ITEMID: 001-86218
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DEDOVSKIY AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
TEXT: 6. The applicants are:
Mr Mikhail Vladimirovich Dedovskiy born in 1969,
Mr Alexandr Mikhaylovich Matrosov born in 1968,
Mr Viktor Viktorovich Vidin born in 1978,
Mr Stanislav Lvovich Bukhman born in 1974,
Mr Igor Anatolyevich Kolpakov born in 1975,
Mr Dmitriy Vladimirovich Gorokhov born in 1980, and
Mr Aleksey Shamilyevich Pazleev born in 1974.
7. At the material time all the applicants were serving a prison sentence in correctional colony no. AM-244/9-11 in the village of Chepets of the Cherdynskiy district of the Perm Region (also known as facility no. IK-11, hereinafter “the colony”).
8. In April 2001 a group of eight officers of a special-purpose unit, Varyag, of the Directorate of Correctional Facilities AM-244 (now renumbered as VK-240, отдел специального назначения «Варяг» Управления лесных исправительных учреждений АМ-244/ВК-240), under the command of Mr B., arrived at the colony for the purpose of “rendering practical assistance in maintaining the detention regime”.
9. Upon their arrival Mr B. and Mr P., the deputy colony director for security and operational activities, devised a plan which included the following measures: searches of the living premises, including the premises of the strict-security department (отряд со строгими условиями содержания), the punishment ward (штрафной изолятор) and cell-like premises (помещения камерного типа); body searches of detainees, including on their return from work; and supervision of the detainees’ compliance with the regime regulations. The officers of the unit wore balaclava masks and carried rubber truncheons during the implementation of the plan.
10. The applicants alleged that the unit officers had beaten detainees with truncheons and kicked and punched them. Specific allegations concerning each applicant are outlined in chronological order below.
11. On coming back from work to the colony living premises Mr Dedovskiy learnt from other detainees that the unit officers were performing a search. The officers wore camouflage and balaclava masks. During the search they hit Mr Dedovskiy on his back four or five times with a truncheon without any apparent reason and verbally assaulted him. On leaving the search premises he received more truncheon blows.
12. Later in the day, when going to dinner, Mr Dedovskiy, among other detainees, was told to squat down and waddle “duck-style” to the canteen.
13. On coming back from work to the colony Mr Matrosov was told to submit to a strip-search. Mr P., the deputy colony director, divided all the detainees into groups of five and told them to run into the search room. Inside the room Mr Matrosov was ordered to look at the floor and comply with all instructions. Any delay in fulfilling an order was met with punches to the stomach and head. Once the strip-search was completed, Mr Matrosov was thrown half-naked out into the courtyard.
14. On coming back from work to the colony, the unit officers hit Mr Vidin on his head, neck and spine with a truncheon during their search. As a result, he could not work for an extended period of time owing to pain in his head and spine. He attempted to seek medical assistance but the medical department was closed.
15. Later in the day, when going to dinner, Mr Vidin, among others, was told to squat down and waddle to the canteen. On entering the canteen and while eating the unit officers hit him in the small of his back.
16. At the roll-call Mr Bukhman was beaten for having answered a unit officer’s question too softly.
17. Mr Gorokhov was held in cell no. 1 of the strict-security department. At about 11 p.m. the unit officers arrived at the department and told the detainees to go out into the corridor and to remain spread-eagled against the wall. While they were standing there, the officers punched them; Mr Gorokhov received several blows to his liver and spine.
18. The unit officers hit Mr Dedovskiy, among other detainees, during the wake-up and on their way to the canteen and back. He was also hit while eating. The officers allegedly hit him with a truncheon, holding it by the light end in order to increase the pain.
19. At their work-place detainees, including Mr Matrosov, were told to form a line. The unit officers and Mr F., the security head, verbally assaulted them.
20. The unit officers allegedly told Mr Bukhman, when going to dinner, to carry another detainee on his back. Then they told all the detainees to go to the canteen in couples holding hands. Mr Bukhman was beaten for refusing to comply with these demands. After that a unit officer jumped on his back and told him to carry him to the canteen. Mr Bukhman’s refusal provoked a new round of beatings.
21. On that day Mr Kolpakov, among other detainees, arrived at the colony to serve his sentence. The unit officers verbally and physically assaulted them on their way from the car to the punishment ward, where the newly arrived detainees were held. Mr F. and Mr T. of the colony administration were present. Later, Mr Kolpakov was taken out of the cell and beaten in the corridor with truncheons. Mr T. was again present.
22. The unit officers, accompanied by Mr F., came to the strict-security department where Mr Gorokhov was being held. The officers shouted at detainees as they were running out of the cells and punched them. Mr Gorokhov was hit and fell to the floor. Thereafter Mr Gorokhov and his cellmates were told to stand up, strip naked and lean spread-eagled against the wall. The officers punched and kicked them and also hit them with truncheons. Mr Gorokhov collapsed several times, but when he rose to his feet the beating resumed. The officers did not make any demands or claims of the detainees. As a consequence of that treatment, Mr Gorokhov had many bruises and abrasions, a headache and sharp pain in his liver.
23. Mr Pazleev was held in cell no. 1 of the strict-security department (the same cell as the sixth applicant, Mr Gorokhov). At about 3.30 p.m. on that day the unit officers opened the door of their cell and put a bench in front of it. The detainees were rudely told to jump over the bench into the corridor. Mr Pazleev stumbled over the bench and fell. The officers started to punch and kick him and to hit him with truncheons. In the corridor all the detainees were stripped naked and placed spread-eagled against the wall. Then the officers beat them. When Mr Pazleev fell, he was made to stand up again and the beating continued. The beatings lasted for approximately twenty minutes.
24. Once the unit officers had left, a doctor and a nurse entered the cell and asked whether there were any “bedridden patients” (that is, who could no longer walk by themselves). Mr Pazleev complained about sharp pains, but received no assistance.
25. The report on the use of a rubber truncheon of 18 April 2001 indicated that “during a search... at 3.30 p.m. the convict Pazleev refused to go out of the living premises into the common corridor, stating that he would be present during the search, although it was the convict Terekhov who had been assigned to be present during the search. Pazleev was warned that in case of further disobedience, a truncheon would be used on him, but he continued to disobey”. The report was signed by two colony officials and Mr B.
