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FIFTH
SECTION
CASE OF MITRESKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 11621/09)
JUDGMENT
STRASBOURG
25
March 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mitreski v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11621/09) 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 a Macedonian
national, Mr Sime Mitreski (“the applicant”),
on 20 February 2009.
- The
applicant was represented by Mr A. Godzo and Mr D. Godzo, lawyers
practising in Ohrid. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- The
applicant alleged, in particular, that his initial order for house
arrest was replaced with an order for detention in prison in
proceedings which had not been adversarial and without holding an
oral hearing.
- On
25 May 2009 the President of the Fifth Section decided to
communicate the above complaints to the Government and to grant
priority to the application under Rule 41 of the Rules of Court. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Kicevo.
- At
11.30 a.m. on 12 February 2009 the applicant was arrested and taken
into police custody. On 13 February 2009 an investigating judge from
the Gostivar Court of First Instance (“the trial court”)
questioned the applicant, who was assisted by counsel. An
investigation was opened on the grounds of reasonable suspicion of
extortion of money from a minor. The investigating judge refused a
request by the public prosecutor for the applicant to be detained in
prison, but ordered, instead, thirty days' house arrest (куќен
притвор). That measure
required the applicant to remain at home and to refrain from using
any means of communication for the duration of the order. His
passport was also seized and the police were ordered to check his
presence in the house twice a day. The judge considered that there
were reasonable grounds for suspecting the applicant of having
committed the offence, but that in the light of his clean record and
family circumstances, a non-custodial measure, such as house arrest,
was preferable. The applicant's house arrest was ordered on all the
grounds specified in section 199 of the Criminal Proceedings Act (see
paragraph 14 below). This decision was served on the applicant and
his lawyer at 5 p.m.
- At
7 p.m. the same day, the public prosecutor appealed on the ground
that the investigating judge had not provided sufficient reasons for
refusing to detain the applicant in prison and had not examined
whether house arrest could be supervised effectively. The applicant
did not appeal.
- On
14 February 2009 a three-judge panel of the trial court (“the
panel”), sitting in private, allowed the appeal and replaced
the order for the applicant's house arrest with an order for his
detention in prison. It further quashed the order for the
confiscation of the applicant's passport. The panel found that there
was a danger that the applicant would interfere with the
investigation, in particular by putting pressure on witnesses who had
not been heard yet and on the victim, who, being a minor, was
vulnerable. Having regard to the gravity of the offence and the way
in which it had been committed, the panel ruled that house arrest was
an inadequate measure in the applicant's case. This decision was
served on the applicant at noon. No appeal lay against the panel's
decision.
- On
26 February 2009 the investigating judge terminated the panels' order
for the applicant's detention in prison and ordered thirty days'
house arrest accompanied by the same security measures described
above (see paragraph 6 above). The judge found no justification for
the applicant's continued detention in prison since the investigation
had been completed. In this connection, he noted that evidence had
been taken from the victim and witnesses proposed by both parties.
Given the accompanying measures ordered, there was no likelihood of
reoffending or obstructing the course of justice by influencing other
witnesses, if any.
- On
27 February 2009 the panel dismissed the public prosecutor's appeal,
finding the house arrest and accompanying measures adequate to ensure
the applicant's attendance at the trial.
- The
panel, sitting in first instance, extended the applicant's house
arrest on two occasions, namely, on 26 March and 24 April 2009,
with the stated aim of ensuring his attendance at trial. In doing so,
it relied on the gravity of the charges and potential penalty. The
applicant unsuccessfully appealed against both orders. The Gostivar
Court of Appeal's decisions dismissing the applicant's appeals dated
23 April and 20 May 2009 respectively.
- On
21 May 2009 the trial court convicted the applicant of extortion and
sentenced him to one and a half years' imprisonment. It further
extended the house arrest order until the criminal proceedings are
completed. The proceedings are underway.
II. RELEVANT DOMESTIC LAW
- Section
22(6) of the Criminal Proceedings Act (“the Act”)
provides that a three-judge panel of the trial court decides, inter
alia, appeals against decisions of the investigating judge.
- Under
section 199(1), paragraphs 1-3, of the Act, pre-trial detention can
be ordered on reasonable suspicion that the person concerned has
committed an offence if there is a risk of his or her absconding,
interfering with the investigation or reoffending.
