CASE OF STOIMENOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

1. The case originated in an application (no. 17995/02) 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 Macedonian national, Mr Jordan Stoimenov (“the applicant”), on 6 September 2001.
2. The applicant, who had been granted legal aid, was represented by Mr P. Edrovski, a lawyer practising in Kočani. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
3. The applicant complained, in particular, that the principle of equality of arms had been breached as the national courts had convicted him on the basis of, inter alia, an expert opinion provided by the Forensic Science Bureau at the Ministry of the Interior (“the Ministry”) that had set in motion the proceedings against him.
4. On 21 October 2005 the Court decided to communicate the complaint concerning the alleged breach of the principle of the equality of arms to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Jordan Stoimenov who was born in 1963 and lives in Vinica, in the former Yugoslav Republic of Macedonia.
6. On 30 January 2000 the Ministry lodged with the public prosecutor a criminal complaint against the applicant and four other persons for the unauthorised production of, and trade in, drugs and narcotic substances, which was an offence under section 215 of the Criminal Code.
7. On 28 January 2000 the Forensic Science Bureau ( Управа за криминалистичка техника) (“the Bureau”) at the Ministry drew up an expert report ( no. X-121/2000 ) on the quality of poppy-tar that had been confiscated from Mr I.P. According to this opinion, all 23 cakes of poppy-tar contained substances which indicated that it was opium.
8. On 30 January 2000 another expert opinion ( no. X-122/2000 ) was issued concerning the quality of 12 cakes of poppy-tar that had been confiscated from Mr M.
9. Both expert opinions were given by the same expert at the Bureau, were almost identically worded and provided succinct information about the technique used to determine the composition of the poppy-tar and the conclusion that it was opium. They read, inter alia, as follows:
“... [S] everal tests were carried out on the samples of the substance. Positive results were received as to the existence of alkaloids ... A chromatography analysis was made of the samples to determine the chemical composition of the substance. Samples of several alkaloids from our collection and a sample of opium were used for comparison ... The analysis of the chromatogram revealed that it was identical to that of the opium, i.e. that the analysed substance contained several alkaloids ... The analysis led to the conclusion that the unidentified substance was opium.”
10. According to depositions taken on 30 January 200 0 in the pre-trial proceedings, the applicant stated, inter alia :
“ ... When I was a child, I heard from my grandmother and grandfather that they used to have in their possession poppy -tar which they used for medicinal purposes. Mr D. [ the third accused ] asked me on several occasions whether they still had any ... I went to see Mr M. [ the first accused ], my uncle, and told him about this. We both searched the cellar in my grandfather's house where my uncle used to live. We found about 12 kg of poppy-tar in a plastic bag ... I gave the bag to Mr D ... The agreement was to divide the money from the sale of the poppy-tar into three parts if Mr D. sold it. He said that he could sell it for 30,000 German marks (DEM) ... Some time later Mr D. said that the poppy-tar was of poor quality, as it had been mixed with soil and had [therefore] been difficult to sell. I asked him to return it if he could not sell it so that I could put it back where it came from. However, Mr D. did not return the poppy-tar ... Once I visited his house, but he was not there ... Mr M. did not know that there was poppy-tar in the cellar. The idea to search for it was mine and I was incited to do so by Mr D ... ”
“ ... Jordan [the applicant] told me that he had some 40-50 year old poppy-tar and asked me if I could find a buyer ... He said that the price was DEM 40,000 ... After a while I met with Mr M.G. [ the fourth accused ] and asked him whether he could find a buyer for the poppy-tar ... A week or two later, Mr M.G. came to my house and told me that he could find a buyer and asked me for a sample ... Mr M.G. said the price was too high ... I met Jordan and asked him to take the poppy-tar as there was no one interested in buying it at that price. However, Jordan did not come because of the bad weather: it was snowing. On 27 January 2000 Mr M.G. came to my house and told me that he had found a buyer. On 28 January 2000 Mr M.G. came accompanied by Mr I.P. [ the fifth accused ] ... and said that a buyer from Skopje had offered DEM 2,500 per kg of poppy-tar ... ”
12. On 18 February 2000 the public prosecutor lodged an indictment ( обвинителен акт) with the Kočani Court of First Instance against Mr M., the applicant, Mr D., Mr M.G. and Mr I.P. They were charged with having been in possession in the spring of 1999 of about 14 kg of opium and on 28 January 2000 of offering for sale and selling about 8.7 kg of opium. The charges were based, inter alia, on the statements of the accused in the pre-trial proceedings and the expert opinion no. X-121/2000 dated 28 January 2000.
