from the figure “two years”.

On 1 June 2000 the Supreme Court refused to examine the extraordinary petition for review submitted by the applicant (Барање за вонредно преиспитување на правосилна пресуда). The court, inter alia, found that the applicant was served with the Appellate Court’s judgment through the court interpreter on 27 March 2000. The applicant’s lawyer lodged the above petition with the Supreme Court on 29 April 2000, therefore after the one-month time-limit prescribed by Article 411 § 2 of the Code of Criminal Procedure (see relevant domestic law).

On 12 July 2000 the Gevgelija Trial Court ordered the applicant to pay damages.

In December 2000 the applicant was released from prison and he returned to the United Kingdom.

During his time in custody the applicant shared a cramped, squalid cell with ten other inmates without running water and with poor sanitary facilities.

B.  Relevant domestic law

1.  Constitution

Article 13 provides as follows:

“A person indicted for an offence shall be considered innocent until found guilty by a binding judgment.”

2.  Penal Code

Articles 297 and 300 provide, inter alia, that when human casualties occur as a result of a person being negligent and not having observed Rules of the Traffic Code, that person shall be sentenced to from one to five years’ imprisonment.

3.  Code of criminal procedure

a.  Appeals against the decisions of the investigating judge

Article 22 § 6 provides, inter alia, that a bench of three judges of the first instance court shall decide on appeals lodged against the decisions of the investigating judge.

Article 382 § 1 provides, inter alia, that a person shall have the right to appeal against the decisions of the investigating judge.

b.  Information on the reasons of the arrest and charges

Article 3 §§ 1, 2 and 3 provides, inter alia, that a person who has been summoned or apprehended shall be informed promptly, in a language that he understands, of the reasons for his summoning, apprehension or any charge against him, of his legal rights, and shall have the right not to make any statements. He shall be informed of his right to remain silent, to consult with a lawyer, to have a lawyer of his choice present during questioning, as well as, to inform a third party of the fact of his detention. Everyone arrested or detained shall be brought within 24 hours before a judge who shall promptly decide on the lawfulness of the detention.

Article 4 §§ 1 and 2 provides, inter alia, that everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail of the accusations and circumstances against him, shall have adequate time and facilities for the preparation of his defence and the right to communicate with the legal representative of his own choosing, to be present at the trial and to defend himself in person or through legal assistance of his own choosing, to be given free legal assistance, when the interests of justice so require and to examine or have examined witnesses.

c.  Legal representation

Article 63 §§ 1 and 2 provides, inter alia, that every person has a right to be legally represented in pre-criminal and court procedure. Before the first interrogation, the suspect in pre-criminal procedure and an accused person must be informed of the right to have a legal representative of their own choosing who may be present at the interrogation.

Article 70 provides, inter alia, that everybody detained shall have the right to consult his legal representative without any restriction or supervision.

Article 71 provides, inter alia, that the legal representative may undertake all the actions that the applicant has the right to undertake on the applicant’s behalf.

Article 186 provides, inter alia, that the investigating judge shall promptly inform an arrested person of the right to appoint a legal representative who may be present at his questioning and shall assist the arrested person in finding a legal representative if the need may be.

d.  Interpretation

Article 7 §§ 2 and 3 provides that everybody in the criminal proceedings shall be informed of his right to the free assistance of an interpreter provided that he cannot understand or speak the language used in court.

Article 8 § 4 provides that a foreign citizen who is apprehended shall have the right to submit his documents to the court in his language.

e.  Questioning of the accused

Article 210 §§ 1, 2, 4 and 8 provides, inter alia, that the accused who is being questioned shall first be asked about his personal data. Then he shall be informed of charges against him, the reasons why he is a suspect and he shall be asked to put forward his defence. He shall be informed of the right to remain silent. He may make statements without any restrictions in respect of facts against him and may state all facts in his defence. The accused may be questioned only after he finishes his statement.

A person may be questioned in the absence of his legal representative only if he waives this right, save in cases when the law provides that the presence of a legal representative is obligatory.

f.  Pre-trial detention

Article 193 § 4 provides, inter alia, that everybody detained pending trial may ask to be put alone in a pre-trial detention facility.

