European Court of Human Rights

 

 

SECOND SECTION

CASE OF DOCEVSKA-BOZHINOVSKA v. NORTH MACEDONIA

(Application no. 25190/18)

 

 

 

 

JUDGMENT

STRASBOURG

9 May 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Docevska-Bozhinovska 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. 25190/18) 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 23 May 2018 by a Macedonian/citizen of the Republic of North Macedonia, Ms Elena Docevska-Bozhinovska (“the applicant”), who was born in 1980 and lives in Kumanovo and who was represented by Ms P. Zefikj, a lawyer practising in Skopje;

the decision to give notice of the complaints concerning the alleged violation of the applicant’s procedural rights in the proceedings for her pre-trial detention 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 11 April 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged inability of the applicant to challenge submissions by the public prosecutor in the proceedings for her pre-trial detention and the lack of a speedy review of that detention.

2.  On 30 November 2017 a three-judge panel of the Skopje Court of First Instance replaced the applicant’s house arrest with detention in prison. That order was made on the basis of an appeal by the public prosecutor received by the court earlier that day, which was served on the applicant on 1 December 2017. After a hearing held on 12 December 2017 in the presence of the applicant’s two lawyers, the Skopje Court of Appeal (“the appellate court”) dismissed an appeal by the applicant against the detention order.

3.  Subsequently, the applicant’s detention was extended. An appeal lodged by the applicant on 28 December 2017 against the extension was examined by the appellate court on 15 January 2018. Its decision dismissing the appeal was served on the applicant on 18 January 2018.

4.  The criminal proceedings against the applicant were subsequently stayed under the Amnesty Act concerning the events which formed the background to those criminal proceedings, known as the events of 27 April 2017 in the Parliament of the respondent State.

5.  The applicant complained about the detention proceedings, submitting in particular that the public prosecutor’s appeal of 30 November 2017 had not been served on her, and about the length of the detention review proceedings.

THE COURT’S ASSESSMENT

I.        Admissibility

6.  The Government submitted that the applicant had not lodged a compensation claim for unjust deprivation of liberty under the relevant statutory provisions as 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 the non-exhaustion objection.

7.  The Court also dismisses the Government’s objection that the applicant suffered no significant disadvantage, for the purposes of Article 35 § 3 (b) of the Convention, as a result of the delay in serving the public prosecutor’s appeal on her in the detention proceedings at issue (see, for example, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 68‑82, 28 October 2014). Furthermore, the fact that the applicant could not challenge the appellate court’s decisions in the detention review proceedings any further does not mean that she did not suffer a significant disadvantage as a result of the alleged lack of “speediness” in reviewing her detention.

8.  Lastly, the applicant’s failure to inform the Court in her application concerning the review of her pre-trial detention that the criminal proceedings against her had subsequently been stayed (see paragraph 4 above) and her statement in her application that the public prosecutor’s appeal (see paragraph 2 above) was not served on her - whereas it had in fact been served on her, but only after the impugned detention decision had already been taken – do 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).

9.  The Court further notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

II.     Merits

A.    Alleged inability to challenge the public prosecutor’s submissions in the detention proceedings

10.  The applicant’s complaint about her inability to challenge the public prosecutor’s submissions in the detention proceedings falls to be examined under Article 5 § 4 of the Convention.

11.  The general principles relating to this issue are summarised in, for example, Nikolova v. Bulgaria ([GC], no. 31195/96, § 58, ECHR 1999‑II).

12.  While it is true that, as argued by the Government, the public prosecutor’s appeal in the present case was in fact served on the applicant, the Court notes that this was done only after the detention order had been made by the three-judge panel (compare also Gábor Nagy v. Hungary (no. 2), no. 73999/14, § 87, 11 April 2017). Accordingly, the applicant was not given the opportunity, before her detention in prison custody was ordered, to have knowledge of and comment on the submissions made by the prosecutor in the appeal. Contrary to the Government’s arguments, the prosecutor’s appeal was obviously apt to persuade the adjudicating panel of the need to replace the order for the house arrest of the applicant with an order for her detention in prison custody (see, conversely, Süveges v. Hungary, no. 50255/12, § 113, 5 January 2016).