26. On coming back from work at about 7 p.m. Mr Dedovskiy, among other detainees, was subjected to a strip-search. During the search the officers punched him and hit him with truncheons.
27. The report on the use of a rubber truncheon of 19 April 2001 indicated that “on returning from the work facility Angara, the convict Dedovskiy repeatedly disobeyed the lawful request of the colony administration... because he flatly refused to spread his arms and legs wide apart for a body search. He did not react to the repeated requests. Thereafter, a rubber truncheon... was used on him”. The report was signed by two colony officials and Mr B.
28. Mr Matrosov, among other detainees, was beaten during the strip-search upon their return from work.
29. On coming to the canteen, detainees, including Mr Matrosov, were ordered to form two lines and run into the canteen one at a time. The unit officers stood at the doors and hit detainees with truncheons. While eating, the detainees were told not to raise their eyes and Mr Matrosov, among others, received a truncheon blow to his neck. On leaving the canteen he received more blows to his back.
30. At the roll-call Mr Bukhman was told to step out of the line and say “ah”. He was beaten for saying it too softly. As a result of the beatings, Mr Bukhman had broken ribs. He applied to the medical department, where a doctor treated the area around the broken ribs with iodine.
31. The unit officers took Mr Kolpakov, among other detainees, out of the cell and into the corridor, where he was spread-eagled against the wall and beaten.
32. Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P., were also present, in an inebriated state.
33. At about 7.15 a.m. the unit officers, together with Mr F. and Mr T., arrived at the strict-security department where Mr Kolpakov had been transferred from the punishment ward on the previous night. All the detainees, including the fifth applicant, were told to run out of the cells into the corridor. The unit officers punched and kicked Mr Kolpakov and beat him with truncheons. He collapsed several times and finally fainted after a particularly strong blow to his head.
34. Mr Kolpakov alleges that he had brain concussion. In December 2001 he was diagnosed with traumatic psychopathy in prison hospital UT-389/9 MOB, which he believes to be a consequence of the beating on 20 April 2001.
35. The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse at 7.15 a.m. the convict Kolpakov, along with other convicts, did not fulfil the get-up command. He flatly refused to proceed to the administrative premises to give a written explanation, and refused to give his name or to explain the reasons for his conduct”. The report was signed by two colony officials and Mr B.
36. The unit officers, this time accompanied by Mr T., came to the strict-security department, where Mr Gorokhov was being held. Mr Gorokhov and his cellmates were taken out into the corridor where the officers punched and kicked them and also hit them with truncheons. Thereafter he was allegedly refused medical assistance in the medical department of the colony.
37. The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse... the convict Gorokhov did not get up. When ordered to get up and dress, he reacted reluctantly and failed to dress in accordance with the established form of dress. When told to change his clothes and assume the normal look, he did not react, but behaved rudely and tactlessly towards the officers”. The report was signed by two colony officials and Mr B.
38. Mr Pazleev, among other detainees, was taken out of the cell into the corridor, where the unit officers punched and kicked them and also hit them with truncheons. Mr F. and Mr P. were also present, in an inebriated state.
39. On 9 June 2001 the Perm Regional Human Rights Centre handed 160 complaints of ill-treatment written by the colony detainees to the Perm Regional Ombudsman (Уполномоченный по правам человека в Пермской области, hereinafter “the Ombudsman”). The Ombudsman provided the Perm Regional prosecutor with copies of the complaints and requested factual information from the colony administration. On the same day the Usolsk town prosecutor in charge of supervision of compliance with laws in penitentiary institutions opened a criminal investigation into an offence under Article 286 § 3 of the Criminal Code (excess of power involving the use of weapons or special means).
40. On 20 June 2001 the Ombudsman decided to form a public commission for the investigation of the causes and circumstances of the events in colony AM 244/9-11. The commission included the Ombudsman, the director of the Perm Regional Human Rights Centre and a representative of the Perm Regional Government.
41. On 25 June 2001 the Ombudsman visited the colony and talked to the detainees who had lodged the complaints. The majority of them confirmed their statements.
42. On 6 July 2001 the director of facility no. AM-244 replied to the Ombudsman’s request for information as follows:
“The measures... with the involvement of the special-purpose unit officers... were carried out from 17 to 19 April [2001] on the basis of Article 82 of the Code on Execution of Punishments and they were not extraordinary... RP-73 [rubber truncheons] were used on detainees who refused to comply... The mass lodging of complaints about allegedly unlawful actions of the unit officers has been arranged by a criminal leader...”
43. On 16 August 2001 the director and other employees of the Perm Regional Human Rights Centre visited the colony. They were allowed to take photos and talked to five detainees in private. The findings were reported to the Ombudsman in the following manner:
“Conclusion: there is no reason not to trust the allegations of the detainees. For three days detainees were severely beaten while returning from work, in the canteen... in the punishment ward, in the cell-like premises... detainees were made to squat and waddle and then jump up again... they were stripped naked before the search... It is conceivable that the special-purpose unit was called upon to intimidate [detainees] in the wake of a conflict between the colony administration and the criminal leader. However, no matter how subversive the ringleader’s influence on other detainees might have been, this cannot in any way justify the unit’s actions ... especially taking into account that a majority of detainees in the colony are... unconnected to organised crime. It appears that the detainees were, as usual, ‘collateral damage’ of an extremely complicated and entangled relationship between the management of the correctional institution and criminal leaders.”
44. On 29 August 2001 the Ombudsman paid another visit to the colony and talked to twenty-four detainees. Of those, twenty-one detainees confirmed their initial allegations and indicated that they had given the same statements to investigators from the prosecutor’s office. The Ombudsman found a number of violations of the colony regime, such as belated provision of medical assistance in the punishment ward and cell-like premises, lack of water and lack of remedies against disciplinary sanctions imposed by the colony administration.
45. In late August and early September 2001 Mr Shcherbanenko, the head of the department for supervision of compliance with laws in penitentiary institutions, which is a department of the Prosecutor General’s Office, arrived in Perm for a special inquiry. The Government refused to produce a copy of his report requested by the Court (see paragraphs 103 and 105 below). According to the applicants, he found that (i) the unit officers had used rubber truncheons unlawfully; (ii) when performing their duties, the unit officers should not have worn balaclava masks; (iii) the quality of the pre-trial investigation had been unsatisfactory; and (iv) a few detainees had been unlawfully placed in the punishment ward. The Usolsk town prosecutor was disciplined and the materials of the investigation were transferred to the Perm Regional prosecutor.