Article 194 §§ 1, 2 and 3 provides that the persons detained pending trial shall have the right of an uninterrupted daily rest of eight hours. They may obtain food, clothes, bed sheets, books, newspapers on their own expense if approved by the investigating body. The detained persons may use means necessary to maintain the hygiene in the pre-trial detention facility.

Article 195 provides, inter alia, that the officials working for the diplomatic representative offices may, on the approval of the investigating judge, visit and speak without any supervision with a person detained pending trial who is a citizen of their country. After the person is indicted such an approval shall be given by the president of the bench.

Article 197 §§ 1, 2 and 4 provides, inter alia, that the president of the competent trial court shall supervise the conditions of detention of the persons detained pending trial. He shall visit the detained persons at least once a week and, without the prison warders being present, inquire with the detained persons about the food they are given, other necessities and the treatment that they have received. The responsible judge shall undertake all the necessary measures to correct all the shortcomings in this respect. The president of the competent court and the investigating judge shall have the right to visit the detained persons at any time, speak to them and hear their complaints.

g.  The right to consult the case-file

Under Articles 69 and 124 a lawyer has the right to consult all the documents in the case-file from the day the prosecution authorities request the investigating judge to open preliminary investigation. A defendant enjoys that right from the day he has been questioned by the investigating judge.

h.  Examination of witnesses and experts

Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation.

Article 161 §§ 4 and 7 reads as follows:

“4.  The prosecution, the defendant and the defendant’s lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ...

...

7.  Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ...”

Article 319 § 1 provides, inter alia, that at the trial after the presiding judge has finished the interrogation of a witness or an expert, the accused and his lawyer have the right directly to put questions to him on the approval of the presiding judge.

Article 325 § 1 reads as follows:

“When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine him shall not be lost because the transcript of his statement is read out, or because he has already given a written statement.”

j.  Trial

Article 307 §§ 1 and 2 provides that the indictment against the defendant shall be read out at the beginning of the hearing by the prosecutor.

Article 308 §§ 1, 3, 4 and 5 and Article 309 § 4 provide that after the indictment is read out or orally explained the presiding judge shall interrogate the defendant. He shall ask the defendant whether he understands the indictment and if not the presiding judge shall elaborate it. Then he will ask the defendant to give his opinion on each of the items of the indictment and to present his defence. The defendant shall have the right not to give his defence. After the interrogation of the defendant the presiding judge shall ask him if he wishes to add something in connection with his defence.

Article 310 § 1 provides, inter alia, that the prosecutor and the legal counsel may interrogate the defendant.

k.  The right to call evidence

Article 274 §§ 1 and 2 reads as follows:

“1.  The parties shall have the right to call...evidence at the hearing even after the case is listed for a hearing.

2.  If the presiding judge dismisses the request to call fresh evidence, the parties shall have the right to call evidence at the public hearing.”

l.  The taking of evidence

Under Article 314 § 2 the courts may obtain, even at their own motion, evidence which they consider will assist in establishing the truth.

m.  Appeal

Article 354 read together with Articles 355 § 3 and 275 provides that an appeal may be lodged with the Appellate Court when a hearing took place in the absence of the court interpreter.

n.  Extraordinary petition for review (Барање за вонредно преиспитување на правосилна судска одлука)

Article 411 §§ 1 and 2 reads as follows:

“(1)  A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an extraordinary petition for review in the cases set forth in this Code.

(2)  [The extraordinary petition for review] may be lodged within one month from the day the accused was served with a binding judgment”

Article 412 reads as follows:

“The Supreme Court shall have jurisdiction to deal with such an extraordinary petition for review.”

Article 413 § 1 in conjunction with Article 356 §§ 1, 2, 3, 4 and 6 lays down that the above petition may be lodged on the grounds that the act or omission of the convict does not constitute a criminal offence under the Penal Code, there is a justification excluding criminal responsibility, there is a justification excluding the prosecution of the convict (for example: he is granted amnesty), the lower courts applied law wrongly and a heavier penalty is imposed than the one prescribed by the Penal Code for such an offence.

Article 413 § 2 in conjunction with Article 355 §§ 1, 5, 8, 9 and 10 lays down that such a petition may be lodged on the grounds that the bench was improperly composed or the judgment was rendered by a judge who was not present at the hearing, the convict was not prosecuted by a competent prosecutor, the final judgment is based on inadmissible decisive evidence, the courts decided on issues other than the ones set out in the indictment and there is a breach of the principle of reformatio in pejus.

