MILADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 46398/09 - Chamber Judgment [2014] ECHR 445 (24 April 2014)

In the case of Miladinov and Others v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 1 April 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 46398/09, 50570/09 and 50576/09) 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 three Macedonian nationals, Mr Dimitar Miladinov (“the first applicant”), Mr Dimitrija Golaboski (“the second applicant”) and Mr Georgi Miladinov (“the third applicant”), on 22 August 2009 (in respect of application no. 46398/09) and 14 September 2009 (in respect of applications nos. 50570/09 and 50576/09).

2. The applicants were represented by Mr D. Godžo and Mr A. Godžo, lawyers practising in Ohrid. The Macedonian Government (“the Government”) were represented by their Agent, Mr Kostadin Bogdanov.

3. The applicants alleged, in particular, that the court orders extending their detention on remand and the proceedings for the review of those orders violated their rights under Article 5 §§ 3 and 4, as well as Article 6 § 2 of the Convention.

4. On 1 February 2012 these complaints were communicated to the respondent Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1966, 1953 and 1961 respectively and live in Struga (the first and third applicants) and Ohrid (the second applicant). The applicants were private entrepreneurs.

A. The applicants’ arrest and detention on remand

6. On 23 December 2008 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against fifteen people (some of the accused were bankruptcy trustees, trial judges, lawyers, notaries and civil servants), including the applicants, on reasonable suspicion of having been involved in crimes with respect to bankruptcy proceedings concerning company I. All the applicants were charged with money laundering. In respect of the first applicant, the investigation also concerned charges of abuse of position, fraud and forgery and as regards the third applicant, charges of fraud. After having heard oral evidence from the accused, the investigating judge, in a single decision, ordered that nine of the accused, including the applicants, be placed in pre-trial detention for thirty days. The detention order was based on all the grounds specified under section 184(1)(1-3) of the Criminal Proceedings Act (hereinafter “the Act”, see paragraph 32 below), namely, a risk of the accused absconding and reoffending and interfering with the investigation. The judge relied on the gravity of the charges, the severity of the potential sentence and the possibility of the accused influencing witnesses, accomplices and other people concerned.

7. The first and second applicants appealed, arguing that the investigating judge had not given any concrete reasons to justify the detention of each of them. Both applicants pointed out that they had a permanent residence and family in the respondent State. The second applicant further submitted evidence regarding his poor health.

8. On 25 December 2008 a three-judge panel of the trial court (“the panel”), set up under section 22(6) of the Act (see paragraph 29 below), sitting in private, dismissed the appeal submitted by the first applicant. On 26 December 2008 it replaced the order for pre-trial detention with an order for house arrest in respect of the second applicant.

B. Extension of the applicants’ pre-trial detention

9. With three decisions dated 21 January, 19 February and 20 March 2009, the panel ordered, on each occasion, a thirty-day extension of the applicants’ pre-trial detention and house arrest, respectively. All extension orders were taken at hearings held in private (нејавна седница). The first two extension orders were given on a proposal by the investigating judge and were based on all three grounds specified under section 184(1)(1-3) of the Act. In the decision of 20 March 2009, which was given on a proposal by the public prosecutor, “interference with the investigation” was excluded from the list of grounds since an indictment was lodged against the applicants on that date. According to the applicants, the indictment was communicated to them on 6 April 2009.

10. As regards the risk of absconding, the extension order of 21 January 2009 stated that:

“Having regard to the type, gravity and nature of the criminal offenses with which the accused are charged, the panel considers that there is a real risk of them absconding if they are released. That is sustained with the behaviour of some of the accused, namely [the first applicant] has a previous criminal record and criminal proceedings are pending in respect of [the second applicant]. As regards the personal circumstances of the accused, the panel took into consideration that most of them have a family; that they are parents and have possessions, but it considers that they do not provide for a sufficient guarantee, at this stage of the investigation, that they would not abscond if they are released...”

11. As to the possibility of their reoffending, in all three orders the panel stated, inter alia:

“... the panel has taken into consideration the nature, character and type of offences and the manner and conditions in which they were committed, which make the possibility of reoffending particularly likely. Particular attention has been paid to the fact that the criminal offences with which the accused are charged (or ‘in respect of which there is a reasonable suspicion’) have been committed through the use of the position and characteristics of the accused as holders of special powers [со искористување на положбата и својствата на обвинетите и како носители на посебни овластувања].”