13. At the trial on 9 March 2000, Mr D.S., the applicant's grandfather stated, inter alia :
“ ... the poppy-tar was collected by my parents and my wife. I cannot say where it was stored. Maybe it was buried; there was a war. It was the period between 1941 and 1955; people said that it was of poor quality. I have never seen the poppy-tar nor do I know where it was stored. I never told Jordan or Mr M. where it was, nor did they ask me about it ... I offered the poppy-tar for sale to the Bilka company, but it turned it down as it was of poor quality. This happened after the Second World War, but I cannot say when exactly ... ”
14. The applicant's representative lodged a request for an alternative expert opinion to be obtained from a scientific institution concerning the quality of the poppy-tar for the following reasons: the Bureau operated within the Ministry, which had lodged the criminal complaint against him; the poppy-tar was old and had been buried for many years; and an authorised organisation had refused to buy it as it was of poor quality. The counsel representing the other persons accused made a like request.
15. At the hearing on 10 March 2000 the court refused the request for another expert opinion. In his concluding remarks the applicant's representative reiterated, inter alia, his arguments about the poor quality of the poppy-tar and about the report drawn up by the Ministry.
16. The same day the Kočani Court of First Instance gave judgment. It found the applicant and the other accused guilty and sentenced them to terms of imprisonment of three to four years. The applicant obtained the longest sentence (four years'imprisonment). All other four defendants received sentences below the statutory minimum for crimes of that kind (5 years) on the ground that they had no previous convictions and some of them were young and/or had not played a crucial role in the crime.
17. The trial court found that the applicant and his uncle Mr M. had found 14.4 kg poppy-tar in the latter's cellar, i.e. opium belonging to Mr M.'s father, who had kept it from the Second World War. They had agreed to keep the opium at Mr M.'s house and to prepare it for sale. Later, the applicant had offered about 8.7 kg of the poppy-tar for sale to the third accused, Mr D ., whose task was to find a further buyer. Then Mr D. and the fourth accused, Mr M. G., had checked the quality of the opium and given it to the fifth accused, Mr I. P., whose task had been to sell the drugs to Mr N.N., an unidentified final buyer from Skopje. As Mr I. P. feared detection, he had tried to escape and had thrown the bag with the opium out of his car. He was later arrested by the police and the bag containing the opium was found.
18. The court found that the accused had acted in concert, namely that the applicant had firstly found the opium and then offered it to Mr D., who had offered it to Mr M. G. The opium was finally offered for sale to Mr I. P., the fifth accused. The court made reference in its decision to the statements of the applicant and the other accused in the pre-trial proceedings concerning their roles in the crime. It also referred to the applicant's statement at the hearing, but disregarded it as self-serving. The testimony of several witnesses and items of real evidence were also taken into account, along with the expert opinions nos. X-121/2000 and X-122/2000 provided by the Bureau.
19. The court held that the poppy-tar, a term used by the accused, was in fact opium, the production of and trade in which was classified as a criminal offence. It based its findings entirely on the written expert opinion provided by the Bureau, stating inter alia :
“ ... the court established that it was a psychotropic substance on the basis of the written evidence, namely the expert opinions nos. X-121/2000 and X-122/2000 submitted by the Bureau, in which it was definitely indicated that it was opium containing several alkaloids ... ”
20. It noted that the Bureau was a state body authorised to perform such expert examinations and that section 234 ( 2 ) of the Criminal Proceedings Act did not prohibit it from providing such an expert opinion. It further stated:
“ ... The court disregards the defence's argument that the opium was of poor quality i.e. what its quality and [opium] percentage was, because the expert report undoubtedly established that it was opium containing all the necessary substances to be considered a psychotropic substance ... ”
21. In his appeal, the applicant complained, inter alia, of the trial court's refusal to order an alternative, independent analysis of the quality of the poppy-tar. He claimed that it was not a type of opium prohibited by law, but poppy-tar that had been buried for a long time and that moisture was known to destroy its morphine content. In support of his arguments about the quality of the poppy-tar, he noted that after the Second World War its owner, Mr M.'s father, had been unable to sell it to an authorised buyer because it was of such poor quality. As it had not been properly stored its quality had deteriorated over time. He considered that a chemical analysis was necessary to determine the quality of the poppy-tar and proposed an institution which in his opinion had the equipment necessary to make the required analysis. He also complained that the expert examination of the opium had been performed by the Ministry which had then brought the criminal charges against him.