46. On 4 September 2001 Mr B., the head of the special-purpose unit, was charged with an offence under Article 286 § 3 of the Criminal Code. On 11 September 2001 he was additionally charged under Article 293 § 1 of the Criminal Code (undue performance of professional duties entailing a substantial impairment of citizens’ rights and interests).
47. On 21 September 2001 a prosecutor discontinued criminal proceedings against Mr B.’s subordinates, officers of the special-purpose unit, finding as follows:
“In the period from 17 to 20 April [2001] the employees of the special-purpose unit AM-244 stayed at the colony, executing the deputy head’s request to carry out the planned preventive and regime measures on detainees of the colony IK-11. When carrying out these measures, officers of the unit used rubber truncheons on the detainees.
The investigation has taken all measures to determine the part of each unit officer in the events; however, the victims and witnesses were not able to identify the unit officers who had beaten them because they had worn identical camouflage and balaclava masks. Thus, the investigation has not obtained any objective information which would permit charges to be brought against any unit officers.”
48. On 25 September 2001 the same prosecutor discontinued the criminal proceedings in respect of the complaints lodged by the second, third and fourth applicants and 143 other detainees, finding that “the investigation had not obtained any objective information confirming these detainees’ allegations of the use of rubber truncheons by the special-purpose unit”.
49. On 4 October 2001 the same prosecutor discontinued criminal proceedings against Mr B. on the charge of excess of power. The prosecutor noted that Mr B. had not used a rubber truncheon himself and had not given orders to use one. The remaining charge of professional misconduct was referred for trial.
50. On 25 October 2001 the public commission was disbanded because the case had gone to trial.
51. From 4 to 8 February 2002 the Cherdynskiy District Court of the Perm Region held public hearings in the criminal case against Mr B., accused of professional misconduct under Article 293 § 1 of the Criminal Code. In total, forty detainees were granted victim status in the criminal proceedings; of these, nineteen persons took part in the hearings and written depositions by the others were read out before the court. The court took witness statements from five other detainees who had not been victims themselves.
52. The trial concerned ten counts. In counts 1 to 4 twelve detainees were beaten during searches on 17 and 18 April 2001. In count 5 twelve detainees, including the seventh applicant, were hit with rubber truncheons. Two detainees were hit with truncheons at the roll-call on 19 April 2001 (count 6). On the same day Mr B.’s subordinates beat three detainees, including the first applicant, who were returning from work (count 7) and two other detainees during a search in the punishment ward (count 8). In count 9 the fifth and sixth applicants, as well as six other detainees, were beaten with truncheons during the wake-up. Finally, another detainee received a truncheon blow on 20 April 2001 (count 10).
53. Before the court the applicants maintained their claims. The court decided, however, that their allegations were contradicted by the reports on the use of rubber truncheons (cited above) and witness statements by representatives of the colony administration.
54. The employees of the colony, including Mr F., Mr P. and Mr T., as well as Mr B.’s subordinates, denied any unjustified use of rubber truncheons on detainees. The colony doctor confirmed that a few detainees had applied for medical assistance after they had been hit with truncheons; however, no one had had broken ribs or been in a serious condition. Nor had medical assistance been refused to anyone. The five detainees heard by the court corroborated the statements by the other victims.
55. On 22 February 2002 the trial court delivered judgment. It acquitted Mr B. of the charges, finding as follows:
“Under Article 86 of the Code on Execution of Punishments and the Penitentiary Institutions Act, employees of penitentiary institutions may use special means, including rubber truncheons, in cases of persistent disobedience to the lawful demands of the colony staff... The court has established that... all demands... were lawful. In all cases the use of [rubber truncheons] was justified because they were used after... a warning of the intention to use a [truncheon] and because they were used when the victims refused to execute lawful demands of the staff, that is, disobedience to the colony staff... Each use of the [truncheon] was reported to B. if he was absent during its application... There are therefore no grounds to consider that [B.] did not exercise appropriate control over the lawfulness of the actions of his subordinates and in that way unduly performed his duties.
Nor did the court establish violations of rights and lawful interests of citizens who are the victims in the present case... [T]he court considers that damage to their health was caused on lawful grounds...
[T]he court also takes into account that criminal proceedings against the unit officers were discontinued for lack of evidence of a criminal offence... That decision has not been quashed. It does not, in itself, confirm the lawfulness of the unit officers’ actions... but it prevents [the court] from establishing the facts of unlawful actions.”
56. The prosecution and sixteen victims appealed against the acquittal. The prosecution submitted, in particular, that the trial court had based its judgments on the statements by the defendant, his subordinates and the colony administration and disregarded submissions by the detainees. It pointed out factual discrepancies: thus, according to the statements by B.’s subordinates, they had used truncheons twelve times, but B. had signed sixty-three reports on the use of special means. Moreover, it noted that the infliction of physical pain and bodily injuries had clearly violated the victims’ right and lawful interests and that the trial court had failed to identify lawful grounds for the use of physical force and special means.
57. On 17 December 2002 the Perm Regional Court examined the points of appeal and upheld the judgment of 22 February 2002. It noted that Mr B. had played a “merely nominal” part in the events and that he had not been able, or obliged, to control the conduct of each unit officer in his absence. He had not given orders to use truncheons and he had not used them himself. The appellate court held that in these circumstances the acquittal on the charge of undue performance of professional duties had been lawful and justified. It further noted that the investigative bodies had discontinued the proceedings against Mr B. on the charge of excess of power and against his subordinates for the lack of evidence of a criminal offence and it was not therefore required to rule on those issues.
58. Further to the Court’s request, the Government submitted handwritten and typed copies of the applicants’ medical records.
59. The medical records of the applicants Mr Dedovskiy, Mr Matrosov, Mr Gorokhov, Mr Bukhman and Mr Pazleev do not contain any entries relating to the time of the events described above. The entry of 25 June 2002 in Mr Pazleev’s medical record indicates that he was beaten by unidentified persons and underwent in-patient treatment in July 2001 for affected kidneys.
