FIRST SECTION
 
 
 
 
 
 
CASE OF PAPADAKIS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
 
(Application no. 50254/07)
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
26 February 2013
 
 
FINAL
 
26/05/2013
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Papadakis v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Isabelle Berro-Lefèvre, President,
 Elisabeth Steiner,
 Khanlar Hajiyev,
 Mirjana Lazarova Trajkovska,
 Julia Laffranque,
 Linos-Alexandre Sicilianos,
 Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 5 February 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50254/07) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Lampros Papadakis (“the applicant”), on 22 October 2007. 2. The applicant was represented by Mr P. Cobovski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The Greek Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), did not express the intention to do so. 4. The applicant alleged a violation, in particular, of his defence rights under Article 6 of the Convention with respect to evidence produced by a witness whose identity had not been disclosed and of his property rights in relation to a court order that he reimburse the storage costs for his car that had been seized. 5. On 8 June 2011 the alleged unfairness of the criminal proceedings and interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1959 and lives in Thessaloniki, Greece. A. Criminal proceedings against the applicant
1. Special investigative measures
7. On 10 November 2005 the public prosecutor ordered, under sections 42 § 2(2) and 142-b of the Criminal Proceedings Act (“the Act”, see paragraphs 65 and 68 below), secret surveillance, audio-visual recording and the use of undercover agents, as special investigative measures. The order was valid between 10 November and 10 December 2005 and concerned the whole territory of the respondent State. It was issued on the basis of a request from the Ministry of the Interior (“the Ministry”), which suspected that nationals of Greece and the former Yugoslav Republic of Macedonia, whose identity was unknown, were involved in drug trafficking. According to the information available at that time, the suspects were supposed to meet on 10 November 2005 in Skopje. It was believed that samples of drugs (cocaine) would be given to the undercover agents so that they could verify its quality. The order allowed the use of undercover agents (their number was not specified) from the Athens office of the US Drug Enforcement Administration (“DEA”) in the operation. Those agents were also allowed to take part in the same operation in Greece. 8. On 19 November 2005 the Ministry produced three reports concerning the use of the special investigative measures. They were accompanied by sixty-six photographs taken on 10 and 18 November 2005. 9. According to report no. 16.4-9122/1, on 10 November 2005 two DEA undercover agents arrived in the respondent State in order to meet Mr B.V., a Greek national who had also entered the respondent State that day. Mr B.V. had met two people in Skopje earlier that day, one of whom was the applicant. The critical meeting had taken place in a cafe bar in Skopje. Mr D.V. and Mr N.B. had joined them later. At the meeting, they had discussed a drug deal, namely that 10 kg of cocaine be sold to the undercover agents. Mr D.V. had suggested that they meet soon in Thessaloniki, where he would provide a sample of the drugs. On 14 November 2005 the Ministry was informed by its counterparts in Greece that the undercover agents had met the applicant, Mr B.V. and Mr D.V. that day in Thessaloniki. On that occasion, a sample of the cocaine had been handed over to the agents. It had been agreed that the drugs would be delivered on 18 November 2005 in Skopje. On 17 November 2005 the undercover agents arrived in the respondent State. The next day the applicant entered the respondent State in a Suzuki Vitara car with Greek registration plates. According to the report, he did not contact the undercover agents during that time. After Mr B.V. had received the money for the drugs in Thessaloniki, the police arrested Mr D.V., Mr N.B. and Mr A.T. at the border crossing with Bulgaria with 10 kg of cocaine in their car and arrested the applicant in Skopje. At the same time, Mr B.V. was arrested in Thessaloniki. 2. Pre-trial proceedings
10. On 19 November 2005 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation concerning the applicant, Mr D.V., Mr A.T., Mr N.B. and Mr B.V. on the basis of a reasonable suspicion of drug trafficking. He took oral evidence from the applicant and an undercover agent, whose identity was not disclosed. The applicant remained silent. Interpretation between Macedonian and Greek was provided. 11. The undercover agent presented his evidence in Greek. He gave evidence in the presence of the public prosecutor. A translation into Macedonian was also provided. The witness confirmed that he had met the applicant, Mr B.V. and Mr D.V. in Thessaloniki, Greece, in September 2005, where they had discussed a drug deal. On 10 November 2005 the witness had arrived at the cafe bar in Skopje where he had met the applicant, Mr B.V., Mr D.V. and another person. They had agreed that a sample of the drugs would be handed over to him on 14 November 2005 in Thessaloniki. On 14 November 2005 he had met the applicant, Mr B.V. and Mr D.V. in a cafe bar in Thessaloniki, where they had agreed that the drugs would be delivered to him on 18 November 2005 in Skopje and that Mr B.V. would receive the money the same day in Thessaloniki. Being shown photographs of the meeting at the cafe bar in Skopje taken on 10 November 2005, the witness recognised the applicant and some of his co-accused as having been present. 