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 24 March 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 6 September 2000,
Having regard to the partial decision of 10 January 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
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. Jacobi, a lawyer practising in the United Kingdom.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Concerning the investigation and trial
The applicant was a driver of one of the lorries that transported oil for 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 others were injured.
At 10.50 p.m., the investigating judge on duty was informed about the accident. At 11.15 p.m. the investigating judge and the public prosecutor went to the scene. A record of the scene was made and personal data taken from all participants in the incident as well as data concerning the vehicles.
The inspection report of the investigating judge stated, inter alia, the following:
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 report described 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 suffered by other vehicles in the incident.
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.
At 10.00 a.m., there was a hearing before the investigating judge. The applicant appointed a local lawyer on the recommendation of the British Consul. The applicant and his lawyer were present at the hearing. The minutes of the hearing, signed by the applicant, the judge and the interpreter, 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, was 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 had 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 that the applicant should not be detained pending trial, as there were no circumstances indicating that the defendant should be put in pre-trial detention, or that he would tamper with witnesses, or 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 abscond [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 drove lorries in the convoy 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 a 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 off 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 in 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 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.
The applicant's lawyer objected to the expert report, communicated to him on 1 October 1999, as regarded its estimation of the speed at which the applicant and the car were travelling, and requested the expert to prepare an additional report. A translation of the report was transmitted to the applicant on 5 October 1999.
At a later date further information was provided by the expert.
On 6 October 1999, the applicant was brought before the investigating judge to give his view of the evidence presented so far. His counsel and the interpreter were present. The applicant maintained his right to silence. He and the interpreter signed the minutes. The applicant claimed that only those questions which dealt with his basic personal details were interpreted to him and that 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 22 October 1999, the court interpreter who had immediately translated the contents of the indictment, gave a copy to the applicant. A copy was also given to the applicant's counsel. On 4 November 1999, a translated copy of the indictment was given to the applicant.
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. 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. ... 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 ...”
As the applicant's counsel put questions to the expert which he could not answer immediately, it was proposed to put the questions in writing for the expert to give his view later during the proceedings. Although an interpreter was present at the hearing, the applicant alleges that only the questions put to him were interpreted.
The hearing resumed on 1 December 1999 when again, according to the applicant, only questions directed at the applicant were translated by the interpreter. The expert replied to the defence counsel's previous questions. Defence counsel applied to obtain fresh expert evidence. The prosecution objected. The court rejected the application.
At the hearing of 13 December 1999 the medical expert gave evidence. The other drivers in the convoy still did not appear. With the agreement of the public prosecutor and defence counsel, their statements before the investigating judge were read out. The court again rejected the defence's proposal to obtain further expert evidence, finding that the explanations by the expert had established the facts to a sufficient extent. 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 and as a result of his negligent behaviour two people died and three other were injured. He was sentenced to two years and six months' imprisonment by the Gevgelija Trial Court. The court had examined additionally the statement 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.
Relying 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 wheel 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 then it hit the 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 24 January 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 in the lower court's decision.
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 alleged that nothing was translated to him apart from the figure “two years”.
On 29 April 2000, the applicant submitted an extraordinary petition for review to the Supreme Court, claiming inter alia that the facts of the case had not been properly established and the evidence wrongly assessed.
On 1 June 2000 the Supreme Court refused to examine the extraordinary petition for review (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.
On 12 July 2000 Gevgelija Trial Court ordered the applicant to pay damages to the victims of 4,310,000 denars.
In December 2000 the applicant was released from prison and returned to the United Kingdom.
2. Concerning his arrest and detention
After his arrest on 27 July 1999, the applicant claimed that he was forced to sleep in a chair in the police station and that he was given limited food. During his time in Gevgelija prison, he claimed that he shared a cramped, squalid cell without running water and with poor sanitary facilities. Although his cell had two beds and he mostly shared with another prisoner, there were occasions when there were five in the cell, with three sleeping on the floor. He spent 31 days in solitary confinement in a cell with a hole in the ground as a toilet.
The Government stated that on arrival at the police station on 27 July 1999 the applicant was accommodated in the office of the police administrator until 8.00 a.m. and that he was given food and watermelon. He contacted his wife several times by phone. After 8.00 a.m., he was placed in the detention room, which had sanitary facilities and running water. On the way to court for the hearing at 10.00 a.m. he was given a sandwich. After he was remanded in custody, at 8.20 p.m. on 27 July 1999 the applicant was taken to Gevgelija prison where he was accommodated initially alone in a double cell. On 28 July 1999, the vice consul of the British Embassy accompanied by the applicant's lawyer visited the applicant there. After some time, another inmate joined him in the cell and for a certain period he was detained in a three-bed cell. The detention facilities in the prison had been renovated in 1998 and each cell had a sanitary facility and running water. There were showers and shaving facilities available separately. The applicant was checked by the prison doctor regularly and on his request on five further occasions while on four occasions he was able to see a specialist outside the prison.
On 29 March 2002 the applicant was sent to Idrizovo Prison in Skopje to serve his sentence.
B. Relevant domestic law (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.
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 at 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.”
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.
j. 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.”
k. 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.
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.
m. 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.
1. The applicant complained 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 and forced to sleep in a chair during the night.
2. The applicant complained under Article 6 §§ 1 and § 3(a), (b), (d) and (e) taken alone or in conjunction with Article 14 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.