12. The extension order of 19 February 2009 relied on the same reasons and used identical wording to justify the risk of the applicants absconding and reoffending. It added a reference to the severity of the potential penalty, as a ground that justified the risk of flight.

13. As regards the risk that the applicants might flee, the extension order of 20 March 2009 stated:

“... The contents and quality of the material and verbal evidence adduced corroborates the suspicion that the accused have committed the crimes with which they are charged ... Consequently, the panel considers that at this stage of the proceedings, namely, after the indictment was lodged ... there is still a real risk of the accused absconding if they are released. That would considerably affect the proceedings and prevent the case from being decided. Having been acquainted with the indictment and the reasons given therein, and having been faced with the possibility of a prison sentence, the accused, if released, could flee or otherwise go into hiding ...”

14. As regards the possibility that the applicants might reoffend this order provided an explanation identical to that contained in the previous orders. The panel further added:

“... In particular, [the first and third applicants] are the owners of several companies through which the offences with which they are charged were committed. The other accused are employed by or otherwise connected with those companies ...”

15. After 16 April 2009 the panel extended the applicants’ pre-trial detention and house arrest, respectively on its own motion. Between 16 April and 16 September 2009 the panel, sitting in private (нејавна седница), issued six orders each providing for a thirty-day extension of the applicant’s detention due to the risk that they might flee and the possibility that they might reoffend. The risk was justified, in all extension orders with an explanation identical to that described above (see paragraphs 13 and 14 above). Besides the above reasons, in all six extension orders given during this time, the panel stated:

“... Given the fact that the detention in prison custody and house arrest are the most efficient measures that secure the attendance of the accused at the trial ... which had a positive bearing on their right to a hearing within a reasonable time .... the panel considers that the extension and maintaining of the detention .... is justified ...”

16. In addition to the above reasoning, the extension orders of 18 June, 17 July, 17 August and 16 September 2009 (each proving for a thirty-day extension of the applicants’ detention) contained a reference to the third applicant’s previous criminal record.

17. On 28 May 2009 Mr D. Godžo visited the first applicant in Skopje prison. On that occasion, the first applicant signed a letter of attorney for Mr Godžo to represent him in the proceedings before the Strasbourg Court. The prison administration retained that document because Mr Godžo had not informed them in advance that such a document would be signed. The first applicant requested that the prison governor, the trial court and the Ombudsman take measures to remedy the situation. After eighteen days the retained document was returned to Mr Godžo.

18. On 18 September 2009 the panel set aside the order for house arrest in respect of the second applicant and ordered that his passport be seized. In the absence of an appeal, the order became final.

19. Between 15 October 2009 and 14 January 2010 the panel issued four orders each providing for a thirty-day extension of the detention of the first and third applicants for the same reasons and with an identical wording to that described above (see paragraphs 13-16). All orders were taken at hearings held in private.

C. Review of the extension orders by the Skopje Court of Appeal

20. As evident from the available material in the case file, the applicants appealed against the extension orders, arguing, inter alia, that the panel had not given sufficient reasons to substantiate the risk of them absconding and reoffending, given their family situation and the state of health of the second applicant (who suffered from a chronic illness and needed regular medical care). The first applicant further argued that his previous conviction concerned a traffic offence, which could not be relied on by the courts to justify the risk of his reoffending. The applicants also complained that the wording used in the decisions in question violated their right to the presumption of innocence as guaranteed by the Act and the Convention. The first and third applicants further requested, under section 388(1) of the consolidated version of the Act (the text of which is identical to section 362(1) of the Act, see paragraph 31 below), to be informed of the date of the session (седница) of the Court of Appeal. Lastly, the applicants sought release and replacement of the detention order with a more lenient measure specified under the domestic law.

21. The Skopje Court of Appeal, sitting in private, dismissed the appeals, finding that the panel had given sufficient reasons for the applicants’ continued detention. In the decisions (dated 5 May, 8 June, 6 July, 30 July,10 September, 5 October and 2 November 2009), the Court of Appeal referred to written submissions in which the public prosecutor requested, under section 361(1) of the Act (see paragraph 36 below) that the court dismisses the applicants’ appeals. In its decisions of 5 October and 2 November 2009 it also dismissed the requests of the first and third applicants that it decide in a public session (седница), finding that section 388(1) of the Act was inapplicable in their case.

