Case of Eftimov v. the Former Yugoslav Republic of Macedonia

FIRST SECTION

CASE OF EFTIMOV v. THE FORMER YUGOSLAV REPUBLIC

OF MACEDONIA

(Application no. 59974/08)

JUDGMENT

STRASBOURG

2 July 2015

This judgment will become final in the circumstances set out in Article 44 2 of the

Convention. It may be subject to editorial revision.

EFTIMOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT 1

In the case of Eftimov v. the former Yugoslav Republic of

Macedonia,

The European Court of Human Rights (First Section), sitting as a

Chamber composed of:

Isabelle Berro, President,

Elisabeth Steiner,

Khanlar Hajiyev,

Mirjana Lazarova Trajkovska,

Julia Laffranque,

Paulo Pinto de Albuquerque,

Dmitry Dedov, judges,

and Andr Wampach, Deputy Section Registrar,

Having deliberated in private on 9 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 59974/08) 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 Epaminonda Eftimov (the applicant), on 5 December 2008.

2. The applicant was represented by Ms P. Gieva-Petkova, a lawyer practising in Skopje. The Macedonian Government (the Government) were represented by their Agent, Mr K. Bogdanov.

3. The applicant alleged, in particular, that the criminal proceedings in

which he was convicted had been unfair and lengthy.

4. On 22 November 2012 these complaints were communicated to the

Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1950 and lives in Strumica, where he works

as a surgeon at Strumica Hospital (the hospital).

2 EFTIMOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA JUDGMENT

A. Background of the case

6. On 8 June 1997 the applicant treated Z.R.s broken and injured arm. In the days that followed Z.R. complained of pain in the arm. The applicant,

together with two other doctors and other hospital staff, applied various

treatments and referred Z.R. to the childrens clinic in Skopje. 7. On 11 June 1997 Z.R. was admitted to the childrens clinic in Skopje.

It was discovered that he had a serious bacterial infection; consequently, his

right hand was amputated on 19 June 1997.

B. Criminal proceedings against the applicant

8. On 25 September 1997, an investigating judge of Strumica Court of

First Instance (the trial court), on a request by the public prosecutor, opened an investigation against the applicant. On 19 April 2000 the public

prosecutor lodged an indictment against the applicant for aggravated

medical malpractice ( ). 9. On 10 July 2001 and 13 December 2004 the trial court acquitted the

applicant ( ). Those judgments were quashed by the tip Court of Appeal (the appellate court) on 30 January 2002 and 9 March 2005 respectively. The appellate court on both occasions observed,

inter alia, that the degree of the applicants guilt and consequently, the proper qualification of the criminal offence, had not been correctly

established in the proceedings before the trial court. It further ordered that

the experts opinions be supplemented. 10. On 13 September 2006 the trial court again acquitted the applicant,

finding no grounds that a criminal offence had been intentionally

committed.

11. On 13 December 2006 the appellate court, of its own motion, at a

session in the presence of both parties, re-qualified the charges and

dismissed them ( ) as time-barred. It found that despite its instructions given in the earlier remittal orders, the degree of the

applicants guilt was not correctly established in the proceedings before the trial court. The appellate court concluded that the applicants actions could have been negligent rather than intentional and therefore the criminal

prosecution had become time-barred.

12. On 21 March 2007 the Supreme Court accepted the public

prosecutors request for the protection of legality, and remitted the case to the appellate court. The Supreme Court held that the appellate court, having

re-qualified the charges, established the facts anew without holding a

hearing (). 13. On 8 October 2007 the appellate court held a hearing in the presence

of both parties and again dismissed the charges as time-barred.


14. The applicant and the public prosecutor both lodged appeals before

the Supreme Court. The applicant also submitted observations in reply to

the public prosecutors appeal. 15. On 26 March 2008 the Supreme Court held a session () in

the presence of the public prosecutor. After hearing the public prosecutors oral pleadings, in which she sought a dismissal of the applicants appeal and for the prosecutors appeal to be allowed, relying as well on the parties written submissions, the Supreme Court dismissed the applicants appeal, allowed the public prosecutors appeal, and reversed the appellate courts judgment. The Supreme Court accepted the trial courts findings of facts and law, namely that the imputed offence should be qualified as intentional

aggravated medical malpractice. The Supreme Court concluded that the

applicant was guilty, and sentenced him to one years imprisonment. The applicants representative was served with the Supreme Courts judgment on 19 June 2008, and the applicant himself on 11 July 2008.