13.  The Government further argued that the present case differed from the case of Mitreski v. the former Yugoslav Republic of Macedonia (no. 11621/09, 25 March 2010) in that the applicant in the present case had been able to challenge the order for her detention in prison custody in the appellate court, which had held a public hearing at which the applicant’s two lawyers had been able to present her arguments. The Court notes that the applicant was detained on the same evening that the order in question was issued. The appeal hearing took place on the twelfth day of her detention and in her absence. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned (see Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001‑I), the Court finds that the proceedings before the appellate court could not remedy the defects in the proceedings in which the detention order was made (see, mutatis mutandis, Novruz Ismayilov v. Azerbaijan, no. 16794/05, § 86, 20 February 2014).

14.  There has accordingly been a violation of Article 5 § 4 of the Convention in respect of this complaint.

B.    Speediness of the detention review proceedings

15.  The relevant principles regarding the applicant’s complaint about a lack of speediness of the proceedings for review of her detention, which falls to be examined under Article 5 § 4 of the Convention, have been summarised in, for example, Ramkovski v. the former Yugoslav Republic of Macedonia (no. 33566/11, § 73, 8 February 2018) and Shakurov v. Russia (no. 55822/10, § 180, 5 June 2012).

16.  In the present case, the appellate court examined the applicant’s appeal against the extension order eighteen days after it had been lodged; its decision was served on the applicant twenty-one days after the appeal was lodged (compare Ramkovski, cited above, § 74, in which the Court found no violation in a case in which the decision on the appeal had been served on the applicant fourteen days after the appeal was lodged). There is no indication, and nor have the Government argued, that the applicant contributed to the delay (see, conversely, Pichugin v. Russia, no. 38623/03, § 154, 23 October 2012). In view of its case-law (see, for example, Snyatovskiy v. Russia, no. 10341/07, § 65, 13 December 2016) the Court considers that this delay was excessive.

17.  There has accordingly also been a violation of Article 5 § 4 of the Convention in respect of this complaint.

C.    Other complaints

18.  The applicant also complained under Article 5 of the Convention about the failure to serve on her the public prosecutor’s proposal for the extension of her detention (see paragraph 3 above) and about the lack of a speedy review of her detention ordered on 30 November 2017 (see paragraph 2 above). Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present applications and that there is no need to give a separate ruling on the other complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant claimed 1,500 euros (EUR), without specifying whether her claim concerned pecuniary or non-pecuniary damage, and the equivalent of EUR 1,215 in respect of costs and expenses incurred before the Court.

20.  The Government contested that claim.

21.  The Court considers that the non-pecuniary damage suffered by the applicant on account of the delay in serving the public prosecutor’s appeal on her is adequately compensated for by the finding of a violation of Article 5 § 4 (see Mitreski, cited above, § 36). On the other hand, it awards the applicant EUR 750 plus any tax that may be chargeable in respect of non‑pecuniary damage suffered as a result of the lack of a speedy review of her detention.

22.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 850 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to her.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints about the delay in serving the public prosecutor’s appeal on the applicant and the length of the review proceedings concerning the extension of her detention admissible;

2.      Holds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to timely serve the public prosecutor’s appeal against the order for the applicant’s house arrest on her;

3.      Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a speedy review of the applicant’s detention;

4.      Holds that it is not necessary to examine the admissibility and merits of the applicant’s other complaints;

5.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant on account of the failure to timely serve the public prosecutor’s appeal against the order for the applicant’s house arrest on her;

6.      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 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage resulting from the lack of a speedy review of her detention;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, 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;

7.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                      Lorraine Schembri Orland
          Deputy Registrar                                                      President