22. As regards the risk of the applicants absconding, in the decisions dated 5 May, 8 June, 30 July and 10 September 2009, the Skopje Court of Appeal stated, inter alia:

“... The court considers that, as evident from the case-file, the circumstances of the concrete criminal act, taken in connection with the nature, type, gravity and the manner in which the criminal offences were committed ... faced with the possibility to be sentenced to imprisonment and the severity of (this penalty) suggest that there is a risk of the accused of absconding in order to avoid eventual criminal responsibility for the criminal offences in question ...

In this connection the court neither accepts nor does it consider that the allegations of the accused that they have family; that they are parents with a permanent residence [in the respondent State] are of any relevance ... ”

23. Regarding the possibility that the applicants might reoffend, the court stated that:

“... [the court took into consideration] all the circumstances of the concrete criminal act, in particular, the nature and type of the criminal offences, the manner in which they were committed, especially the fact that the (first and third applicants) are the owners of several companies through which the crimes were committed and (the second applicant) was linked with those companies by way of having been engaged in work-related activities ... The above is further supported by the fact that there are criminal proceedings pending in respect of (the second applicant) and that (the first applicant) has already been convicted. All [the above] increases the risk of the accused reoffending if they are released at this stage of the proceedings ... having regard, in particular, to the fact that the criminal offences, as stated, were committed through the use of the position and powers of the accused ...”

24. Identical wording, limited to the first and third applicants, was used in decisions of 5 October, 2 and 25 November and 29 December 2009 in which the Skopje Court of Appeal dismissed the appeals brought by these applicants. In all decisions the Court of Appeal also referred to the detention “as the most efficient measure to secure the attendance of the accused at the trial”.

25. In all the above decisions the Skopje Court of Appeal further stated:

“The court examined the complaints ... denying the existence of offenses and criminal responsibility of the accused, but it considers that they are irrelevant in the appeal proceedings in question, given that the only issue to be decided at this moment is whether there are reasons for detention ... In this connection (these) complaints will be examined at the trial ... where the court will adjudicate on the merits (of the case).”

D. As regards the criminal proceedings against the applicants

26. On 29 January 2010 the trial court found the applicants guilty and sentenced the first and third applicants to six and a half years’ imprisonment and the second applicant to a prison term of two years. The court further decided that the first and third applicants would remain in custody until the judgment became final.

27. On 24 September 2010 the Skopje Court of Appeal allowed the appeals submitted by the applicants’ and the public prosecutor and quashed, in a public session, the trial court’s judgment. It also ordered the first and third applicants’ release of its own motion, finding that there were no grounds to justify their detention.

28. No further information was provided as regards the criminal proceedings against the applicants.

II. RELEVANT DOMESTIC LAW

A. Criminal Proceedings Act of 1997 (Закон за кривичната постапка од 1997 година)

29. Section 22(6) of the Criminal Proceedings Act of 1997, as in force at the relevant time, provided for a three-judge panel of the trial court to rule, inter alia, on appeals against decisions of the investigating judge.

30. Section 73(1) of the Act provided that submissions lodged with a court should be filed in a sufficient number of copies for the court and the other party concerned.

31. Under section 183(2) of the Act, detention on remand should be as brief as possible.

32. Under section 184(1)(1-3) of the Act, pre-trial detention could be ordered on reasonable suspicion that the person concerned had committed an offence if there was a risk of his or her absconding, interfering with the investigation or reoffending.

33. Under section 185(1) and (6) of the Act, an investigating judge had the power to order pre-trial detention. The person concerned could appeal before the panel.

34. Section 189(2) and (6) of the Act provided for the panel set up under section 22(6) to extend the detention on the basis of a proposal by the investigating judge or the public prosecutor. The extension order could be challenged before the higher court. The appeal did not stay the execution of the panel’s order.

35. Under section 191(3) of the Act, the panel (composed under section 22(6) of the Act) was required to assess if there were reasons for keeping the person concerned in detention and accordingly to extend it or order release. The review was to be carried out in the absence of a request by the parties and within thirty days after the last detention order had become final.

