Last Updated on January 16, 2024 by LawEuro
The case concerns the alleged lack of adversarial process in proceedings concerning the applicant’s pre-trial detention, which had been ordered in the context of criminal proceedings relating to an incident of 27 April 2017 when a group of protesters had entered the Parliament building.
European Court of Human Rights
SECOND SECTION
CASE OF VASILEVSKI v. NORTH MACEDONIA
(Application no. 27509/18)
JUDGMENT
STRASBOURG
16 January 2024
This judgment is final but it may be subject to editorial revision.
In the case of Vasilevski v. North Macedonia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Lorraine Schembri Orland, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 27509/18) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2018 by a Macedonian/citizen of North Macedonia, Mr Sasho Vasilevski, who was born in 1966 and lives in Ohrid (“the applicant”) and was represented by Mr A. Godjo, a lawyer practising in Ohrid;
the decision to give notice of the complaints concerning the alleged lack of adversariness in the proceedings concerning the applicant’s pre-trial detention and its review, to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 12 December 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged lack of adversarial process in proceedings concerning the applicant’s pre-trial detention, which had been ordered in the context of criminal proceedings relating to an incident of 27 April 2017 when a group of protesters had entered the Parliament building.
2. On 27 November 2017 a public prosecutor lodged a request, supported by evidence, for the applicant (a member of Parliament at the material time) to be remanded in custody. A pre-trial judge of the Skopje Court of First Instance adjourned the hearings set for 29 November and 1 December 2017 on the basis that the applicant’s parliamentary immunity had not been lifted. At a hearing on 5 December 2017 at which the applicant was present, he ordered the applicant to be detained for thirty days.
3. On 27 December 2017 a three-judge panel of the Skopje Court of First Instance extended the applicant’s detention. In reply to the applicant’s appeal against the extension, a public prosecutor from the Higher Public Prosecutor’s Office (“the higher public prosecutor”) made a written submission which was not communicated to the applicant. On 12 January 2018 the Skopje Court of Appeal (“the appellate court”) held a hearing in the presence of the applicant’s lawyer and the higher public prosecutor. On 15 January 2018 the appellate court dismissed the appeal.
4. The criminal proceedings against the applicant were subsequently stayed under the Amnesty Act concerning the events of 27 April 2017.
5. The applicant complained under Article 5 § 4 of the Convention that the public prosecutor’s request of 27 November 2017, as well as the higher public prosecutor’s submissions in reply to the applicant’s appeals against the detention and extension orders, had not been communicated to him.
THE COURT’S ASSESSMENT
ALLEGED VIOLATIONs OF ARTICLE 5 § 4 OF THE CONVENTION
A. Non-communication of the higher public prosecutor’s written submissions in reply to the applicant’s appeal against the detention orders
1. Admissibility
6. The Government submitted that the applicant had not lodged a compensation claim for unjust deprivation of liberty under the relevant statutory provisions cited in Shipovikj v. North Macedonia ((dec.), nos. 77805/14 and 77807/14, §§ 33, 35 and 38, 9 March 2021). In the absence of any examples of domestic case-law confirming that such proceedings could provide sufficient redress, if any redress at all, for the specific procedural deficiencies in the detention proceedings (see, mutatis mutandis, Shipovikj, cited above, § 57), the Court dismisses this objection.
7. The Government also argued that the applicant had failed to complain at the public hearing held on 12 January 2018 (paragraph 3 above) that the public prosecutor’s submissions in reply to the applicant’s appeal against the extension order of 27 December 2017 had not been communicated to him. The Court considers that this question is closely linked to the substance of the applicant’s complaint and must therefore be joined to the merits (see, mutatis mutandis, Yılmaz Aydemir v. Türkiye, no. 61808/19, § 30, 23 May 2023).
8. The Court has repeatedly rejected the application of the “no significant disadvantage” admissibility criterion in relation to complaints under Article 5 of the Convention (see Zelčs v. Latvia, no. 65367/16, § 44, 20 February 2020, and the cases cited therein). It finds no reasons to decide otherwise in the present case.
9. Lastly, the applicant’s failure to notify the Court that the criminal proceedings against him had been stayed (paragraph 4 above) does not amount to an abuse of the right of application for the purposes of Article 35 § 3 (a) of the Convention. The applicant cannot be considered to have failed to disclose information concerning the very core of the case (compare and contrast Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no. 3172/07, §§ 22-26, 15 January 2013).
2. Merits
10. The relevant general principles regarding proceedings under Article 5 § 4, which must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person, have been summarised in Miladinov and Others v. the former Yugoslav Republic of Macedonia (nos. 46398/09 and 2 others, §§ 63-64, 24 April 2014, with further references).
11. The Court observes that the higher public prosecutor made no written submissions in reply to the applicant’s appeal against the order of 5 December 2017. However, the higher public prosecutor did make written submissions in reply to the applicant’s appeal against the extension ordered on 27 December 2017 and those were not communicated to the applicant or his lawyers. The appellate court held a hearing which was attended by the applicant’s lawyer and the higher public prosecutor, before deciding the applicant’s appeal. At that hearing, the higher public prosecutor referred to her previous written submissions and made an oral statement. However, for the reasons elaborated in the case of Bosak and Others v. Croatia (nos. 40429/14 and 3 others, §§ 96, 97, 99 and 100, 6 June 2019, in the context of Article 6 of the Convention), the Court does not consider that the applicant’s lawyer’s presence at the appellate court hearing meant that the applicant had had a real opportunity to learn about and challenge the prosecutor’s arguments, nor that the applicant’s failure to raise the non-communication of the prosecutor’s submission at that hearing amounted to a non-exhaustion of domestic remedies. Similarly, the fact that the applicant could have inspected the case-file and acquainted himself with the prosecutor’s submissions does not lead to a different conclusion.
12. The Court therefore dismisses the Government’s non-exhaustion objection and finds that there has been a violation of Article 5 § 4 of the Convention.
B. Non-communication of the public prosecutor’s request of 27 November 2017
13. It is not necessary to examine the Government’s admissibility objections (non-exhaustion, absence of significant disadvantage and abuse of the right to application) as this complaint is in any event inadmissible for the reasons stated below.
14. It is undisputed that copies of the public prosecutor’s request of 27 November 2017 for the applicant’s detention and the accompanying evidence were not served on the applicant or his lawyers. However, the record of the hearing of 29 November 2017 clearly indicates that the applicant and his lawyers were informed of the prosecutor’s request. This is further confirmed by the record of the subsequent hearing of 1 December 2017. Notwithstanding the fact that the prosecutor’s application and the accompanying documents were not forwarded to the applicant, there is nothing to suggest that he had not been aware of their content before the hearing of 5 December 2017 when the pre-trial judge ordered his detention. Accordingly, he was able to challenge and put forward arguments against these documents. In the light of the foregoing specific circumstances, this complaint is manifestly ill-founded for the purposes of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage referring, inter alia, to all the circumstances under which the violations have been taking place. He further claimed EUR 4,990 in respect of costs and expenses incurred before the Court.
16. The Government contested these claims as unsubstantiated and excessive.
17. Ruling on equitable basis, the Court awards the applicant EUR 800 in respect of non-pecuniary damage, plus any tax that may be chargeable.
18. Having regard to the documents in its possession, the Court further considers it reasonable to award EUR 400 for costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the non-communication of the higher public prosecutor’s submissions in reply to the applicant’s appeal against his detention extension order of 27 December 2017 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 4 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 800 (eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 400 (four hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; and
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Lorraine Schembri Orland
Deputy Registrar President
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