60. The medical record of the applicant Mr Vidin indicates that on 3 October 2001 he was referred to the prison hospital for treatment for inguinal hernia. In August 2002 he applied to the medical department in connection with recrudescence of otitis media, first diagnosed in 2001.
61. According to his medical record, on 5 December 2001 Mr Kolpakov asked to be examined by a psychiatrist, complaining of headache. There are no other entries for 2001. In 2002, 2003 and 2004 Mr Kolpakov received treatment for craniocerebral injury of an unspecified origin. According to the Government, that injury was the result of head traumas in 1982, 1990 and 1993.
62. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
63. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in the Russian legislation (Article 86 § 2).
64. When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
65. Rubber truncheons may be used for
(1) putting an end to assaults on officers, detainees or civilians;
(2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30).
66. If criminal proceedings are discontinued at the stage of the investigation, a victim or a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).
67. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted on the ground that one or more constituent elements of a criminal offence are missing (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in separate civil proceedings (Article 306 § 2).
VIOLATED_ARTICLES: 13
3
38


ITEMID: 001-84225
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JUCYS v. LITHUANIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Pecuniary and non-pecuniary damage - award (global)
JUDGES: András Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze;Riza Türmen
TEXT: 4. The applicant was born in 1953 and lives in Birštonas.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 23 December 1995 the applicant was arrested while crossing the Lithuanian border. He was suspected of attempting to smuggle untreated mink furs. The furs were forfeited as evidence in the context of the criminal case.
7. On the basis of a decision taken by the prosecution, on 14 March 1996 the furs were auctioned – being goods prone to deterioration - for 882,173 Lithuanian litai (LTL, or about EUR 255,495). The money received from the auction was transferred to the State budget.
8. On 30 January 1997 the applicant was acquitted by the Klaipėda Regional Court in view of the lack of any elements of a crime. The court did not rule on the issue of the forfeited evidence.
9. The applicant brought an appeal, requesting that this issue be resolved. However, on 26 March 1997 the Court of Appeal refused to deal with it, ruling that, since the furs had been sold, the handling of the proceeds from the sale was no longer within the jurisdiction of the criminal courts.
10. The applicant then brought an application before the Vilnius Regional Court, requesting compensation for the forfeited furs. On 8 October 1997 that court ruled that the question should be determined in civil proceedings.
11. On an unspecified date the applicant brought a civil action, claiming the LTL 749,847 (about EUR 217,171), i.e. the proceeds minus the auction expenses.
12. On an unspecified date, he brought a separate civil action, claiming the sum allegedly paid for the furs at the Copenhagen Fur Centre, corresponding to USD 327,542.57 or, at the then exchange rate, LTL 1,310,170 (EUR 379,451).
13. On 7 November 1997 the Klaipėda City District Court found that the tax authorities were obliged to pay the applicant LTL 749,847 (EUR 217,171). On 25 March 1998 that decision was quashed on procedural grounds by the Klaipėda Regional Court. The court held that the applicant should have applied to a Vilnius civil court. That decision was upheld by the Court of Appeal on 28 September 1998.
14. On 25 March 1998 the applicant re-applied, this time submitting his action to the Vilnius Regional Court and claiming the full proceeds of the auction sale - LTL 882,173 (about EUR 255,495).
15. On 28 January 2000 the court refused to admit the applicant's claim because he should have applied to the newly-created administrative courts (operational since May 1999). However, on 2 March 2000 the Court of Appeal quashed the decision of 28 January 2000, returning the case for a fresh examination by the Vilnius Regional Court by way of the civil procedure.
16. On 21 April 2000 the Klaipėda Regional Court decided to adjourn the examination of the applicant's claim pending the examination of his claim for the auction proceeds.
17. On 28 July 2000 the Vilnius Regional Court accepted the applicant's suit for the whole proceeds of the auction, awarding him LTL 882,173 (about EUR 255,495) against the Inland Revenue.
18. Upon appeal by the tax authorities, on 17 October 2000 the Court of Appeal quashed the lower court decision on the ground that the Ministry of Justice should have been the defendant in the proceedings. The case was remitted to the first instance court.
19. On 28 February 2001 the Supreme Court upheld the appellate decision, stating that both the Inland Revenue and the Ministry of Justice should have been the defendants in the proceedings. The Supreme Court further noted that the first-instance court should consider whether to join the case to the applicant's other claim for damages in the amount of LTL 1,310,170 (USD 327,542.57). It noted that in both cases the parties were the same, as was the nature of the claim, i.e. a request for compensation in respect of the value of the furs.
20. On 1 May 2004 the applicant re-submitted his claim of LTL 882,173 to the Vilnius Regional Court. The State, the Office of the Prosecutor General, the Ministry of Finance and the Inland Revenue were cited as the respondents.
21. On 20 June 2005 the Vilnius Regional Court rejected the applicant's claim as he had not proved that he had owned the furs.
22. On 2 November 2005 the Court of Appeal upheld that decision.
23. The applicant lodged a cassation appeal, reiterating his claim for LTL 882,173. On 26 May 2006 the Supreme Court quashed the lower decisions, accepting the applicant's claim. It held that, following the applicant's acquittal, he had been entitled to compensation for the proceeds of the auction. In this respect the Supreme Court noted:
“A person who has acquired property without a legal ground shall return it. The obligation arises where the ground on which the property was acquired ceases to exist. Such property can be goods forfeited upon suspicion of criminal acts. If the suspected person is acquitted ... the State no longer has any legal ground to retain the items seized, or their value, where the items have been sold as perishable. ...
Unjust enrichment occurs to the detriment of the interests of a person whose property has been seized. ...
When returning the property acquired without a legal ground or, as in the present case, the value of the objects sold, being quickly perishable, the debtor has a right to require compensation for the expenses incurred in maintaining the property (Article 513 of the Civil Code). This is the right of an honest debtor. Therefore, it has to be established whether the State had grounds to start the investigation and forfeit the goods in order to ensure the effectiveness thereof. The fact that no evidence of a crime has eventually been found is not in itself sufficient to assume the lack of honesty on the part of the State. ... Indeed, [the applicant] had incorrectly filled in the customs declaration ... and this was a sufficient ground to start the investigation against him and seize the material evidence. Therefore, in accordance with Article 513, the State should be entitled to recover the expenses incurred during the sale; those expenses appear to have been necessary in order to safeguard the value of the goods.”