36. Under section 361(1), the chairman of the adjudicating panel of the appeal court designated a judge rapporteur. In cases subject to State prosecution, the judge rapporteur was required to forward the case file to the competent public prosecutor. The latter was obliged to review the file and return it to the adjudicating panel without delay.

37. Section 362(1) of the Act provided for notification of the date of the session to be given, inter alia, to the defendant and his lawyer, the victim (as a plaintiff, тужител) and the private prosecutor (приватен тужител) if, within the period prescribed for the appeal or reply to the appeal, they so requested.

B. Courts Act of 2006

38. Section 2(2) of the Courts Act provides that courts, when applying the law, must protect human rights and freedoms.

THE LAW

I. JOINDER OF THE APPLICATIONS

39. The Court notes that all the applicants complained of insufficient reasoning and deficiencies in the review proceedings concerning their detention on remand. Having regard to the similarity of their main grievances, the Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined.

II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 AND 4 OF THE CONVENTION

40. The applicants complained that the domestic courts had not given concrete and sufficient reasons for their detention; that there had been no oral hearing in the proceedings for review of the detention both before the panel (when it extended the pre-trial detention) and the Court of Appeal; and that those proceedings had not been adversarial because the public prosecutor’s written observations submitted in reply to their appeals had not been communicated to them. Article 5 §§ 3 and 4 of the Convention read as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

41. The Government did not raise any objection as regards the admissibility of these complaints.

42. The Court notes that this part of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Article 5 § 3 complaint

(a) The parties’ submissions

43. The applicants reiterated that the domestic courts had not given sufficient reasons to justify their continued detention. The extension orders had contained identical explanations, which had merely restated the grounds for their detention.

44. The Government submitted that the court orders regarding the applicants’ detention had contained sufficient and relevant reasons. Besides the nature of the criminal offenses and the applicants’ personal circumstances, the courts also had taken into consideration the risk of their fleeing, reoffending and interfering with the investigation. Lastly, the applicants’ detention had served a purpose, namely, to secure their attendance at the trial. As a result, despite the complexity of the case, the number of accused and the amount of evidence, the trial proceedings had been completed within a reasonable time.

(b) The Court’s assessment

(i) General principles

45. According to the Court’s case-law, whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI).

46. The Court reiterates that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see Trifković v. Croatia, no. 36653/09, § 118, 6 November 2012). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts).

47. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify continued detention (see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, § 56, 28 October 2010, and the references cited therein).

48. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable length of time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Perica Oreb v. Croatia, no. 20824/09, § 107, 31 October 2013).

49. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX (extracts)). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

(ii) Application to the present case

50. The Court observes that on 23 December 2008 the applicants were arrested and brought before the investigating judge who remanded them (together with six co-accused) in custody, with a single decision, on suspicion of having committed several offences. Their detention lasted from the date of their arrest until 18 September 2009, in respect of the second applicant (see paragraph 18 above), and until 29 January 2010, in respect of the first and third applicants (see paragraph 26 above). That is because after their conviction at first instance, they could not be regarded as being detained “for the purpose of bringing [them] before the competent legal authority on reasonable suspicion of having committed an offence”, but were in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Labita, cited above, §§ 145-147; and Kudła, cited above, § 104). Accordingly, the first and third applicants spent a year, one month and six days in prison custody and the second applicant, eight months and twenty-six days under house arrest.

51. The Court accepts that the applicants’ detention may initially have been warranted by a reasonable suspicion that they had committed the offences with which they were charged. However, with the passage of time that ground inevitably became less relevant. It also accepts that it was not unjustified that the applicants’ detention was based, during the initial three months until 20 March 2009, on the possibility of them interfering with the investigation (see paragraph 9 above). In this connection the Court is mindful of the complexity of the investigation which concerned white-collar crime charges submitted against fifteen accused (see paragraph 6 above). The Court must establish however whether the other grounds given by the judicial authorities, namely the risk of their absconding and reoffending, continued to justify their deprivation of liberty.

52. In this respect the Court notes that after 20 March 2009 the applicants’ detention was extended on several occasions (six times in respect of the second applicant and ten times in respect of the first and third applicants) on the basis of the risk of their absconding and reoffending. Subsequently, the need to secure their attendance at the trial was also included among the grounds for their detention (see paragraphs 12, 13 and 16 above). It will therefore examine the reasons given by the domestic courts throughout the applicants’ pre-trial detention (see Labita, cited above, § 152).