22. The applicant also argued that the offence had been set up by a police agent provocateur and would never have been committed without his intervention (he claimed that the unidentified final buyer N. N. was that agent). He further argued that he had been wrongly convicted as he had voluntarily called off the sale of the opium at one point, when he had changed his mind and asked the third accused to give him the poppy-tar back. He also appealed against sentence.
23. At a public hearing held on 14 June 2000 the Štip Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. It found that the lower court had not erred in refusing the applicant's request for an alternative expert examination of the quality of the drug, as the expert opinion provided by the Bureau was unambiguous. It also noted that it was known that the older the poppy-tar, the better it was for opium use. It further stated that the expert examination by the Bureau had been carried out properly and that the lower court had relied entirely on the Bureau's report and had therefore dismissed the applicant's request for an alternative examination by another institution.
24. The Court of Appeal also found that although the identity of the final buyer of the opium had not been established, it was irrelevant to the applicant's conviction : he had been convicted for having the opium in his possession and offering it for sale. It did not accept the applicant's assertion that he had decided not to proceed with the offence, finding that the lower court had correctly based its findings on the applicant's statements in the pre-trial proceedings in which he had described the whole event and had made a confession. It also found that the applicant had failed throughout the proceedings to put forward any evidence in support of his allegations.
25. In a request to the Supreme Court for extraordinary review of a final decision ( барање за вонредно преиспитување на правосилна пресуда), the applicant referred to the complaints he had already raised in his appeal.
26. On 12 April 2001 the Supreme Court dismissed the applicant's request for extraordinary review and upheld the lower courts'decisions. It found that the lower courts had not erred in establishing the facts and evaluating the evidence concerning the applicant's assertion that he had decided not to proceed with the offence.
27. As to the applicant's complaint that his defence rights had been violated as the trial court had refused to order an alternative expert examination of the quality of the poppy-tar, the Supreme Court stated:
“ ... such complaint is ill-founded because the trial court could reasonably establish on the basis of the expert opinion provided by the Ministry of the Interior that it was opium of good quality. There were no doubts in the expert opinion that would have warranted ordering a fresh examination or an opinion by other experts. The expert opinion submitted by the Ministry of the Interior does not contain any shortcomings or deficiencies which would raise reasonable doubts as to its validity ... ”
28. On 12 April and 2 November 2001 the Supreme Court dismissed the applicant's request for extraordinary mitigation of the penalty imposed ( барање за вонредно ублажување на казната).
29. The Government have also indicated that on 29 May 2002 the Supreme Court rejected a second request by the applicant for extraordinary review of the final decision.
1. Criminal Proceedings Act ( Закон за кривичната постапка)
30. In accordance with section 234 ( 1 ) and ( 2 ) of the Criminal Proceedings Act (“the Act”), an expert examination is requested by a written order of the body which carries out the procedure. The order specifies the facts for which the examination is required and the person appointed to perform it. If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, is as a rule entrusted to that institution or body. The institution or body appoints one or more experts to carry out the expert examination.
31. Section 243 of the Act provides that the opinion of other experts must be ordered if the expert opinion already given contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by referring to the experts who gave the opinion.
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
32. The applicant complained that the courts had refused his request for an alternative expert examination concerning the quality of the poppy-tar and that they had based their decisions on the expert reports produced by the same Ministry as had brought the criminal charges against him. He further complained that he had been incited by a police agent acting as an agent provocateur to commit the offence of which he was later convicted. He also alleged that the courts had refused to accept that he had decided to call off the sale of poppy-tar. He alleged procedural unfairness, in breach of Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
1. The principle of equality of arms with regard to expert evidence
33. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The arguments of the parties
34. The Government objected to the applicant's complaint on two grounds : first, that the expert opinions provided by the Bureau could not be contested solely on the ground that the Ministry had subsequently filed criminal charges against the applicant and, second, that in order to justify a further expert report, the applicant should have substantiated his criticism of the reliability of the Bureau's opinion, but had failed to do so.