16. On 1 April 2009 the applicant started serving the prison term. On

6 October 2009 the trial court replaced the prison sentence with a

conditional discharge. This decision became final on 14 October 2009.

II. RELEVANT DOMESTIC LAW

A. Criminal Proceedings Act (Official Gazette, no. 15/97)

17. Under section 361 (1) and (3) of the 1997 Criminal Proceedings Act

(the Act) ( ), the chair of the adjudicating panel of the appellate court appoints a judge rapporteur. The latter, in cases

involving offences automatically subject to prosecution by the State,

forwards the case file to the public prosecutor, who examines and returns it

without delay. After receiving the case file, the chair sets a date for the

session () of the adjudicating panel. The public prosecutor is notified thereof.

18. Section 362 (1) and (3) of the Act provides for notification of the

date of the appellate courts session to be given, inter alia, to the defendant and his lawyer, if they so request. Such notification may be given even if

there is no such request, if their attendance would contribute to establishing

the facts. The second-instance court may seek additional explanations from

the parties attending the session. The parties may propose that some

documents from the case file are read or that they further develop their

arguments submitted earlier.

19. Section 364 (1) and (2) of the Act provides that the second-instance

court will hold a hearing () only if new evidence needs to be produced or evidence re-produced, or if the case does not need to be

remitted for fresh consideration. The defendant and his or her counsel, the


public prosecutor, the victim and any witnesses or experts to be heard are

summoned to attend the hearing before the second-instance court.

20. Section 381 (1) of the Act foresees special circumstances under

which a second-instance judgment may be appealed against before a third-

instance court, namely the Supreme Court. The appellate courts judgment may be appealed against, inter alia, when the second-instance court has held

a hearing and based its decision on the facts as established anew.

Section 381 (2) further foresees that statutory provisions regarding the

appellate courts session apply likewise to proceedings before the Supreme Court. The Supreme Court however could not hold a hearing.

21. Under section 392 1 (7) of the Act, a case may be reopened if the

European Court of Human Rights has given a final judgment finding a

violation of the human rights or freedoms. The same provision is provided

for in section 449 (6) of the new Criminal Proceedings Act, which entered

into force in 2010 and became applicable after 1 December 2013.

B. Criminal Code (Official Gazette, 37/96)

22. Section 217 (1) of the Criminal Code (the Code) sets out the criminal offence of aggravated medical malpractice and prescribes a prison

sentence of between one and ten years. According to section 217 (3), in

cases of negligence the criminal offence shall be subject to a prison sentence

of between three months and three years.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

23. The applicant complained that the criminal charges against him had

not been determined within a reasonable time.

24. He further complained that he had not had a fair hearing in the

proceedings before the Supreme Court since, unlike the public prosecutor,

he had not attended the Supreme Courts session following which he was convicted and sentenced to a term of imprisonment. He relied on 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 within a reasonable time by [a] ... tribunal ...

A. Admissibility

25. The Government did not raise any objection as regards the

admissibility of these complaints.


26. The Court notes that the complaints under this head are not

manifestly ill-founded within the meaning of Article 35 3 (a) of the

Convention. It further notes that they are not inadmissible on any other

grounds. They must therefore be declared admissible.

B. Merits

1. Complaint about the length of the proceedings

(a) The parties submissions

27. The applicant argued that the criminal proceedings were too long.

28. The Government contested the applicants position. In their view, the length of the proceedings was not unreasonable, given the number of

judgments delivered and the court levels that had examined the case. They

also submitted that three hearings were adjourned due to urgent absence of

the medical experts.

(b) The Courts assessment

29. The Court notes that the proceedings began on 25 September 1997

when the investigation against the applicant was opened (see Nankov v. the

former Yugoslav Republic of Macedonia, no. 26541/02, 42,

29 November 2007). They ended on 19 June 2008 when the Supreme

Courts judgment was served on the applicants representative (see paragraph 15 above). The proceedings therefore lasted ten years and nine

months at three levels of jurisdiction.

30. The Court reiterates that the reasonableness of the length of

proceedings must be assessed in the light of the circumstances of the case

and with reference to the following criteria: the complexity of the case, the

conduct of the applicant and the relevant authorities (see, among many other

authorities, Plissier and Sassi v. France [GC], no. 25444/94, 67, ECHR

1999-II).

31. The Court considers that some complexity arose from the need to

request expert opinions for the purpose of determination of the degree of the

applicants guilt. The Court does not consider that this can alone justify the overall length of the proceedings of almost eleven years (see Nankov 46,

cited above). Moreover, the expert opinions were provided in the context of

judicial proceedings, supervised by a judge, who remained responsible for

the preparation and the speedy conduct of the trial.

