CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 avril 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 28 April 2025   SECOND SECTION Application no. 7870/25 B.G. against North Macedonia lodged on 3 March 2025 communicated on 11 April 2025 SUBJECT MATTER OF THE CASE The application concerns criminal proceedings against the applicant in which he was convicted for sexual abuse of a minor. The applicant, who is 76 years old and suffers from psycho-organic syndrome (a permanent condition that reduced his cognitive capabilities), lived together with his daughter and granddaughter. On 25 October 2021 the applicant was indicted for sexual abuse of a child below the age of 14. It was alleged that on 1 August 2021, in a state of significantly reduced mental capacity on account of his health condition, the applicant had asked E. (a friend of his granddaughter who was 10 years old at the time) whether she had kissed anyone. He then kissed her cheeks and caressed her legs, and asked whether she had a mobile phone so that they could stay in touch and be “secret friends”. The indictment listed as evidence a CD with a recording of E.’s questioning which took place on 3 August 2021, in the presence of the prosecutor, a representative from the relevant Social Work Centre, an expert, the child’s father and a lawyer appointed for the child. The applicant had been initially convicted on the charges, however, on 30   November   2022 the Supreme Court quashed the conviction and remitted the case to the trial court, finding a violation of the defence rights because the recording of E.’s testimony, that carried decisive weight, had not been properly adduced as evidence since its content had not been descriptively entered into the trial record. In the resumed proceedings, and after the recording of E.’s questioning had been played at the trial, the court refused the defence’s request to question E. (directly or indirectly) on grounds of her young age and the late procedural stage in which the request had been advanced. The subsequent request to exclude E.’s statement from the evidence was also refused. On 29 June 2023 the Bitola Court of First Instance convicted the applicant for sexual abuse of a person below the age of 15 (following requalification of the charges due to amendments to the Criminal Code) and sentenced him to five years’ imprisonment. It was established that at the time of the events the applicant had significantly reduced capacity due to his health condition. The court also imposed compulsory hospitalisation and treatment of the applicant as a security measure. It mainly relied on the recording of E.’s testimony, that had been supported by other evidence, including statements of other witnesses examined during the proceedings, such as E.’s father (to whom she had recounted the event) and the psychiatric expert that assessed the truthfulness of E.’s testimony. In her written report, the expert did not recommend E.’s further inclusion in the criminal proceedings. On 28 May 2024 the Bitola Court of Appeal dismissed the applicant’s appeal, finding that the defence had received a recording of E.’s pre-trial testimony and thus could request questions to be put in writing to the witness, but failed to do so. It relied on sections 54 and 232 of the Criminal Proceedings Act and sections 145-150 of the Child Justice Act, that provided for special procedural measures for vulnerable witnesses, which were necessary to protect the child and avoid secondary victimisation. On 16 October 2024 the Supreme Court dismissed the applicant’s request for extraordinary review of a final judgment and upheld the conviction, endorsing the reasoning of the second-instance court. This judgment was served to the applicant on 11 November 2024. The applicant complains, under Article 6 of the Convention, about a violation of the principle of equality of arms and a violation of his defence rights, in that his conviction had been mainly based on the untested evidence given by the child-victim during pre-trial proceedings in the absence of the applicant and his lawyer. QUESTIONS TO THE PARTIES 1.     Has the applicant’s right to a fair trial, including a right to examine or to have examined witnesses against him, under Article 6 §§ 1 and 3(d) of the Convention, been breached in that neither the applicant, nor his lawyer had been given an opportunity, at any stage of the proceedings, to examine E., the victim of the offence of which the applicant was convicted?   2.     In particular, having regard to the principles established by the Court in its judgment in the case of Schatschaschwili v. Germany [GC], no.   9154/10, ECHR 2015:   (a)     Was there a good reason for admitting as evidence the pre-trial statement made by the child-victim, a recording of which had been played at the trial?   (b)     Was the applicant’s conviction based solely or to a decisive or significant extent on the evidence provided by E.?   (c)     Have there been sufficient counterbalancing factors to compensate the difficulties caused to the defence as a result of the fact that it had been unable to question E.? In particular, what counterbalancing measures were taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights?