European Court of Human Rights - case of Stoimenov v. the former Yugoslav Republic of Macedonia (2007) (excerpts)

European Court of Human Rights - case of Stoimenov v. the former Yugoslav Republic of Macedonia (2007) (excerpts)

(...)

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.

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).

 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.