32. The Court further observes that it has not been presented with any

evidence that any procedural delays are attributable to the applicant.

33. As for the conduct of authorities, the Court notes that the

investigation lasted for three years (see paragraph 8 above). The case was

then remitted on three occasions (see paragraphs 9 and 12 above). In this

connection the Court reiterates that repeated re-examination of a case


following remittal may in itself disclose a serious deficiency in a given

States judicial system (see Gjozev v. the former Yugoslav Republic of Macedonia, no. 14260/03, 51, 19 June 2008 and Pavlyulynets v. Ukraine,

no. 70767/01, 51, 6 September 2005).

34. In such circumstances, the Court concludes that in the instant case

the length of the proceedings was excessive and failed to meet the

reasonable time requirement (see Nasteska v. the former Yugoslav Republic of Macedonia, no. 23152/05, 36, 27 May 2010).

35. There has accordingly been a breach of Article 6 1 of the

Convention.

2. The applicants absence from the session of the Supreme Court held on 26 March 2008

(a) The parties submissions

36. The applicant argued that, unlike the public prosecutor, he had had

no opportunity to attend the Supreme Courts session of 26 March 2008, although he should undoubtedly have been there, given that a matter of fact,

namely his alleged intention (degree of guilt) to commit the criminal

offence, was under consideration. Since the law (see paragraph 20 above)

did not provide for a hearing before the Supreme Court, this court could

have either confirmed the trial courts acquittal or remitted the case for fresh consideration before the appellate court.

37. The Government stated that at the session of 26 March 2008 the

Supreme Court had neither established new facts nor considered new

evidence, but had decided the case on the basis of the available material.

The Government also argued that neither the applicant nor his defence

lawyer had requested to be notified of any Supreme Court session. The

applicant had been able to argue his position in his appeal and in his

observations in reply to the public prosecutors appeal. The Supreme Court took all his submissions into account.

(b) The Courts assessment

38. The Court reiterates that the principle of equality of arms - one of the

elements of the broader concept of a fair trial - requires each party to be

given a reasonable opportunity to present his case under conditions that do

not place him at a substantial disadvantage vis--vis his opponent. This

implies, in principle, the opportunity for the parties to a trial to have

knowledge of and comment on all evidence adduced or observations

submitted, even by an independent member of the national legal service,

with a view to influencing the courts decision (see Kress v. France [GC], no. 39594/98, 72 and 74, ECHR 2001-VI).

39. Furthermore, a State which has set up courts of appeal or cassation is

required to ensure that individuals amenable to the law shall enjoy before


these courts the fundamental guarantees contained in Article 6 (see Delcourt

v. Belgium, 17 January 1970, 25, Series A no. 11). In this context,

importance is to be attached to, inter alia, the appearance of fair

administration of justice and the increased sensitivity of the public to the

fair administration of justice (see Borgers v. Belgium, 30 October 1991,

24 in fine, Series A no. 214-B).

40. The Court notes that the Supreme Court had jurisdiction to examine

the case as to the facts and the law and to make a full assessment of the

question of the applicants guilt or innocence (see, mutatis mutandis, Ivanovski v. the former Yugoslav Republic of Macedonia (dec.),

no. 21261/02, 29 September 2005, which concerned the jurisdiction of the

appellate court). In this context the Court notes that the Supreme Court only

exercised its statutory powers when it relied on and upheld the facts

established by the trial court. It however decided the parties appeals at a session held in the presence of the public prosecutor only. The date of this

session was communicated to the public prosecutor under section 361 (1) of

the Act (see paragraph 17 above). The public prosecutor attended the

session and submitted an oral statement requesting that the applicants appeal be dismissed and that the prosecutors appeal be accepted. The Supreme Court addressed this statement in its decision. The applicant was

not present, and thus had no opportunity to reply to those representations. In

this connection the Court notes that the applicant did not exercise his right

under section 362 (1) of the Act (see, a contrario, Nasteska 17, cited

above). As a result, he was not informed of the Supreme Courts session. However, that court did not request his attendance although it had such

jurisdiction under sections 362 (1) and 381(2) of the Act (see paragraphs 18

and 20 above), and although a factual issue, namely, the degree of the

applicants intention, was being considered by it. In the Courts view, the applicants failure to request notification should not be held against him, given the statutory inequality that the Act created by providing only the

public prosecutor with a right to be apprised of the appellate courts session automatically, while restricting that right for the accused to a specific

request by him or her to attend. The Government did not provide any

reasonable explanation for this procedural inequality flowing from the Act.