12. On 16 December 2005 the public prosecutor filed an indictment with the trial court charging the applicant, Mr D.V., Mr A.T. and Mr B.N. with drug trafficking. He successfully requested that the investigation concerning Mr B.V. be discontinued, as he was not within the reach of the domestic authorities. According to the indictment, the accused, together with Mr B.V., had acted in concert. On 10 November 2005 the applicant, Mr D.V. and Mr B.V., as sellers, had met two undercover agents, the buyers, in a cafe bar in Skopje in order to discuss the sale of about 10 kg of cocaine. On 14 November 2005 the applicant, Mr B.V. and Mr D.V. had met one of the undercover agents in Thessaloniki and had given him a sample of the drugs. On that occasion, they had agreed that the drugs would be handed over to the undercover agents on 18 November 2005 in Skopje, while at the same time Mr B.V. would receive money in payment for the drugs in Thessaloniki. On 18 November 2005 Mr D.V., Mr B.N. and Mr A.T., using an Opel Astra owned by Mr A.T., had travelled to Bulgaria, where they had bought 10.5 kg of cocaine from an unidentified person. At 9 p.m. the same day customs officers of the respondent State had found the drugs under the rear seat of the car. 13. The public prosecutor requested that the trial court take oral evidence from the accused and the undercover agents. The charges were further based on the order of 10 November 2005 (see paragraph 7 above), an expert report (drawn up on 19 November 2005, according to which the substance found in the Opel Astra had been cocaine), search reports, seven certificates for temporarily seized objects, photographs, two DVDs and the reports regarding the use of special investigative techniques (see paragraph 8 above). 14. After 26 January 2006 and on the applicant’s request, Serbian interpretation was provided by Mr P. Cobovski. 15. On 6 February 2006 the trial court dismissed an objection to the indictment lodged by the applicant in which he alleged, inter alia, that his defence rights had been violated during the investigation. This decision was translated into Serbian. 3. Proceedings before the trial court
16. After 1 March 2006, the applicant was represented by two domestic lawyers of his own choosing. On that date, the trial court allowed a motion for the video material recorded on the DVDs (see paragraph 13 above) to be shown in the presence of the applicant’s representatives only. On 20 March 2006 the applicant was also allowed to watch parts of the video material. On this latter date, a copy of the deposition taken from the undercover agent on 19 November 2005 (see paragraph 11 above) was provided to the applicant. The court further admitted in evidence a detailed list of incoming calls on the mobile phones confiscated from the accused. 17. At a hearing on 10 April 2006, the applicant requested a direct confrontation with the undercover agent examined on 19 November 2005 since putting questions in writing would protract the length of the proceedings. He was allowed to inspect photographs which had been developed from the video material recorded on the DVDs. The Ministry’s report concerning the other photographs taken (see paragraph 8 above) was translated into Serbian by an authorised interpreter. 18. On the same date, the available co-accused gave oral evidence. Mr D.V. stated that he had had business relations with the applicant and that their meetings during the critical time had concerned business matters. Mr A.T. stated that he had occasionally met the applicant at the business premises of Mr D.V. Mr B.N. stated that his contacts with the applicant had been sporadic and had always occurred through Mr D.V. The latter had often invited him to attend meetings with his business partners. He had been told by Mr D.V. that the applicant and Mr D.V. had discussed business matters related to the textile trade. 19. On 5 May 2006 the applicant, with the assistance of the Serbian interpreter, gave oral evidence. He confirmed that he understood the charges against him. The applicant described his long business history with partners from the respondent State and Serbia. He stated that he had never met Mr A.T. and Mr B.N. The only exception to that had been some meetings with Mr D.V. at which Mr B.N. had been present. He confirmed that he had met Mr D.V. and Mr B.V. in Thessaloniki. On that occasion, Mr B.V. had been accompanied by two persons whose identity had been unknown to him. He had recognised one of them on the video material contained on the DVDs. He confirmed that he had attended the critical meeting in the cafe bar in Skopje, but he denied that he had discussed drug trafficking. 20. At the hearing, the public prosecutor informed the court that efforts had been made to secure the attendance of the undercover agent or to enable his questioning for the next hearing. 21. On 12 May 2006 the public prosecutor requested that the trial judge summon the undercover agents who had been involved in the operation. As stated in the request, the identity of the undercover agents had been unknown to the prosecution. In this connection the trial judge asked the Macedonian Ministry of Justice and the responsible authorities in Greece to secure the attendance, for the hearing scheduled for 29 May 2006, of the witness who had given evidence in the pre-trial proceedings (see paragraph 11 above). 