35. They submitted that the Bureau had been equipped to provide such expert opinions and had a statutory basis in the Criminal Proceedings Act (see paragraphs 29 and 30 above). They further maintained that it was the practice of all the national courts to order the Bureau to carry out certain expert analyses, even in cases where the criminal complaint had not been brought by the Ministry. The Government averred that there had been no grounds for calling into question the expert opinion provided by the Bureau as it was the public prosecutor who decided whether to accept criminal complaints filed by the local police. Moreover, the Ministry had lodged the criminal complaint against the applicant in accordance with its statutory duty to prosecute certain types of offence. The complaint was corroborated, inter alia, by the two expert opinions (nos. X-121/2000 and X-122/2000 ) that had been provided by the Bureau on 28 and 30 January 2000, respectively. The first-instance court had upheld the public prosecutor's request and ruled them admissible in evidence. It did not order an alternative expert examination as it found no grounds for questioning their reliability. It had jurisdiction to assess the probative value of the evidence.
36. The Government further submitted that none of the courts which had examined the case had found any inconsistencies or deficiencies in the expert opinions. They argued that the applicant had merely asserted that the opium had lost its quality because of its age, but had failed to provide any expert analysis or statement by another expert to support his allegation. The Government concluded that it was irrelevant who had carried out the expert examination, as it was undeniable that poppy-tar was a drug and that it had not played any role in the applicant's conviction.
37. The applicant submitted that the expert opinion provided by the Bureau had fallen foul of the requirements for a proper expert opinion : it did not explain what kind of “analysis” had been made; what method had been used or the percentage of the alkaloids found in the poppy-tar. He further referred to the trial court's failure to examine the expert who had provided the opinion, despite his alleged request. Mr D.S.'s statement at the trial had cast doubt on the quality of the poppy-tar and supported the request for an alternative expert opinion. In addition, the Ministry had filed the criminal complaint against him and at the same time submitted the expert opinion on the quality of the poppy-tar. Lastly, he disagreed with the Government's argument that it was irrelevant who carried out the examination of the quality of the poppy-tar, as in his submission it could be considered a drug only if properly produced and stored, which in his case it had not been.
38. The Court notes at the outset that the expert opinion provided by the Bureau was the only report that existed on the quality of the poppy-tar. In particular, the applicant had no possibility himself to submit a private expert opinion, since the cakes of poppy-tar had been confiscated by the authorities and he had no possibility of access to them. The Court furthermore cannot agree with the Government's assertion that the quality of the poppy-tar had been irrelevant for the applicant's conviction, as it concerned the corpus delicti of the offence. The Bureau drew up the expert report whose transmission to the public prosecutor set in motion the criminal proceedings against the applicant (see paragraph 12 above ). As the expert opinion supported the prosecution's case and was used in evidence against the applicant, the defence requested the national courts to appoint another expert to determine the quality of the poppy-tar. This request was based on two grounds: first, that the disputed opinion subsequently set in motion the criminal proceedings against the applicant and, second, that the analysis had not been carried out properly. The courts refused the applicant's request as they found the Bureau's expert opinion conclusive.
39. The Court further observes that it was not a court which appointed the Bureau to carry out the analysis of the poppy-tar in accordance with section 234 of the Act (see paragraph 30 above). It was the Ministry which had firstly drawn the expert report on its own motion to substantiate the criminal complaint it had lodged with the public prosecutor. The Bureau cannot, therefore, be considered as a court-appointed expert.
40. As stated in the Court's case-law, it is easily understandable that doubts should arise, especially in the mind of an accused, as to the neutrality of an expert when it was his /her report that in fact prompted the bringing of a prosecution (see Bönisch v. Austria, judgment of 6 May 1985, Series A no. 92, § 32). Such apprehensions may have a certain importance, but are not decisive. What is decisive is whether the doubts raised by appearances can be held objectively justified (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, § 44). Having regard to the particular circumstances of the case, appearances suggest that the opinion submitted by the Bureau was more akin to evidence against the applicant used by the prosecuting authorities rather than a “neutral” and “independent” expert opinion.
41. The Court reiterates that the principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. It requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004 ‑ III and the references cited therein).
42. The Court finds that this principle was not complied with in the instant case as the applicant's repeated requests for an alternative expert examination were refused. In addition, it notes that there were certain arguments as to the quality of poppy-tar. In this respect, it considers noteworthy that the Court of Appeal made an assumption not based on the expert report (see paragraph 23 above). As the applicant was unable to challenge the report of the Bureau as evidence submitted by the public prosecutor, the Court considers that he was deprived of the opportunity to put forward arguments in his defence on the same terms as the prosecution.