The Court sees no reason why such preferential treatment is offered to the

public prosecutor, which acts as a party to the proceedings and is

accordingly the applicants adversary (see Atanasov v. the former Yugoslav Republic of Macedonia, no. 22745/06, 32, 17 February 2011). Moreover,

given that the factual issue of the applicants intention was under close scrutiny by the Supreme Court, there was an even stronger need to summon

the applicant and give him the opportunity to be present at that courts session on an equal footing with the public prosecutor (see, mutatis

mutandis, Zahirovi v. Croatia, no. 58590/11, 62-63, 25 April 2013).


41. The foregoing considerations are sufficient to enable the Court to

conclude that the public prosecutors presence at the Supreme Courts session of 26 March 2008 afforded her, if only to outward appearances, an

additional opportunity to bolster her opinion, without fear of contradiction

by the applicant (see Borgers, 28, cited above, and Lobo Machado

v. Portugal, 20 February 1996, 32, Reports of Judgments and Decisions

1996-I).

42. In view of the above, the Court considers that there has been a

violation of Article 6 1 of the Convention on account of the lack of

equality of arms in the proceedings before the Supreme Court.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

43. Lastly, the applicant complained that the judges were biased and that

his defence rights had been violated in view of the lengthy investigation. He

further referred to the re-qualification of the charges during the proceedings,

and the public prosecutors specification of the degree of his guilt in the last, closing statement before the appellate court. Under Articles 3 and 8 of the

Convention he complained about the effect the criminal proceedings had on

his life. Finally, he cited Article 13 of the Convention.

44. Having regard to all the material in its possession, and in so far as

these complaints are within its competence, the Court finds that they do not

disclose any appearance of a violation of the Convention as alleged by the

applicant. It follows that this part of the application must be rejected as

manifestly ill-founded, pursuant to Article 35 3 (a) and 4 of the

Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. 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.

A. Damage

46. The applicant claimed 62,982 euros (EUR) in respect of pecuniary

damage. This figure concerned loss of income related to his dismissal from

work as of 1 April 2009 when he started serving the prison sentence until

his re-employment in the hospital in 2011, and damages that the hospital

claimed from him in respect of the compensation that it had paid to Z.R.

The applicant also claimed EUR 20,000 for non-pecuniary damage suffered

in relation to the impugned criminal proceedings.


47. The Government contested the applicants claim as excessive and unrelated to the impugned criminal proceedings. They invited the Court to

consider that the eventual finding of a violation would constitute in itself

sufficient compensation for any damage in the present case.

48. The Court does not discern any causal link between the violations

found and the pecuniary damage alleged; it therefore rejects this claim. On

the other hand, it considers that some non-pecuniary damage must have

been suffered by the applicant, and awards him EUR 3,900 under this head,

plus any tax that may be chargeable.

B. Costs and expenses

49. The applicant also claimed EUR 3,746 for costs and expenses

incurred before the Court for 107 hours of work for the preparation of the

application and representation before the Court. The applicant did not claim

any costs in relation to the domestic proceedings.

50. The Government contested this calculation as excessive.

51. According to the Courts case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown

that these have been actually and necessarily incurred and are reasonable as

to quantum (see Editions Plon v. France, no. 58148/00, 64, ECHR

2004-IV). Regard being had to the documents in its possession and the

above criteria, the Court considers it reasonable to award the applicant the

sum of EUR 1,000 for the proceedings before it, plus any tax that may be

chargeable to him.

C. Default interest

52. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints about the length of the criminal proceedings and

the fairness of the proceedings before the Supreme Court admissible,

and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 1 of the Convention

on account of the excessive length of the proceedings;


3. Holds that there has been a violation of Article 6 1 of the Convention

on account of the lack of equality of arms in the proceedings before the

Supreme Court;

4. Holds

(a) that the respondent State is to pay the applicant, within three months

from the date on which the judgment becomes final in accordance with

Article 44 2 of the Convention, the following amounts, to be converted

into the currency of the respondent State at the rate applicable at the date

of settlement:

(i) EUR 3,900 (three thousand nine hundred euros), plus any tax

that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be

chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amounts at a

rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;

5. Dismisses the remainder of the applicants claim for just satisfaction.

Done in English, and notified in writing on 2 July 2015, pursuant to

Rule 77 2 and 3 of the Rules of Court.

Andr Wampach Isabelle Berro

Deputy Registrar President

Case of Eftimov v. the Former Yugoslav Republic of Macedonia

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