24. The applicant was finally awarded LTL 590,056.05 (about EUR 170,892) in pecuniary damages, corresponding to the value of the auctioned furs from which was deducted the auction expenses (LTL 132,325.95, or about EUR 38,324) and value-added tax (LTL 158,791, or about EUR 45,989), which the applicant should anyway have paid on importing the furs into Lithuania.
25. It appears that the examination of the applicant's claim for the purported full value of the furs at LTL 1,310,170 (USD 327,542.57), which had been stayed on 21 April 2000, was not resumed (paragraphs 12, 16, and 19 above). (The parties have not provided the Court with up-dated information on this aspect of the case.)
26. On an unspecified date the applicant claimed interest on LTL 882,173 (the whole sum of the auction proceeds), calculated from the moment of his acquittal. On 21 November 2006 the Vilnius Regional Court awarded him interest in the amount of LTL 1,616 (approximately EUR 468) – the sum corresponding to 5% interest calculated on the basis of the sum awarded as damages by the Supreme Court on 26 May 2006 (LTL 590,056), from the moment of that award to its actual payment 20 days later. The court dismissed the applicant's allegation that the interest should be calculated on the basis of the whole sum of the auction proceeds. It also refused to award interest for the whole period of civil litigation for damages. The court considered that the State was liable to pay interest only from the date when the fact of unjust enrichment became known – i.e. when it was so concluded by the Supreme Court on 26 May 2006. Until then, the State was deemed an honest acquirer, even after the acquittal of the applicant. The decision was upheld by the Court of Appeal on 30 March 2007. On 12 October 2007 the Supreme Court upheld the lower courts' decisions. It stated that in accordance with the rules of criminal procedure, the confiscated goods should be returned to the acquitted person after his acquittal. It further stated that, as an honest acquirer of the auction proceeds, the State could not be liable to pay interest until the end of the criminal proceedings.
27. The applicant has presented an invoice issued by the Copenhagen Fur Centre on 15 December 1995, indicating that the furs had been purchased for USD 327,542.57 (about EUR 232,254).
28. According to Article 92 of the Code of Criminal Procedure (as then in force), an item which has been seized as material evidence pending criminal proceedings, and which is prone to deterioration, shall be sold in accordance with the applicable civil procedure.
29. Article 512 of the old Civil Code (valid until 30 June 2001) dealt with situations of unjust enrichment, providing for an obligation to return property acquired without a legal ground or to reimburse its value. Article 513 further stipulated:
“A person who has acquired property without any legal ground shall return or reimburse all the receipts that he [or she] obtained or ought to have obtained in using that property from the moment when he [or she] knew or ought to have known about the lack of grounds for ... enrichment.
This person has a right to require compensation for all the necessary expenses incurred during the same period in maintaining the property acquired without legal ground.”
30. Article 6.272 § 1 of the new Civil Code (which entered into force on 1 July 2001) allows a civil claim for pecuniary and non-pecuniary damage, in view of the unlawful actions of the investigating authorities or courts, in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement or the imposition of an unlawful administrative penalty.


ITEMID: 001-98206
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GOTTWALD-MARKUSIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mrs Miroslava Gottwald-Markušić, is a Croatian national who was born in 1937 and lives in Zagreb. She was represented before the Court by Mr A. Tomašić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1938 the applicant’s mother, M.G., became the owner of a 600 square-metre plot of land in Zagreb and was registered as such in the land register. It would appear that the land in question was sequestered on 18 October 1946 by the Communist authorities.
Meanwhile, in 1939 the applicant’s mother had built a garage and a one-storey residential building comprising of four flats on it, but without recording them in the land register.
The applicant claims that in 1945, her mother and she were forcibly evicted from the building by the Communist authorities without any formal decision. She further claims that no proceedings leading to appropriation of the building were ever instituted, nor was it ever transferred into social ownership and registered as such in the land register.
During the Communist regime, the authorities awarded the flats in the building to various persons under specially protected tenancies (stanarsko pravo).
On 27 March 1996, following the applicant’s request, the Land Registry Division (Zemljišnoknjižni odjel) of the Zagreb Municipal Court (Općinski sud u Zagrebu) recorded the building and the garage in the land register, and registered the applicant’s mother as their owner, on the ground that the applicant’s mother, who died in 1990, had until then been recorded in the land register as the owner of the plot of land on which those constructions had been built. Once the proceedings concerning her late mother’s estate ended (inheritance proceedings), on 9 September 1996 the applicant, as her heir, registered herself as the owner of the property in question.
On 13 February 1997 A.S. and A.B., the tenants of two flats located in the building at issue, brought a civil action against the applicant in the Zagreb Municipal Court seeking: (a) a declaration that in 1958 the building had been nationalised and transferred into social ownership, (b) a declaration of nullity of the applicant’s and her mother’s registration as owners in the land register, and (c) deletion of those entries from the land register and registration of the property in the name of the City of Zagreb. The City of Zagreb later intervened in the proceedings on the side of the plaintiffs.
On 16 May 2000 the Municipal Court dismissed the plaintiffs’ action and ruled in favour of the applicant. The court held that, while the Act on Nationalisation of Rental Buildings and Construction Land of 1958 (“the 1958 Nationalisation Act”) had indeed provided that residential buildings conforming to certain criteria were nationalised and transferred into social ownership by its mere entry into force (ex lege), it had also required the authorities to issue individual decisions determining which buildings had been nationalised under that Act. Thus, in the absence of an individual decision issued in respect of the building in question, the court concluded that it had not been nationalised.
Following an appeal by the plaintiffs and the intervener, on 16 December 2003 the Zagreb County Court (Županijski sud u Zagrebu) reversed the first-instance judgment and ruled for the plaintiffs. It held that under the 1958 Nationalisation Act all residential buildings conforming to the criteria set forth in that Act had been nationalised ex lege and that the individual decisions to be issued by the authorities had only been of a declaratory nature. Thus, the failure of the Communist authorities to issue such a decision in the applicant’s case did not mean that the building in question had not been nationalised. The relevant part of the County Court’s judgment read as follows:
“The gist of the dispute between the parties is whether the building [in question], in which the plaintiffs were holders of specially protected tenancy in respect of the flats in it, could be considered nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act].
...
The first-instance court correctly found, given the absence of a decision on nationalisation of the said building (...), that as a preliminary issue it had to be determined whether the provisions of [the 1958 Nationalisation Act] could be applied to the building in question.
Relying on section 12 of [the 1958 Nationalisation Act], the first-instance court established beyond dispute that the building at issue has more than two flats or three small flats, as it did at the time the Act had been passed, and that [the Act] accordingly applied to it.
...However, the first-instance court is of the view that a decision on nationalisation should also have been rendered in order to establish which building or part of a building was nationalised, [which meant that] ‘those buildings and parts of buildings in respect of which the competent authority did not establish that they were nationalised – in a decision rendered in the proceedings prescribed by [the 1958 Nationalisation Act] – were not nationalised.’
This view of the first-instance court is incorrect, primarily because it contradicts section 8(1) of [the 1958 Nationalisation Act].
Section 8(1) of that Act expressly provided that buildings, parts of buildings and construction land passed into social ownership on the day of [its] entry into force.
Therefore, what is important is the date of the entry into force of [the 1958 Act] and not the delivery of a decision.
On the day of the Act’s entry into force all immovable property to which [it] was applicable was by the operation of law nationalised and became social property. [Accordingly], from that date the former owners were no longer able to exercise any prerogatives of an owner in respect of those buildings, and the decisions issued in implementation of that Act were of a declaratory character.
...
Therefore, the fact that a certain immovable property was nationalised by the operation of law on the day of the entry into force of [the 1958 Nationalisation Act], is not altered by the fact that a potential decision on nationalisation was not issued or executed in the land register, or even by the fact that, as in the present case, the property itself was not recorded in the land register.
...
As regards the arguments raised in reply to the appeal, it should also be said that even though the legal system of the Republic of Croatia no longer recognises social ownership, for certain legal relations derived from social ownership it is sometimes still necessary to interpret provisions of statutes enacted [during the Communist regime]. This does not mean that nationalisation is being carried out retroactively, because, as already stated above, it occurred in 1958, on the day of the entry into force of [the 1958 Nationalisation Act].
However, the protection of the rights of [third] persons acquired in the implementation of that and other statutes enacted in that period depends on their correct interpretation. In the present case that means protection of the rights of plaintiffs who acquired specially protected tenancy of (and thereby the right to purchase) the flats [located] in the building [in question].”
On 17 February 2005 the applicant lodged a constitutional complaint against the second-instance judgment alleging violations of her constitutional rights to a fair hearing and ownership. On 17 May 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her complaint. The relevant part of the Constitutional Court’s decision read as follows:
“Article 48 paragraph 1 of the Constitution provides:
The right of ownership shall be guaranteed.
The Constitutional Court protects the right of ownership at the constitutional level in a manner that it prevents restriction or taking of that right by the state authorities, unless a restriction or taking is provided for by law.
The Constitutional Court, having regard to the reasons [adduced by] the second-instance court ..., finds that the constitutional guarantee [of ownership] was not breached.
The provision of section 50 paragraph 1 of the Constitution, which provides that ownership may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value, is not relevant in the present case because it [the case] concerns [a] fact which occurred on 26 December 1958.”
The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette of the Republic of Croatia nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2008 and 38/2009), which entered into force on 1 January 1997, reads as follows:
Chapter 4.
“(1) The acquisition, modification, legal effects or termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions...
(2) The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of the rules applicable at the moment of the acquisition, modification or termination of those rights or of the legal effect thereof.
(3) ...”
The relevant provisions of the Act on Nationalisation of Rental Buildings and Construction Land (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/1958 – “the 1958 Nationalisation Act”), which entered into force on 26 December 1958, provided as follows:
I. GENERAL PROVISIONS
Section 8
“(1) Buildings, parts of buildings and construction land nationalised by this Act shall become [that is, be transferred into] social property on the day of its entry into force.
(2) A decision of the competent authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ..., shall determine which objects are nationalised by this Act.”
II. OBJECT OF NATIONALISATION
1. Residential buildings and special parts of residential buildings
Section 12
“On the day of the entry into force of this Act the following [property] shall be nationalised:
1) residential buildings, that is, privately owned buildings with more than two flats or with more than three small [two-room] flats;
2) ...”
The Supreme Court has consistently held that the nationalisation of property falling within the scope of the 1958 Nationalisation Act had occurred by the operation of law (ex lege), that is, by the Act’s mere entry into force on 26 December 1958, and that the decisions issued pursuant to its section 8(2) had had been merely declaratory. Accordingly, the absence of such a decision or the failure of the competent authorities to record in the land register that the property had been transferred into social ownership had been of no relevance (see judgments in cases nos. Rev-2760/99-2 of 24 January 2002, Rev-557/02-2 of 18 February 2003 and Rev 698/05-2 of 7 December 2006 and decision no. Rev-2018/1996-2 of 23 April 2002).
The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette of the Republic of Croatia nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and spouse), to seek under certain conditions either restitution of or compensation for appropriated property.
Section 2(1) provides that former owners shall have the right to restitution of, or compensation for, property appropriated on the territory of the Republic of Croatia on the basis of legislation listed in that section, including the 1958 Act on Nationalisation of Rental Buildings and Construction Land.
Section 3 provides that former owners shall also have the right to restitution of, or compensation for, property appropriated by judgments, decisions, rulings or other acts issued by military or civilian authorities from 15 May 1945 until the enactment, or in the implementation of legislation listed in section 2 of the Denationalisation Act, as well as for property appropriated without a legal ground or without basis in any legislation.
Section 22 of the Denationalisation Act provided that nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats. Section 22 reads as follows:
“(1) Unless they were appropriated by means of confiscation, the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners.
...
(3) The former owner shall have the right to compensation and the tenant [i.e. the holder of a specially protected tenancy] shall have the right to purchase the flat.”
Section 65(3) provides that the former owners have to lodge their requests within six months from the Act’s entry into force (that is, by 1 July 1997). Section 65(4) provides that requests submitted after that date shall be declared inadmissible, resulting in the loss of all rights under the Denationalisation Act.