22. According to the court record of 29 May 2006, there was no information that the court summons had been duly served. The public prosecutor further informed the court that serious efforts had been made to secure the attendance of the undercover agent. 23. On 7 June 2006 another request was sent to the Ministry of Justice so that the undercover agent, who had testified in the pre-trial proceedings, would be present at the hearing scheduled for 21 June 2006. With a letter specified as “very important” (многу итно), on 16 June 2006 the Ministry of Justice of the respondent State forwarded the trial judge’s letter of 7 June 2006 to the Greek Ministry of Justice. 24. The court held a hearing on 21 June 2006. An undercover agent, other than the one heard on the hearing of 19 November 2005, was present and placed in a special room secured by the court. As noted in the court record, the attendance of the second undercover agent was not secured. The trial court, under section 270-a § 3 of the Act (see paragraph 73 below), heard oral evidence from the undercover agent. As noted in the transcript of the statement, he was one of the undercover agents referred to in the public prosecutor’s order of 10 November 2005 whose examination had been requested in the indictment (see paragraph 13 above). The examination was carried out in the presence of the president of the panel, the public prosecutor, an authorised court interpreter and a court clerk. The applicant and his lawyers were not present. According to the witness’s testimony, the witness had not previously given any statement before a judicial authority. As he presented evidence in English, a translation was provided into Macedonian by the interpreter. The witness stated:
“... I’m a special agent of the DEA and I was involved in the investigation as an undercover agent authorised by the Macedonian Ministry of the Interior. In August 2005 my office received information that there was a Balkan drug network involving Greek and Macedonian nationals. We identified a person called Mr B.V. ... On 29 August 2005 I managed to infiltrate the organisation and I personally met [Mr B.V.] in Thessaloniki. He told me that his associates had large quantities of cocaine in Macedonia ... I told him that I was interested in buying 50 kg of cocaine, but that since we’d just met, I’d decided to buy only 10 kg and would buy another 40 kg later. I called another undercover agent to join us. We were in a cafe bar in Thessaloniki. The undercover agent arrived. He had a bag, which he put on the ground between me and Mr B.V. I opened it so that Mr B.V. could see that there were 400,000 euros (EUR) inside ... During the first week of September 2005, we managed to introduce another undercover agent to Mr B.V. in Thessaloniki. [The applicant] also attended this meeting. I know his name since Mr B.V. introduced him to me ... On 19 September 2005 my colleague met Mr B.V., [the applicant] and two Macedonian nationals, one of whom we identified later as D. [Mr D.V.]. Mr D.V. told my colleague that ... he could supply [the cocaine] at a price of EUR 40,000 per kg. My colleague talked with Mr B.V. and [the applicant] in Greek and they translated for Mr D.V. since he did not understand Greek ... On 2 November 2005, my colleague and I met Mr B.V. in Thessaloniki. That was the first time that two undercover agents met Mr B.V... On 10 November 2005 I arrived in Macedonia together with my colleague. I called Mr B.V. and we agreed to meet in the I.P. cafe bar. After fifteen minutes, Mr B.V. and [the applicant] arrived. We were sitting together and I told Mr B.V. and [the applicant] that I didn’t want to see the cocaine ... and that instead, I wanted them to bring a sample of the cocaine to the cafe bar. Mr B.V. said that he ... needed to call his associate ... After fifteen minutes, Mr D.V. and another person arrived and joined us. Mr D.V. said that he could not bring the sample, but that he could secure it the next day if I stayed in Macedonia overnight ... In order to be sure that we got 10 kg of cocaine of good quality, we asked Mr D.V. to cut a piece from each package containing 1 kg of cocaine. [The applicant] said that in that case we must pay for the sample since if the sample was small it might pulverise. I think it is important to mention that since [the applicant] and Mr D.V. spoke the most, it was clear to me and my colleague that they took the decisions and that Mr B.V. was more silent. We spoke in Greek and [the applicant] translated for Mr D.V... On 14 November 2005 my colleague met Mr B.V., [the applicant] and Mr D.V. in a cafe bar in Thessaloniki. Mr D.V. handed over to my colleague a sample of 0.02 kg of cocaine ... After my colleague verified that the cocaine was of good quality, he told Mr D.V., [the applicant] and Mr B.V. that we would come to Macedonia to collect the cocaine and that we would pay in Thessaloniki ... The agreement was that my colleague and I would travel to Macedonia in order to meet [the applicant] and that Mr B.V. would remain in Thessaloniki so that one of my colleagues could show him the money. On 18 November 2005 my colleague and I arrived in Macedonia to meet [the applicant] ... I called [the applicant] to tell him that we were in downtown Skopje. [The applicant] told me that he was waiting for his associate and that he would meet me soon. At the same time in Thessaloniki, Mr B.V. met my colleague, also an undercover agent, who showed him 400,000 EUR which was to be paid, under