(α) The risk of absconding

53. Throughout the period under consideration, the courts repeatedly relied on the gravity of the charges and the severity of the sentence the accused faced as the decisive elements that increased the risk of their absconding. That risk was also based on the suspicion that they had committed the offence they were charged with (see paragraphs 10, 12, 13, 15, 16 and 19 above).

54. The Court agrees that at the initial stage of the proceedings the need to ensure the proper conduct of the investigation and to prevent the applicants from absconding could justify keeping them in custody. However, the Court reiterates that the danger of fleeing cannot be gauged solely on the basis of the severity of the sentence faced. While the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial. Furthermore, an extension order requires a more solid basis to show not only that there was genuinely “a reasonable suspicion”, but also that there were other serious public-interest considerations which, notwithstanding the presumption of innocence, outweighed the right to liberty (see Perica Oreb, cited above, §§ 114 and 116; Panchenko v. Russia, no. 45100/98, § 105, 8 February 2005; and Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43)).

55. In the Court’s view, the domestic courts did not demonstrate the existence of any concrete fact in support of their conclusion that the applicants presented a real risk of absconding. No reason was given for the assumption that the applicants would have viewed the consequences and hazards of absconding as a lesser evil than continued imprisonment. The domestic courts did not point to any specific aspects of their character or behaviour which would justify their conclusion that each applicant presented a persistent risk of absconding. Moreover, at no point in the proceedings did the domestic courts explain in their decisions why the alternatives to deprivation of liberty that the applicants suggested in their appeals against the panel’s decisions (see paragraph 20 above) would not have sufficed to ensure that the trial followed its proper course, which, according to the Government (see paragraph 44 above), was the main purpose of the applicants’ detention (see Vasilkoski, cited above, § 62).

(β) The danger of reoffending

56. The domestic courts also referred to the likelihood that the applicants would reoffend as an additional ground justifying their continued detention. In so doing, they referred to the seriousness of the alleged crime. However, they did not refer to any concrete fact as proof of the applicants’ propensity to commit criminal offences. Although they mentioned the first and third applicants’ previous convictions, the courts never went beyond these findings. In this connection the Court reiterates that reference to a person’s prior criminal record cannot suffice to justify refusal of release (see Sergey Vasilyev v. Russia, no. 33023/07, § 84, 17 October 2013). The courts never compared the nature and the degree of seriousness of the previous convictions with the charges in the present case. Nor did they respond to the first applicant’s arguments (see paragraph 17 above) that his previous conviction had concerned a traffic offence, which was not comparable either in nature or in degree of seriousness with the charges of money laundering, abuse of position, fraud and forgery (see Trifković, cited above, § 127). The same concerns the second applicant who had no previous conviction, but only was charged for certain crimes that the courts did not specify.

57. The Court lastly observes that all the extension orders and decisions on their appeals used the same summary formula with identical wording. It appears that the courts had little, if any, regard to the applicants’ individual circumstances. The courts did not describe in detail the applicants’ personal situation beyond a mere reference to their possessions and family situation (see paragraph 10 and 22 above), which was not accompanied by any explanation as to why their characters or personal circumstances made their detention necessary.

58. Having regard to the above, the Court considers that by failing to address concrete facts and by relying essentially on the gravity of the charges and the severity of the sentence faced, the authorities extended the detention in prison custody of the first and second applicants and the second applicant’s house arrest on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify the length of the pre-trial detention.

59. There has accordingly been a violation of Article 5 § 3 of the Convention.

2. Article 5 § 4 complaints

(a) The parties’ submissions

60. The applicants submitted that notwithstanding the fact that the Criminal Proceedings Act did not provide for an oral hearing in review proceedings regarding detention on remand, the courts were required, as specified under the Courts Act (see paragraph 38 above), to protect human rights and freedoms. They reiterated that neither the panel nor the Court of Appeal had held an oral hearing at which they could have presented their arguments.

61. They further reiterated that the written submissions the public prosecutor provided to the Court of Appeal had not been communicated to them. That court addressed those submissions in its decisions dismissing the applicants’ appeals.

