Judge in litigation against administrative courts! The refusal to examine proposed witnesses, the rejection of the requested oral hearing and the inadequate statement of reasons for the judgments violated the right to a fair trial.

JUDGMENT 

Bileski v. North Macedonia 06.06.2019 (no. 78392/14)

see here  

SUMMARY 

Violation of the fair trial by the administrative courts. Reasoning of  court judgments. Denial of examination of important witnesses. Dismissal of the oral hearing of the party.

Alleged co-operation with the security services of the former Communist regime. In 2012, the Fact Verification Commission  found that the applicant had been an “operational liaison” with the former security services in return for promotion, that his collaboration had been conscious and that it had caused harm to others

In order to refute the accusations, the applicant, in order to certify his innocence: (a) sought the examination of witnesses, and in particular of the person who had “confined” him as a secret service partner (who had already made a reversal statement) ) requested an oral and personal hearing before the national courts and (c) challenged all the documents produced as non-genuine and inaccurate.

However, the domestic administrative courts rejected his claims on the ground that the applicant judge had no evidence to substantiate what he claimed, without explaining their refusals and without accepting the oral development of his allegations. The applicant appealed before the European Court of Human Rights for violation of Article 6, arguing that the domestic courts did not allow him to present his case.

The Strasbourg Court found a violation of the fair trial (Article 6) because of the refusal to examine the witnesses proposed, the lack of the oral hearing requested and the insufficient justification of the judgments

PROVISION 

Article 6

PRINCIPAL FACTS 

The applicant, Dragi Bileski, is a Macedonian/citizen of the Republic of North Macedonia who was
born in 1951 and lives in Kičevo (North Macedonia).

The case concerned proceedings brought against him for alleged collaboration with the security
services of the former communist regime. At the end of the proceedings in 2014 his position as a
trial judge was terminated.

In 2012 the Fact Verification Commission found that Mr Bileski had been an “operational liaison”
with the former security services in return for promotion, that his collaboration had been conscious
and that it had caused harm to others. The decision was based in particular on notes from one of his
alleged handlers.

In proceedings before the administrative courts, he challenged both the Commission’s findings and
the authenticity of the documents. He requested that the courts hear oral evidence from the
handler and an expert, namely a university professor and former intelligence officer.

The administrative courts dismissed his claims without examining the proposed witnesses. In 2013
the lower administrative court found in particular that the applicant “had not submitted any
evidence that led to different facts”. In 2014 the Higher Administrative Court upheld that decision,
holding that the alleged collaboration had complied with the statutory qualifying conditions and that
“reports drawn up by handlers are to be regarded as facts”.

Relying in particular on Article 6 § 1 (right to a fair trial / hearing) of the Convention, Mr Bileski
complained he had not been given the opportunity to present his case effectively. In particular, the
courts had not assessed any of the evidence he had proposed, refusing to examine witnesses or hold
an oral hearing, despite repeated requests; nor had they provided sufficient reasons for their
decisions. He had also been given limited access to the security service files.

THE DECISION OF THE COURT …

In the present case, the Lustration Commissions decision was based on documentary evidence about the applicant regarding his alleged collaboration with the former security services. Relying on that evidence, the Commission found that the applicant had collaborated with those bodies as a “secret collaborator, informant or operational liaison” and that that collaboration had satisfied the qualitative criteria specified in the 2012 Lustration Act, namely that it had been “conscious, secret, organised and continuous”, by which “the rights and freedoms [of other people] had been violated on political or ideological grounds … in return for favours in getting promoted”. It is to be noted that the applicant was not involved in the proceedings before the Commission and accordingly could not present any arguments in his defence.

In the ensuing proceedings before the administrative courts, the applicant challenged the authenticity and veracity of the documentary evidence used against him and contested the Commissions findings regarding the alleged collaboration, in particular that it had been conscious, that it had caused harm to third persons and that he had obtained careerrelated favours. In that connection he proposed that the courts hear oral evidence from P.K., the handler who had recognised himself as the author of some of the security-service files relied on by the Commission. In the same vein, he asked that the court examine V.P., a university professor and former intelligence officer, as an expert.

The administrative courts did not hear the proposed witnesses and did not explain why examining them would not have contributed to the establishment of the facts challenged by the applicant. The Administrative Court confirmed the facts established by the Commission by relying solely on the documents against the applicant. It made no reference to the conflicting evidence contained in P.K.s written statement. The Higher Administrative Court confirmed those findings, holding that “reports drawn up by handlers in [such bodies] are to be regarded as facts” . The Court, however, notes that the documents used against the applicant were not from the archives of the Intelligence Service , which was the successor to the State Security Office, the agents of which had drawn up the records in question. Furthermore, and more importantly, P.K., who was the handler to whom the applicant had allegedly provided information about third persons, clearly stated that he had drafted the records “according to his interpretation” and “without [the applicants] knowledge” and that they “… [were] not truthful”  Those elements, in the Courts view, required more detailed scrutiny by the domestic courts. A mere declaration that P.K.s statement would not be taken into account , without enabling that witness to provide first-hand information relevant to the applicants complaints, is not sufficient. Given the particular circumstances of the case, similar considerations apply to the courts failure to hear oral evidence from V.P., an expert. Accordingly, Article 6 of the Convention required the domestic courts to provide a more substantial statement of their reasons rather than simply saying that “[the applicant] had not submitted any evidence that led to different facts” . The Governments own arguments that it had not been necessary for the national authorities to adduce the evidence presented by the applicant  cannot offset that deficiency.

The Court considers that such a state of affairs was detrimental to the exercise of the applicants right to present effectively his case, within the meaning of Article 6 § 1 of the Convention.

In view of the foregoing, the Court is not persuaded that there were any exceptional circumstances that justified dispensing with an oral hearing.

Violation of Article 6 § 1 – on account of the overall unfairness of the lustration proceedings

Just satisfaction: EUR 2,400 (non-pecuniary damage) and EUR 300 (costs and expenses)(echrcaselaw.com).


ECHRCaseLaw

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