- Under
section 200(1), (6) and (8) of the Act, an investigating judge has
jurisdiction to order pre-trial detention. The detainee may challenge
the detention order before the panel within 24 hours. The appeal does
not suspend the execution of the detention order. The panel must
decide the appeal within 48 hours. The detainee, through his or her
lawyer, can request to be notified of the date of the hearing before
the panel in order to be able to present his or her arguments orally.
- Section
205(2) and (6) of the Act provides that the panel, set up under
section 22(6), may extend the period of detention by up to 60 days at
the request of the investigating judge. Such an order can be
challenged before the next level of jurisdiction.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Articles 5 and 6 of the Convention that
the panel had not given reasons for detaining him in prison and that
the latter's decision of 14 February 2009 had been given in private
following the public prosecutor's appeal, which had not been
communicated to him. He also invoked Article 13 of the Convention.
The Court considers that Articles 6 and 13 complaints are in fact a
restatement of the complaints under Article 5 of the Convention and
should be considered accordingly. This Article, in so far as
relevant, reads as follows:
Article 5 §§ 3 and 4
“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
1. The parties' submissions
- The
Government submitted that the applicant had not exhausted all
effective domestic remedies, although he was represented by a lawyer.
In particular, he had not appealed against the investigating judge's
decision of 13 February 2009 as had been the case in respect of the
decisions of 26 March and 24 April 2009 respectively (see
paragraph 11 above). He had also failed to raise his complaints
before any domestic authority.
- The
applicant contested the Government's objection as irrelevant for the
complaints brought before the Court. He further argued that the
panel's decision of 14 February 2009 had been served on him before
the time-limit specified in section 200 (6) of the Act had expired.
Any appeal after the service would have lacked any prospect of
success.
2. The Court's assessment
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. Article 35 § 1 also requires
that the complaints intended to be brought subsequently before the
Court should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal requirements
laid down in domestic law, but not that recourse should be had to
remedies which are inadequate or ineffective (see, mutatis
mutandis, Merger and Cros v. France (dec.), no. 68864/01,
11 March 2004; Aksoy v. Turkey, 18 December 1996, §§
51-52, ECHR 1996-VI; and Akdivar and Others v. Turkey, 16
September 1996, §§ 65-67, ECHR 1996-IV).
- The
Court emphasises that the application of the exhaustion rule must
make due allowance for the fact that it is being applied in the
context of machinery for the protection of human rights and that it
must be applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the
purposes of reviewing whether it has been observed, it is essential
to have regard to the circumstances of the individual case. This
means, in particular, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting State concerned, but also of the general context in which
they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case,
the applicant did everything that could reasonably be expected of him
or her to exhaust domestic remedies (see Jasar v. the former
Yugoslav Republic of Macedonia (dec.), no. 69908/01, 19 January
and 11 April 2006).
- As
regards the present case, the Court notes that the investigating
judge initially placed the applicant under house arrest. Following
the public prosecutor's appeal, the panel quashed that order and
replaced it with the order for detention in prison. The applicant did
not appeal against the decision of the investigating judge, although
he was entitled to do so under section 200 (6) of the Act. However,
that appeal would have been effective only in respect of the
investigating judge's decision as evidenced from the public
prosecutor's appeal, which led to the quashing of the decision of
13 February 2009. It would not have any bearing on the alleged
violations in the proceedings before the panel. In such
circumstances, the Court considers that the Government's objection
must be rejected.
- As
to the applicant's complaint that the panel's decision of 14 February
2009 was not reasoned, the Court notes that it was given on
reasonable suspicion that the applicant had extorted money from a
minor. It was based on the panel's finding that the applicant might
obstruct the course of justice by putting pressure, in particular, on
the victim, taking into account that he was a minor. The absence of
evidence from other proposed witnesses was also taken into
consideration when finding house arrest to be an inadequate measure
at that time.
- In
such circumstances, the Court finds that the panel's decision of
14 February 2009 replacing the initial order for house arrest
was sufficiently reasoned. The Court notes that after the
investigation had been completed and proposed evidence collected,
this order was replaced with a fresh order for house arrest. The
applicant remained in prison for 12 days, instead of 30 days as
ordered by the panel. It follows that this complaint must be rejected
as manifestly ill-founded pursuant to Article 35 §§ 3 and 4
of the Convention.