43. The Court accordingly finds that there has been a breach of Article 6 § 1 of the Convention.
2. The alleged involvement of an agent provocateur
44. The Court observes that there is nothing in the case file to suggest that there was any involvement of a police officer acting as an agent provocateur or that without such intervention the offence would not have been committed. The national courts did not rely on any evidence or statements given by anonymous sources such as informants or agents provocateurs (see a contrario, Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166, § 44; and Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV, § 38). The Court further notes that even assuming that Mr N.N., the final buyer of the poppy-tar, was an undercover agent, it cannot be concluded that his involvement had any impact on the applicant's conduct. Nor could he have exercised an influence such as to incite the commission of the offence, as the applicant had already been involved at an earlier stage. In addition, the applicant did not even contact Mr N.N.: his role was over before the poppy-tar finally reached the alleged agent provocateur.
45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant's alleged decision to call off the sale of poppy-tar
46. In so far as the applicant's complaint may be understood to concern the assessment of the evidence in this respect and the result of the proceedings before the domestic courts, the Court reiterates that, it is not within its province to substitute its own assessment of the facts for that of the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, 29, ECHR 1999 ‑ I). According to the Court's established case-law, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them (see the Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46).
47. In the present case, the Court notes that the applicant was given sufficient opportunity to put forward his arguments concerning his purported decision to call off the sale off poppy-tar and that these arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of reasoning which appears consistent and devoid of any arbitrariness.
48. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
50. The applicant claimed 8,337 euros (EUR) in respect of pecuniary damage for unpaid salary plus interest between October 2001 and June 2005. He further claimed EUR 220,000 in respect of non-pecuniary damage for the anguish, fear and humiliation he suffered as a result of his conviction. The applicant's wife, children and parents further claimed EUR 270,000 in respect of non-pecuniary damage for the anguish and humiliation they suffered as a result of the applicant's imprisonment.
51. The Government contested the applicant's claims as unsubstantiated and ill-founded, arguing that there was no causal link between the alleged violation and the damage claimed. In addition, they submitted that finding a violation should in itself constitute sufficient just satisfaction for the applicant who would ultimately be able to request the re-opening of the proceedings on the basis of the Court's judgment. In such proceedings, it would be open to the applicant to seek an order quashing his conviction or an acquittal and he would subsequently be able to claim damages for wrongful conviction.
52. The Court notes firstly that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 before the national courts (see Mežnarić v. Croatia, no. 71615/01, § 43, 15 July 2005 ). It cannot speculate as to what the outcome of the proceedings at issue would have been had the breach not occurred (see Bönisch v. Austria ( Article 50), judgment of 2 June 1986, Series A no. 103, § 11). The Court considers that the evidence available does not establish the existence of a causal link between the violation of the Convention and the pecuniary damage alleged. It therefore rejects the applicant's claim under this head. It further rejects the Government's argument that the applicant's claim for just satisfaction should be decided by the national courts if the proceedings are re-opened, as it cannot speculate on the outcome of any such proceedings.
53. Having regard to all circumstances, the Court awards the applicant EUR 1 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. It rejects the claims for non-pecuniary damage submitted by the members of the applicant's family, as they cannot claim to have the status of victim within the meaning of Article 34 of the Convention.
54. The applicant, who had received legal aid from the Council of Europe in connection with the presentation of his case, also claimed EUR 1, 994. 44 for the costs and expenses incurred before the domestic courts. A fee note based on the scale rates of the Macedonian Bar was produced for the fees of the applicant's representative before the domestic courts. He did not claim reimbursement of the costs and expenses incurred before the Court.
55. The Government contested the applicant's claims.
56. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004 ‑ IV ). Having regard to the fee note submitted by the applicant, the Court finds that EUR 310 related to the lawyer's fees for the preparation of the two requests for extraordinary mitigation of sentence and for an application for a stay of execution of the sentence. As these remedies could not prevent or rectify the violation found or provide the applicant with redress, the Court considers that they were not necessarily incurred; it therefore rejects the applicant's claim under this head. As to the remaining claims, it finds it difficult to assess which costs were incurred in order to seek prevention or redress before the national courts of the violation found by the Court. However, some of the lawyer's fees were undoubtedly expended with a view to obtaining an alternative expert opinion to counter the report provided by the Bureau or to limiting the effects of the violation.