Section 67, which stipulates what documents should be enclosed with the request of the former owner, prescribes that such a request should be accompanied by, inter alia, the act whereby the property was transferred into state or social ownership (“akt o podržavljenju, odnosno podruštvovljenju imovine”) as well as an extract from the land register containing all entries from the date the property was transferred into state or social ownership.
Section 73 provides that if in the administrative proceedings for restitution of, or compensation for, property appropriated during the Communist regime a dispute arises between the parties as regards facts on which a certain right of theirs depends, or as regards the existence of a right, the competent administrative authority shall stay the administrative proceedings and instruct the parties to bring a civil action or institute other proceedings before the competent authority.
In interpreting the Denationalisation Act the Administrative Court held that the six-month time-limit stipulated in its section 65(3) was of a substantive-law nature (decision no. Us-10020/1999 of 27 June 2002) and preclusive in its character (decision Us-12303/1999 of 31 October 2001), meaning that after its expiry a former owner lost his or her right to restitution of or compensation for property appropriated during the Communist regime.
In its decision no. Us-5564/200 of 19 April 2001 the Administrative Court held that the former owner was entitled to obtain compensation for property appropriated during the Communist regime even if the decision on nationalisation had never been recorded in the land register and he had remained recorded as the owner of the nationalised property.
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows:
Section 144(1) provides that if the authority before which the administrative proceedings are pending finds that the case cannot be decided without deciding an issue the resolution of which is within the competence of a court or other authority (preliminary issue), it may decide on that issue itself or stay the administrative proceedings until the competent authority resolves it.
Section 249 provides that administrative proceedings that ended in a definitive decision may be reopened if, inter alia, the contested decision is based on a preliminary issue which the competent authority later resolved differently in important aspects.


ITEMID: 001-105213
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FEJZULLA AND MAZREKU v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicants, Mr Genci Fejzulla (“the first applicant”) and Mr Jonuz Mazreku (“the second applicant”), are Albanian nationals who were born in 1970 and 1953, respectively and they live in Fier, Albania. The first applicant, who is the second applicant’s nephew, also has Italian citizenship. They are represented before the Court by Mr M. Vujik and Mr E. Milanov, lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 January 2005 the public prosecutor filed an indictment with the Skopje Court of First Instance (“the trial court”) charging the applicants and Mr R.A., Mr I.N. and Mr P.G. with drug trafficking. According to the indictment, on 12 December 2004 the first applicant and Mr R.A. had bought 18.95 kg of heroin from a certain Mr Dz.N. in Istanbul, Turkey. After the drugs had entered the respondent State, they had been handed over to Mr R.A. so that he could take them to Albania. On 19 December 2004 the applicants, together with Mr R.A., had arrived at a car park near the Skopje Fortress. Mr I.N. and Mr P.G. had also arrived and had loaded the drugs into Mr P.G.’s truck. Seventeen cakes of heroin had been stored in the spare tyre and twenty-one cakes had been put in a special compartment in the front of the truck. The charges were based, inter alia, on an expert opinion of 20 December 2004, three search reports, seven certificates for temporarily seized objects, and a list of passengers (“the list”) indicating the names of the first applicant and Mr R.A. as having travelled in a bus from Istanbul to Skopje on 13 and 14 December 2004. The list had been sent by border police on 20 December 2004 to the Ministry of the Interior (“the Ministry”), as was the case with a special report, no.10.2.3-5305 of 20 December 2004, produced by the Ministry. According to the latter, on 19 December 2004 the Ministry had requested (request no.20.4-21558), and the public prosecutor had ordered, an audio-visual recording of the car park. The recording had been made on that date between 11 a.m. and 3.55 p.m. Two digital video cameras and one digital photo camera had been used.
In the proceedings before the Court, the Government submitted a copy of the Ministry’s request no.20.4-21558 of 19 December 2004, according to which the Ministry had requested that the public prosecutor authorise the audio-visual surveillance because it believed that a significant quantity of heroin was to be trafficked and prepared for transportation outside the respondent State. For that purpose, unidentified persons had been expected to arrive at the car park in a vehicle with Albanian car plates and meet with other unidentified persons. They also submitted another report by the Ministry dated 20 December 2004 (report no.10.9-01/350), according to which the total duration of the video of the car park recorded with both cameras was sixty-two minutes and thirty-three seconds. This report was admitted in evidence in the domestic proceedings. They also submitted a copy of the search report of the truck dated 19 December 2004. That search had been ordered by an investigating judge and had been attended by Mr P.G. and two witnesses.
At a hearing on 4 March 2005, the first applicant stated that he had not met Mr R.A. in Istanbul, as alleged by the prosecution, but rather on the bus while travelling to the respondent State. He had never met him before then. On that occasion, they had discussed the possibility of trading coffee machines. For that reason, he had gone to Skopje with the second applicant, who was a taxi driver. He had not told the second applicant the reason for, or the duration, of his stay in Skopje.
The second applicant stated that he had gone to Skopje at the request of the first applicant so that the first applicant could discuss business matters with a third person. The first applicant had told him that their stay would be short, a day or two. He denied that he had known Mr I.N. and Mr P.G.
Mr P.G. stated that he had not known, and had never seen, the applicants before.
On 18 March 2005 the trial court found the defendants guilty and sentenced them to a prison term. The second applicant received the shortest sentence (five years’ imprisonment). All the other defendants, including the first applicant, were sentenced to eight years’ imprisonment. An expulsion order of indefinite duration (казна протерување засекогаш) was also issued against the applicants. Mr R.A. and Mr I.N. were convicted in absentia because they had escaped from the car park and had not been found since. The applicants had had no prior criminal records in the respondent State.
The trial court found that the defendants had acted in concert, as described in the indictment. It established that on 13 December 2004 the first applicant and Mr R.A., having bought the heroin from Dz.N., had arrived in the respondent State on a bus from Istanbul. The list supported that finding. The first applicant had continued on to Albania. On 17 December 2004 the applicants had arrived in Skopje. During their stay, they had met up with Mr R.A. and Mr I.N. several times. Mr P.G. had arrived in Skopje with his truck. On 19 December 2004 he had met up with Mr I.N. at a previously determined place. As already agreed upon, all the defendants met at the car park near the Skopje Fortress, where Mr I.N. and Mr P.G. had loaded the drugs into the latter’s truck, as described above. After Mr P.G. had left the scene, the remaining defendants had embraced each other and had left, satisfied with the job done. The applicants’ car had been stopped by police upon leaving the city. These facts were established, inter alia, on the basis of a VHS tape of the video recording of the car park on 19 December 2004. In the proceedings before the Court, the applicants submitted a copy of the VHS tape used in court. The total length of the video material recorded on the car park was sixty-three minutes and twenty seconds.
The trial court rejected the applicants’ denial that they had been involved in the crime. It further rejected their arguments that a purely visual recording without sound could not be relied upon to establish the facts: the court explained that it had been impracticable to obtain an audio recording.
The applicants appealed against this decision, arguing that, inter alia, there had been no evidence supporting the trial court’s opinion that the first applicant had bought the heroin in Turkey and that the defendants had acted in concert. They stated that the visual recording, as the only evidence on which their conviction rested, had been incomplete and inaccurate. They further reiterated that there had been no audio recording, as required under section 142-b § 1 (3) of the Criminal Proceedings Act, which consequently made the recording inadmissible.
At a public session held on 4 July 2005, the Skopje Court of Appeal allowed the applicants’ appeal and quashed the trial court’s decision, which it found to have been inconsistent and unreasoned. It also held that the video material had not been properly admitted in evidence.
At the new trial, the applicants reiterated their objections concerning the credibility and probative value of the video material recorded on the VHS tape. In this connection, they argued that there had been time gaps and interruptions in the video and requested that the trial court admits the original video material in evidence. The court refused this request and said that there was no doubt that the video material recorded on the VHS tape was identical to the original video material recorded by the digital cameras. The applicants further argued that the recording had been unlawful because it had been authorised by the public prosecutor, instead of by an investigating judge, on the basis that the Ministry had known the identity of the possible perpetrators (see section 142-d § 3 of the Criminal Proceedings Act). In this connection the court allowed the applicants’ request and admitted the public prosecutor’s order for the audio-visual recording of the car park (order KON.br.5530/04). According to the order, the recording would last twenty-four hours and be stopped should the identities of the suspects be discovered. The court, however, refused to admit the Ministry’s request no.20.4-21558 of 19 December 2004 and said that it was irrelevant to the validity of the order.
On 17 October 2005 the trial court convicted the applicants of the same offence and imposed the same sentences and expulsion orders as before. Relying on the public prosecutor’s order, the court rejected the applicants’ arguments that the video material had been unlawfully obtained. Noting the lack of synchronisation between the video cameras used for the recording, the court stated that the time gaps and interruptions in the video material had not affected the credibility of the video evidence. It further referred to a discrepancy in the applicants’ statements given during the trial. It rejected their arguments that they had been in a restaurant with Mr R.A. at the time when the drugs had been loaded into the truck, as there had been no such place in the vicinity of the car park. Even if they had been in a restaurant, the nearest one was located far away from the car park and would have required the applicants to walk for a considerable period of time, which the court found unreasonable given the weather conditions at the relevant time. Lastly, and for the reasons provided in its first decision, the court rejected the applicants’ complaints regarding the absence of audio recording.
The applicants appealed arguing that, inter alia, the trial court had refused to admit in evidence the original video material, which the applicants had sought to have admitted so that light could be shed on the doubts concerning its credibility. They also complained about the refusal to admit the Ministry’s request of 19 December 2004 that prompted the public prosecutor’s order, arguing that this was crucial for establishing the lawfulness of that evidence. The public prosecutor also appealed against the decision.
At a public session on 27 February 2006, the Skopje Court of Appeal allowed the public prosecutor’s appeal and increased the applicants’ sentence: the first applicant’s sentence was increased to ten years’ imprisonment and the second applicant’s sentence was increased to seven years’ imprisonment. It dismissed the applicants’ appeal, finding no grounds to depart from the established facts and the reasoning given by the trial court. It stated that the trial court had examined the VHS tape and had confirmed its credibility by watching it and by describing the events as filmed.
On 16 May 2006 the applicants lodged an appeal with the Supreme Court on points of law (барање за вонредно преиспитување на правосилна пресуда), in which they reiterated their complaints that their conviction was based on inadmissible evidence namely, the VHS tape, whose credibility and lawfulness they challenged. They further complained that court transcripts in the case file had been modified after the trial and did not correspond to the copies in their possession.
In a decision of 20 December 2006, the Supreme Court dismissed the applicants’ appeal and upheld the lower courts’ decisions. It did not have jurisdiction to consider the complaints about the court transcripts and, otherwise it adhered to the reasons given in the lower courts’ decisions of October 2005 and February 2006 respectively. The decision was served on the applicants on 9 February 2007.
On 11 April 2007 the applicants complained to the Judicial Council (Судски Совет) that modifications had been made to the transcripts. Having examined the case file and interviewed the trial judge, the Judicial Council, in a letter of 3 December 2007, informed the applicants that there had indeed been certain modifications, which had concerned only structure and not content. In the absence of any evidence, no responsibility for the amendments could be attached to the trial judge.
As regards the modification of the transcripts, the Organised Crime and Corruption Department of the Public Prosecutor’s Office, acting upon the applicants’ request, opened a file. No decision as to any prosecution has yet been taken.
Under section 42 § 2 (2) of the Act, in respect of criminal offences subject to automatic prosecution by the State, the public prosecutor can order the use of a special investigative technique in pre-trial proceedings under the conditions and in the way specified by law.
Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia, an organised group. Secret surveillance and audio-visual recordings are among the permitted special investigative techniques (section 142-b § 1 (3)).
Section 142-c § 1 provides that information, documents and objects obtained by means of a special investigative measure may be used as evidence in criminal proceedings.
Under section 142-d § 3, at the pre-trial stage, the use of special investigative techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown.
Under section 142-e § 4 of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or contrary to the Act.
Section 142-f §§ 2 and 3 of the Act provide that, inter alia, the Ministry shall prepare, after the expiration of the period within which a special investigative technique was used, a report and shall submit it to the public prosecutor if the order for the technique used was issued by the latter.