European Court of Human Rights

FIRST SECTION

Application no. 46398/09
Dimitar MILADINOV against the former Yugoslav Republic of Macedonia
and 2 other applications
(see Annex appended)

STATEMENT OF FACTS

THE FACTS

The applicants are Macedonian nationals (for personal details, see Annex appended). They are represented before the Court by Mr D. Godžo and Mr A. Godžo, lawyers practising in Ohrid.

A.  The circumstances of the case

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 23 December 2008 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against fifteen persons, including the applicants, on reasonable suspicion of money laundering. In respect of the first applicant, the investigation concerned also charges of abuse of office, fraud and forgery, and as regards the third applicant, charges of fraud. After having heard oral evidence from the applicants, the investigating judge, in a single decision, ordered thirty-day pre-trial detention for all the accused. The detention order was based on all the grounds specified under section 184 § 1 (1-3) of the Criminal Proceedings Act (“the Act”, see “Relevant domestic law” below), namely a risk of absconding and reoffending, and of interference with the investigation. The judge relied on the gravity of the charges, the potential penalty and the possibility of influencing witnesses, accomplices and other persons concerned.

On 25 December 2008 a three-judge panel of the trial court (“the panel”), set up under section 22 § 6 of the Act, sitting in private, dismissed an appeal submitted by the first applicant. On the basis of an appeal by the second applicant, on 26 December 2008 the panel replaced the order for prison custody with an order for house arrest in respect of this applicant.

Between 21 January and 20 March 2009 the panel extended the detention order on three occasions in respect of all applicants. The extension was based on all three counts until 20 March 2009 when the panel excluded “the interference with the investigation” from the list of grounds concerning the applicants’ detention. It was so since on that date an indictment had been lodged against the applicants. According to the applicants, the indictment was communicated to them on 6 April 2009. The risk of absconding was justified by the potential penalty and the gravity of the charges. The panel further made a reference to the fact that the first applicant had a previous criminal record. Without giving further explanation, it also found that the personal circumstances of the applicants, namely the fact that they had families and possessions in the respondent State, were insufficient to justify their release. As to the possibility of reoffending, in the decision of 20 March 2009, the panel stated inter alia:

“... the panel had into consideration the nature of offences, the manner and conditions under which they have been committed, which makes likely the possibility of reoffending. A particular attention is given to the fact that the criminal offences with which the accused are charged have been committed by means of an abuse of office by the accused. In particular, [the first and third applicants] are owners of several companies through which the offences, with which they are charged, were committed ...”

Between 16 April and 16 September 2009 the panel, sitting in private, extended the detention order on several occasions for the same reasons as described above. It only added that the detention order had secured the applicants’ attendance at the trial, which had a positive bearing on their right to a hearing within a reasonable time.

On 28 May 2009 Mr D. Godžo visited the first applicant in Skopje prison. On that occasion, the first applicant signed a letter of authority for the proceedings before the Strasbourg Court. The prison administration retained that document since Mr D. Godžo had not made an advance notification that such 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 18 days the retained document was returned to Mr D. Godžo.

On 18 September 2009 the panel replaced the order for house arrest in respect of the second applicant with a more lenient measure, namely seizure of his passport.

Between 15 October 2009 and 14 January 2010 respectively the order for prison custody in respect of the first and third applicants was extended on several occasions for the same reasons as described above.

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 allegedly had suffered from a chronic illness and needed regular medical care). They also complained that the wording used in the impugned decisions violated the presumption of innocence as guaranteed in the Act and the Convention. They further sought release and replacement of the detention order by a more lenient measure.

The Skopje Court of Appeal, sitting in private, dismissed the appeals finding that the panel had given sufficient reasons for the applicants’ continued detention. It further dismissed the remaining complaints as ill-founded. In the decisions, the Court of Appeal referred to written submissions in which the public prosecutor requested that the court dismiss the applicants’ appeals. In its decisions of 5 October and 2 November 2009 it also dismissed the requests of the first and third applicants to be notified of the date of its sessions (???????) finding that section 388 (1) of the Act (the court referred to the relevant provision of the consolidated version of the Act, which text was identical to section 362 (1) of the Act, see “Relevant domestic law”) was inapplicable to their case.

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.

On 24 September 2010 the Skopje Court of Appeal accepted the appeals submitted by the applicants’ and the public prosecutor and quashed the trial court’s judgment. It also ordered for the first and third applicants’ release stating that there were no grounds to justify their detention.

The proceedings are still pending before the trial court.

B.  Relevant domestic law

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

Under section 183 § 2 of the Act, detention in prison should be as brief as possible.

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

Under section 185 §§ 1 and 5 of the Act, an investigating judge had jurisdiction to order pre-trial detention. The person concerned could appeal before the panel.

Section 189 § 3 of the Act provided for the panel set up under section 22 § 6 to extend the detention. The extension order could be challenged before the court above.

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

COMPLAINTS

The applicants complain under Articles 5 and 6 of the Convention that the domestic courts did not give concrete and sufficient reasons for their detention; that there was no oral hearing in the proceedings for reviewing the detention on remand; that the review proceedings were not adversarial since the public prosecutor’s written observations submitted in reply to their appeals were not communicated to them; and that the panel violated the principle of presumption of innocence. They further complain that the indictment was not promptly communicated to them; that their defence rights and the principle of equality of arms were violated since they had to obtain judge’s approval for inspection of the case file and they were also required, unlike the public prosecutor, to pay for copying of documents in the case file which altogether ran to over 10,000 pages. The first and third applicants further complain that a prison guard was always present at meetings with their lawyer. The incident of 28 May 2009 (see “the Facts” above) was in support of that complaint.

QUESTIONS TO THE PARTIES

1.  Were the grounds given by the courts concerning the extension of the applicants’ pre-trial detention “relevant and sufficient” as required under Article 5 § 3 of the Convention? (see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, 28 October 2010)?

2.  Was the procedure before the panel adversarial, in conformity with Article 5 § 4 of the Convention? In particular, were the public prosecutor’s written observations submitted in reply to the applicants’ appeals against the panels’ decisions communicated to the applicants?

3. Was the panel required to hold an oral hearing when extending the applicants’ detention on remand?

4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see, mutatis mutandis, Matijaševic v. Serbia, no. 23037/04, ECHR 2006-X)?

Annex