1. The applicant complained that the conditions in the detention facility amounted to inhuman treatment, invoking Article 3 of the Convention which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They stated that the applicant had not initiated any procedure whatsoever before any competent domestic authority in respect of allegedly humiliating or degrading conditions of detention. He did not notify the President of the Court or the competent investigating judge of his complaints during the criminal proceedings. Even though he was in frequent touch with British Embassy representatives, the alleged conditions were not raised with their officials who could have communicated with the relevant ministries. As Article 11 of the Constitution prohibits any form of inhuman or degrading treatment, he could also have applied for legal protection of his right in the courts in a separate procedure.
The applicant submitted that while he conceded that he could have complained to the President of the Court or the investigating judge under provisions of the criminal code, he was, as a foreigner entirely unaware of his right to make such a complaint and even if it was explained to him, it was not in a language which he understood. As a foreigner without the services of an interpreter most of the time, he argued that he could not reasonably have been expected to pursue this remedy which was not sufficiently accessible to him. With reference to Embassy officials, it is not apparent that they could have done more than recommend that conditions be improved. He finally submitted that the Government had failed to discharge the burden of proving that any of the remedies referred to were adequate or effective and noted that they had conceded that a petition for extraordinary review was not an effective remedy.
B. The Court's assessment
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment, § 69 and Aksoy, §§ 53 and 54).
In the present case, the Court would observe that the applicant raised no complaint in any forum, or before any judicial officer, about the alleged inhuman conditions in which he was detained. In the ordinary course of events, an applicant alleging treatment in breach of Article 3 arising out of conditions of detention is required by Article 35 § 1 of the Convention to bring an application in the courts. The possibility of obtaining compensation will generally, and in normal circumstances, constitute an adequate and sufficient remedy for a substantive complaint of ill-treatment in violation of Article 3 of the Convention (see Nos. 5577-5583/72, Donnelly and others v. the United Kingdom, dec. 15.12.75, DR 4 p. 4 op. cit. at p. 66 and mutatis mutandis, Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I). While the applicant argues that as a foreigner who did not understand the language it could not have been expected that he make any applications, the Court recalls that he had a lawyer representing him who could communicate with him in English, as well as access to an interpreter and to United Kingdom consular officials. No explanation was given as to why the matter was not, or could not, have been raised and the appropriate procedure initiated.
Accordingly, the Court is not satisfied that the applicant took reasonable steps to bring his complaints to the attention of the authorities and to obtain any available redress. In the circumstances, this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant alleged 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. He invoked Article 6 §§ 1 and 3 (a), (d) and (e) of the Convention, alone and together with Article 14, which provide 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 enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties' submissions
The Government submitted that the applicant did not complain of any violation or request protection of his Article 6 rights, which coincided with rights under the Code of Criminal Procedure, during the investigation or trial. Furthermore, the appeal lodged by the applicant made no mention of any of the complaints now raised in this application. The Appellate Court had the power to quash the trial verdict and order a re-trial or substitute a modified verdict. His appeal pertained only to errors in the establishment of the facts and assessment of the evidence. The possibility of lodging an extraordinary petition for review with the Supreme Court was not an effective remedy and not to be taken into account. They therefore contended that he had failed to exhaust domestic remedies.
The applicant alleged that he had raised the substance of his complaints. His lawyer had on several occasions prior to the trial sought to clarify the nature and cause of the accusation and had complained about the quality of the interpretation. The Government had therefore been given several opportunities to correct the violations but did not do so. The appeal grounds showed that there were substantial issues arising out of the evidence of the lorry drivers who had not been called at the trial and that he alleged “Violation of the Criminal Code”. It could also be regarded as otiose to appeal on the grounds of delay in informing him of the detail of the accusation against him. He agreed that the extraordinary petition for review was not an efficient remedy which he was required to exhaust.
B. The Court's assessment
The Court refers to the principles concerning exhaustion of domestic remedies set out above, which underline the subsidiary nature of the Convention system and the fundamental requirement that an applicant raise his complaints at least in substance in the domestic system before coming to Strasbourg.
As regards the complaints about the provision of interpretation, there is no official record in the minutes of the investigation or trial of any complaint raised by the applicant or his lawyer. However, even assuming that the matter had nonetheless been brought to the attention of the court by his lawyer as alleged by the applicant, the Court notes that this alleged shortcoming was not included in the grounds of appeal. Similarly, the applicant's appeal to the Appellate Court did not include any reference to any failure to be informed promptly in a language which he understood of the reasons for his arrest and of any charge against him or of any inability to cross-examine witnesses. On the latter point, the fact that the grounds of appeal challenged evidence related to those witnesses is not sufficient to alert the court to any grievance arising out of their non-appearance at the trial. As regards the effectiveness of raising any of these points on appeal, the Court would observe that the Code of Criminal Procedure mirrored the requirements of Article 6 in many respects and that breach of its provisions could provide a basis for appeal to the Appellate Court which had powers to order a retrial or substitute its own verdict. It is not for this Court to attempt to second-guess how the Appellate Court would have dealt with any complaints on these matters or what its assessment of their merits would have been.
As regards the applicant's extraordinary petition for review to the Supreme Court, the Court notes that both parties considered that this was not an effective remedy to be exhausted in the circumstances. Since, in any event, the applicant failed to utilise the procedure within the time-limit, the Court does not consider it necessary to determine the extent to which the procedure for extraordinary petition could provide an effective remedy for complaints under the Convention and relies on the reasoning above.
In the circumstances, this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan
HUDSON v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION
HUDSON v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION