Professional Documents
Culture Documents
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.
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).
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 thirdinstance 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
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
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.
10
Andr Wampach
Deputy Registrar
Isabelle Berro
President