Article 413 § 3 specifies that such a legal remedy may be lodged if the convict’s right to defence was breached during the course of the trial, or because the provisions of the Code of Criminal Procedure in respect of the  appellate proceedings were breached provided that that was decisive for the outcome of the proceedings.

Article 414 §§ 2, 3, and 5 provides, inter alia, that the petition for review shall be lodged through the trial court, that the president of the trial court, or of the competent court shall refuse to examine the extraordinary petition for review which was lodged out of the time limit, and that the competent court may decide to suspend an execution of a binding judgment until the petition for review is dealt with.

Article 415 in conjunction with Article 408 provides that when the Supreme Court grants the above petition it may substitute the binding judgment with its own verdict or quash the decisions of the lower courts and remit the case to them, or declare that the lower courts erred in law.

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that the conditions in the detention facility amounted to inhuman treatment as, in particular, the cell was overcrowded, there was no running water and sanitary facilities were poor. Furthermore, he was only given food twenty-two hours after his arrest.

2.  The applicant further complains under Article 5 §§ 2, 3 and 4 of the Convention that he was not informed promptly in a language which he understands of the reasons for his arrest and of any charge against him, that his pre-trial detention was unreasonably long and that his application for bail was refused for no valid reasons, that the judicial reviews of his pre-trial detention were ineffective as they were conducted in his absence and that he was denied access to the documents in the case-file, thereby, he could not effectively challenge the lawfulness of his detention pending trial.

3.  The applicant complains under Article 6 §§ 1 and § 3(a), (b), (d) and (e) taken alone or in conjunction with Article 14 that: (i) he was not informed promptly in a language which he understood of the reasons for his arrest and of any charge against him; (ii) there was no pre-trial disclosure of any evidence on which the prosecution proposed to rely other than the summary of anticipated evidence given in the indictment and the sketch-map and that the defence was not allowed access to tachograph evidence; (iii) the court omitted to examine evidence as to the technical examination of the car and the possible presence of alcohol or drugs in the driver’s blood; (iv) he was not given an opportunity to cross-examine some witnesses; (v) he was not provided with effective interpretation; and (vi) he was a victim of discrimination against non-nationals, as he was not provided with effective interpretation, the tribunal was not impartial and domestic law was wrongly applied in his case.

4.  The applicant alleges under Article 6 § 2 of the Convention that his trial did not respect his right to a presumption of innocence, nor was the standard of proof beyond reasonable doubt met. In particular, he was called to give his evidence first in his trial.

THE LAW

1.  The applicant complains that the conditions in the detention facility amounted to inhuman treatment.

The applicant invokes Article 3 of the Convention that provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant complains that he was not informed promptly in a language which he understood of the reasons for his arrest and of any charge against him, that his pre-trial detention was unreasonably long, that his application for bail was refused for no valid reasons, that the judicial reviews of his pre-trial detention were ineffective and that he was denied access to the documents in the case-file concerning his detention pending trial.

Article 5 §§ 2, 3 and 4 of the Convention, invoked by the applicant, as far as relevant, provides as follows:

“...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article...shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

...”

The Court recalls that under Article 35 § 1 of the Convention it may only deal with the matter which has been brought to its attention within six months from the decision or incident the subject-matter of the complaint.

As regards the applicant’s complaint that he was not informed promptly in a language which he understands of the reasons for his arrest and of any charge against him, the Court considers that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 § 2 as it finds that the complaint was lodged out of the six months’ time-limit. In particular, it notes that the facts to which this complaint relates occurred in July 1999, whereas the applicant introduced his complaint with the Court on 6 September 2000 (application no. 22051/93, decision of 29 November 1995, unpublished).

As regards the applicant’s complaint that his pre-trial detention was unreasonably long, the Court observes that Article 5 § 3 covers the period from the arrest of the accused on suspicion of having committed a criminal offence to his acquittal or conviction by the trial court (the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 24, § 9). Therefore, in the present case the starting point for the running of the six months’ time-limit prescribed by Article 35 § 1 is 16 December 1999 when the applicant was convicted by the Gevgelija Trial Court. Therefore, the Court finds that the complaint was lodged out of time.

As regards the remainder of the applicant’s complaints under Article 5, the Court also finds that they were lodged belatedly, as they relate to facts that had occurred before 16 December 1999.