- As
regards the remaining complaints in respect of the panel's decision
of 14 February 2009, the Court finds that they are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant reiterated his complaints that the proceedings before the
panel had violated the principle of the equality of arms because the
public prosecutor's appeal had not been served on him. As a result,
he could not have requested the panel to notify him of the date of
the hearing.
- The
Government submitted that the impugned proceedings had been in
compliance with Article 5 of the Convention. They conceded, however,
that the public prosecutor's appeal of 13 February 2009 was not
communicated to the applicant.
- They
further argued that the applicant had not requested to be notified of
the date of the hearing before the panel, as specified in section 200
(8) of the Act. This latter provision had not imposed a duty on the
panel to notify the interested parties, but rather stipulated that
they had a right to make such a request.
2. The Court's consideration
- The
present case concerns proceedings in which the appeal panel of the
Gostivar Court of First Instance reviewed the lawfulness of the
applicant's initial house arrest ordered by the investigating judge
on 13 February 2009. The applicant's complaints therefore fall
to be examined under Article 5 § 4 of the Convention, which
requires, in respect of a person detained under Article
5 § 1 (c), as in the present case, adversarial
proceedings and a hearing (see Reinprecht v.
Austria, no. 67175/01, § 31, ECHR 2005 XII). It
further reiterates that in proceedings in which an appeal against
detention order is being examined, “equality of arms”
between the parties, the prosecutor and the detained person must be
ensured (see Nikolova v. Bulgaria [GC], no. 31195/96, §
59, ECHR 1999 II and Niedbała v. Poland, no.
27915/95, § 66, 4 July 2000).
- The
Court notes that the public prosecutor filed an appeal against the
decision of the investigating judge of 13 February 2009 to
place the applicant under house arrest. The panel, sitting in second
instance, quashed the impugned decision and replaced it with the
order for detention in prison. The appeal, as conceded by the
Government, was not served on the applicant. The Court considers that
that procedural failure prevented him from effectively participating
in the proceedings before the panel.
- Furthermore,
the panel decided at a hearing held in private. Since the applicant
was heard by the investigating judge (see paragraph 6 above), there
would be no need, in principle, for his repeated examination at
second instance. However, the Court notes that the panel replaced the
initial house arrest, as a more lenient security measure, with the
detention in prison. That decision entailed a change in the nature of
the place of detention, from a private home to a public institution,
as well as a substantial change in the conditions of detention. In
such circumstances, the Court considers that the panel's decision of
14 February 2009 is to be regarded as a fresh detention order,
different from the initial house arrest, which required the applicant
to be given an opportunity to present his arguments orally before the
panel (see, mutatis mutandis, Mancini v. Italy, no.
44955/98, §§ 19 and 20, ECHR 2001 IX). Being unaware
of the public prosecutor's appeal, the applicant was unable to avail
himself of the right provided for in section 200 (8) of the Act.
- Consequently,
there has been a violation of Article 5 § 4 of the Convention on
both grounds.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim as unsubstantiated.
- The
Court reiterates that just satisfaction can be awarded only in
respect of damage resulting from a deprivation of liberty that the
applicant would not have suffered if he or she had had the benefit of
the guarantees of Article 5 § 4 of the Convention. In the
present case, the Court cannot speculate as to whether the applicant
would have been detained in prison had the procedural guarantees of
Article 5 § 4 been respected in his case. Consequently, the
Court considers that the non-pecuniary damage is adequately
compensated by the finding of a violation of this latter provision
(see Nikolova, § 76 and Niedbała, §§
88 and 89, cited above).
B. Costs and expenses
- The
applicant also claimed EUR 900 for the costs and expenses incurred
before the Court. He provided an itemised list of costs based on the
scale rates of the Macedonian Bar.
- The
Government contested this claim.
- Regard
being had to the documents in its possession, the Court considers it
reasonable to award the sum of EUR 765 for the proceedings before the
Court, plus any tax that may be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints concerning the alleged
violation of the principle of equality of arms and the absence of an
oral hearing before the panel admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 4 of the Convention in respect of the principle of equality
of arms and the absence of an oral hearing before the appeal panel;
- Holds that the finding of a violation of Article
5 § 4 in itself constitutes sufficient just satisfaction in
respect of any non-pecuniary damage suffered by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 765 (seven
hundred and sixty five euros) in respect of costs and expenses, plus
any tax that may be chargeable on him, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