the agreement, for 10 kg of cocaine ... After the money had been shown, I was still waiting for [the applicant]. I called [the applicant] again and he replied that everything was OK and that his men were coming to finish the job. [The applicant] also told me that he had spoken with Mr B.V., who had confirmed that he had seen the money. At about 9 p.m. I was informed by your services that a car transporting the drugs had been stopped at a border crossing and that the cocaine, I think 10 kg, had been found ... Your police arrested [the applicant]. Soon after ... I spoke with my office in Greece, which arrested Mr B.V. After all those involved had been arrested, my colleague and I went to court to give a statement before an investigating judge. On that occasion, my colleague gave a statement, but before I could have testified, I was informed that I had no authorisation from my office and so, I gave no statement. I now have that authorisation and that’s why I’m here today ...”
25. Being shown the photographs of the meeting in the cafe bar in Skopje on 10 November 2005, the witness recognised the applicant and some of his co-accused. The witness further stated that the applicant spoke Serbian. 26. According to the court record, the witness’s examination lasted from 9.30 a.m. to 12 noon that day (21 June 2006). Relevant parts of the court minutes read as follows:
“after oral evidence was taken from the person whose identity was protected (прикриен идентитет) ... the panel gives a transcript of his statement to the accused and their lawyers. They have an hour to read it, to consult their representatives and prepare questions, which the president of the panel, in the presence of the public prosecutor, the interpreter and minutes-holder, would communicate to the witness.
... The representative of Mr Lampros Papadakis, Mr I.P. from Skopje, sought that the court notes that ... (the witness’s statement) is new evidence admitted on request by the prosecution despite the fact that no indication was given regarding the circumstances in respect of which that witness would testify. I would like to underline that the one-hour time-limit given by the court is too short for a complete analysis of the statement and formulation of questions since we had no indications so far that this evidence would be admitted. There are no technical conditions in the courtroom for all accused and their lawyers adequately to prepare and put questions. He requested that the court allows at least 24 or 48 hours in order to be able to formulate questions.
[The applicant’s] lawyer, Mr G.K., requested that his client is served with a transcript of the witness’s statement translated into Serbian ...
...
[The applicant] also requested to be served with a transcript of the witness’s statement translated into Serbian.
... After the court had retired and deliberated and after the witness’s statement had been translated by an authorised interpreter, the court decided to serve [on the applicant] a translation of the statement. The lawyers’ requests to be given 24 or 48 hours or seven days (as requested by other co-accused) to prepare written questions for the undercover witness are dismissed given the fact that the undercover witness had twenty-four-hour leave to remain (in the respondent State). It is not accordingly possible to grant the lawyers’ requests nor there are statutory rules specifying compulsory time-limit to be given to the accused and their lawyers to prepare questions to be put in writing, through the court, to the witness.
... At 3,10 pm. sharp, the court decides to give one hour to the accused and their lawyers to prepare questions to be put to the undercover witness ...”
27. After the time-limit set by the court had expired, the accused, including the applicant, stated that they could not formulate any question to be put in writing to the undercover witness due to insufficient time. The court record stated inter alia:
“ ... After this time-limit expired ... all the accused and their lawyers stated that they were unable to put any questions at this moment ...
... The lawyer of the first-accused requests adjournment of the hearing since it is 6 pm. and the hearing started at 9 am. During this time, the accused, as well as the security guards, are present in the courtroom ...”
28. In a written submission of 10 July 2006, the applicant formulated five questions to be put in writing to the undercover agent examined, as stated in the submission, on 5 November 2005. 29. At a hearing on 11 July 2006, the trial court did not admit those questions. It further stated that:
“[the accused and their lawyers] have already been given, at the previous hearing when this person (the undercover agent) was present, the opportunity to put questions. After the examination of this witness had ended at 12 am., a written transcript of the statement was given to the accused and their lawyers who had the opportunity, until 6 pm., when the hearing was closed, to put those questions.”
30. Other relevant parts of the court record of that date read as follows:
“[The applicant’s] lawyer insists that the court summons both witnesses who are undercover agents in order that the accused and their lawyers question them directly. The analysis of the written statements given by the two witnesses revealed inconsistencies and they consider that [the witnesses’] statements were based mainly on presumptions of what had happened. Just in small part they concerned real facts ...

Article of the Convention at issue: Article 6
Outcome: violation