62. The Government relied on the findings of the Court of Appeal (see paragraph 21 above) according to which the domestic law did not provide for an oral hearing at second instance in review proceedings. In any event, the Court of Appeal had not been prevented from deciding the case on the basis of the available material. The review proceedings before that court were conducted under section 361(1) of the Act (see paragraph 36 above). In the written submissions, which were purely of a formal nature, the public prosecutor merely requested that the applicants’ appeals be dismissed. They did not concern the merits of the panel’s orders extending the applicants’ detention. The Court of Appeal referred to those submissions without further elaboration.

(b) The Court’s assessment

63. Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Assenov and Others v. Bulgaria, 28 October 1998, § 162, Reports of Judgments and Decisions 1998-VIII, and the references cited therein).

64. The Court further reiterates that a court examining an appeal against detention must provide the guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II; Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005-XII; and Mitreski v. the former Yugoslav Republic of Macedonia, no. 11621/09, § 29, 25 March 2010). In this context, importance is to be attached to, inter alia, the appearance of the fair administration of justice and to the increased sensitivity of the public to the fair administration of justice (see Atanasov v. the former Yugoslav Republic of Macedonia, no. 22745/06, § 31, 17 February 2011, in the context of Article 6 of the Convention).

65. The Court notes that the investigating judge remanded the applicants in custody after it had examined them at the hearing held on 23 December 2008 (see paragraph 6 above). The applicants’ detention was subsequently extended on several occasions by the panel of the trial court at hearings held in private. The requests of the first and third applicants to present their arguments orally before the Court of Appeal were to no avail for the reasons stated by that court (see paragraph 21 above).

66. It transpires therefore that the domestic law in force at the time did not provide for an oral hearing before the panel and the Court of Appeal in the proceedings reviewing detention on remand. No argument to the contrary has been presented (see paragraphs 60 and 62 above). Accordingly, the Court concludes that the review proceedings regarding detention on remand, before the panel and the Court of Appeal, were purely written. In this connection, the Court reiterates that its task is not to rule on legislation in abstracto and it will not therefore express a view as to the general compatibility of the relevant provisions of the Act, as then in force, with the Convention (see Nikolova, cited above, § 60). It must assess whether the review proceedings in the applicants’ case were in conformity with Article 5 § 4 of the Convention. On the facts of the case, it is undisputed that the applicants’ detention during the period under consideration was extended without the applicants having been able to present their arguments orally in the review proceedings regarding their detention, neither before the panel of the trial court nor before the Court of Appeal. In this connection the Court notes that it has not been presented with any evidence that the applicants requested release from detention in the criminal proceedings and that the adjudicating chamber decided any such request.

67. The Court further notes that the Skopje Court of Appeal gave its decisions after receiving the prosecutor’s written comments inviting it to dismiss the applicants’ appeals. Those submissions were not served on the applicants. The Government did not present any evidence to the contrary. Accordingly, the applicants were denied the opportunity to read the prosecutor’s opinion. Regard being had to what was at stake for them in the proceedings, the fact that it was impossible for them to obtain a copy of the prosecutor’s observations infringed their right to adversarial proceedings.

68. There has therefore been a violation of Article 5 § 4 of the Convention on account of the lack of an oral hearing in the impugned proceedings and non-observance of the principle of equality of arms in the proceedings before the Court of Appeal.

III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

69. The applicants complained under Article 6 § 2 of the Convention that the wording of the courts’ decisions on their detention violated their right to be presumed innocent. Article 6 § 2 reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. The parties’ submissions

70. The Government submitted that the panel had only expressed a suspicion that the applicants had committed the crimes “with which they had been charged”. The present cases were accordingly distinguishable from that giving rise to the Matijašević judgment, where the domestic courts had expressly stated that the applicant had “committed the criminal offences which are the subject of this prosecution” (see Matijašević v. Serbia, no. 23037/04, § 7, ECHR 2006-X).

71. The applicants submitted that in stating that “criminal offences with which the accused are charged have been committed through the use of the position and characteristics of the accused as holders of special powers ...” and that “... [the first and third applicants] are the owners of several companies through which the offences with which they are charged were committed [and] the other accused are employed by or otherwise connected with those companies ...”, the panel had declared them guilty before trial. By saying that “the (first and third applicants) are the owners of several companies through which the crimes were committed and (the second applicant) was linked with those companies by way of having been engaged in work-related activities ...”, the Court of Appeal had confirmed that violation instead of rectifying it.

B. The Court’s assessment

72. The Court reiterates that the principle of the presumption of innocence under Article 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved according to law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, and a premature expression of such an opinion by the tribunal itself will inevitably run foul of the said principle (see Gaforov v. Russia, no. 25404/09, §§ 207 and 209, 21 October 2010).

73. However, a distinction should be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe “a state of suspicion”. The former infringe the presumption of innocence, whereas the latter have been regarded as unobjectionable in various situations examined by the Court (see Garycki v. Poland, no. 14348/02, § 67, 6 February 2007).

74. Turning to the circumstances of the present case, the Court notes at the outset that the applicants specifically complained about the above statements (see paragraph 71 above) and it will accordingly focus its analysis on those particular statements.

75. In this connection it observes that the panel made those statements in order to justify the risk of reoffending as a ground for extending the applicants’ pre-trial detention. Although the wording employed by the panel may be considered rather unfortunate, the Court does not consider that the impugned phrases contained an explicit and unqualified declaration that amounted to the determination of the applicants’ guilt before they were proved guilty according to law. Indeed, as the Government argued, the panel did not refer to the applicants as the perpetrators of the offences (see, conversely, Matijašević cited above, § 48; Garycki, cited above, § 71, and Fedorenko v. Russia, no. 39602/05, § 90, 20 September 2011). On the contrary, in all of the extension orders the impugned phrases contained concomitant statements clearly saying that the applicants “were charged with those offences”. In such circumstances, the Court is satisfied that the courts were referring not to the question whether the applicants’ guilt had been established by the evidence - which, as noted by the Court of Appeal (see paragraph 25 above), was clearly not the issue to be determined in the context of detention - but to whether there were legal grounds for the applicants’ continued detention.

76. In these circumstances, the Court considers that the wording of the extension orders did not amount to a declaration of the applicants’ guilt in breach of the presumption of innocence.

77. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. OTHER ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

78. The applicants further complained that the indictment had not been promptly communicated to them; that their defence rights and the principle of equality of arms had been violated since they had had to obtain the judge’s permission to inspect the case file and had had, unlike the public prosecutor, to pay for the copying of documents in the case file. The first and third applicants further complained that a prison guard had always been present during their meetings with their legal representative. The incident of 28 May 2009 (see paragraph 7 above) supported that argument. The applicants relied on Article 6 § 1 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 ... by [a] ... tribunal ...”

79. The Court notes that the above complaints, as submitted by the applicants, concern specific aspects of the right to a fair trial in respect of the criminal proceedings against the applicants that are still pending. Accordingly, these complaints are premature.

80. It follows that this part of the applications must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

81. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

82. The first and third applicants claimed 10,000 euros (EUR) each and the second applicant EUR 3,000, with interest, in respect of non-pecuniary damage for the mental suffering they had experienced as a result of the alleged violations.

83. The Government contested these claims as unsubstantiated.

84. The Court considers that the applicants must have sustained non-pecuniary damage for the violations found. Ruling on equitable basis, it awards, under this head, the applicants EUR 3,000 each, plus any tax that may be chargeable.

B. Costs and expenses

85. The applicants specified two different sums in total, namely EUR 1,358 and EUR 5,618, value-added tax included, for the fees for their legal representation in the proceedings before the Court, calculated according to the tariff list of the Macedonian Bar. The applicants’ representatives requested that the fee be paid directly into their bank account.

86. The Government stated that the applicants had submitted “diverse sums and calculations”. They further argued that there was no evidence that the legal fees claimed under this head (their comments concerned the sum of EUR 1,358) had been “necessarily incurred”.

87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as this relates to the violations found and it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 1,350 for the proceedings before the Court, to be paid into the bank account of the applicants’ representatives.

C. Default interest

88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints under Article 5 §§ 3 and 4 of the Convention admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the lack of concrete and sufficient reasons for the applicants’ detention on remand;

4. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the absence of an oral hearing in the impugned proceedings and non-observance of the principle of equality of arms in the proceedings before the Court of Appeal;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,350 (one thousand three hundred and fifty euros), to the applicants jointly, to be paid into the bank account of the applicants’ representatives, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MILADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 46398/09 - Chamber Judgment [2014] ECHR 445 (24 April 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/445.html Cite as: [2014] ECHR 445