Furthermore, an examination of the complaints under Article 5 does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months’ period prescribed by Article 35 § 1.

It follows that the applicant’s complaints under Article 5 §§ 2, 3 and 4  have to be rejected as being introduced outside the six months’ time-limit under Article 35 §§ 1 and 4 of the Convention.

3.  The applicant alleges that: he was not informed promptly in a language which he understood of the reasons for his arrest and of any charge against him; that he was not given an opportunity to cross-examine some witnesses; that he was not provided with effective interpretation; and that he was a victim of discrimination against non-nationals.

The applicant invokes Article 6 §§ 1 and 3 (a), (d) and (e) of the Convention, which provides as follows:

“1.  In the determination ...of any criminal charge against him, everyone is entitled to a fair and public hearing...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...

(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;

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4.  The applicant alleges that there was no pre-trial disclosure of any evidence on which the prosecution proposed to rely other than the summary of anticipated evidence given in the indictment and the sketch-map, that the defence was not allowed access to the tachograph evidence, and that the court omitted to examine evidence as to the technical examination of the car and the possible presence of alcohol or drugs in the driver’s blood. The applicant invokes a violation of Article 6 § 3 (b), which reads as follows:

“1.  In the determination ...of any criminal charge against him, everyone is entitled to a fair and public hearing...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(b)  to have adequate ... facilities for the preparation of his defence;”

The Court notes that the applicant neither substantiates his complaint that he did not have adequate facilities to prepare his defence nor does he indicate why he did not draw the attention of the Trial or the Appellate Court to the schedule of the evidence. It considers that this complaint is related to the manner in which the domestic courts assessed the evidence before them. However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (Garcia Ruiz c. Espagne [GC], n° 30544/96, § 27, CEDH 1999-I).

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

5.  The applicant alleges that his trial did not respect his right to a presumption of innocence, nor was the standard of proof beyond reasonable doubt met.

Article 6 § 2 of the Convention, invoked by the applicant, provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to ascertain that the proceedings considered as a whole were fair, which in case of criminal proceedings includes the observance of the presumption of innocence. Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused (see the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, pp. 31 and 33, §§ 67-68 and 77). Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 52, § 54).

The Court considers that the present case can be distinguished from the Telfner v Austria case (no. 33501/96, ECHR-2001) where the Court found a breach of Article 6 § 2 in that the courts required the applicant to provide an explanation although they had not been able to establish a convincing prima facie case against him, thereby shifting the burden of proof from the prosecution to the defence.

In the present case, the Court notices that the facts established by the Trial Court and confirmed by the Appellate Court concerning the applicant’s guilt were supported by conclusive evidence taken in an adversarial manner in which the applicant had the possibility to challenge evidence during the proceedings. In particular: a) the fact that he had started overtaking in the section of the road where that was prohibited was confirmed partly by the applicant’s statement, by the statements of the six eyewitnesses and by the report carried out on the site of the accident; b) the fact that he had been driving at a higher speed than allowed was established from the expert report on civil engineering; and c) the fact that by his behaviour he had caused the traffic accident with deadly consequences was established by the eyewitnesses’ statements.

In those circumstances there is no reason to doubt that in the instant case the applicant was convicted on the basis of a series of circumstances, indications and inferences which together constituted presumptions capable of being regarded as evidence by the law; moreover the validity of the Court’s inferences of fact are not subject to control by the Convention institutions (application no. 7628/76, decision of 9 May 1977, DR 9, p.174).

As regards the applicant’s allegations that he was called to give his evidence first at his trial, the Court notes that from the submissions in the case-file it transpires that the trial hearing before the Gevgelija Trial Court was opened in accordance with Articles 307 §§ 1 and 2, 308 §§ 1, 3, 4 and 5 and 309 § 4 of the Code of Criminal Procedure. In particular, only after the Public Prosecutor read out the indictment with a list of means of evidence on which he relied was the applicant questioned and invited to present his defence.

Therefore, the Court does not find anything in the proceedings before the domestic courts, or in their decisions that would indicate that they had a preconceived view of the applicant’s guilt.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

 

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Articles 3, 6 § 3 (a), (d) and (e) and 14 of the Convention;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President

HUDSON v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION


HUDSON v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION