Communicated on 19 May 2015
FIRST SECTION
Applications nos. 78392/14 and 2229/15
Dragi BILESKI against the former Yugoslav Republic of Macedonia and
Petar KARAJANOV against the former Yugoslav Republic of Macedonia
STATEMENT OF FACTS
The applicants are Macedonian nationals. For their personal details see the attached Appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 78392/14 lodged by Mr Dragi Bileski
On 2 February 2010 the applicant, a trial court judge at the time and a public official, submitted a written statement in which he denied that he had cooperated with the State security bodies after 1944. Such a statement was to be submitted to a Commission on verification of facts (“the Commissions”) by public officials and it was required under the 2008 Act on determining of additional condition for performance of public functions (“the 2008 Lustration Act”). With a decision of 12 September 2011, the Commission confirmed that the applicant satisfied the additional condition for performance of the office of a judge.
In June 2012 a new Act on determining a criterion for limiting the exercise of public office, access to documents and publishing, the co-operation with the bodies of the State security (“the 2012 Lustration Act”) entered into force replacing the 2008 Lustration Act. The 2012 Lustration Act provided that a holder of public office could be disqualified from the office and prevented to perform any public duty if the Commission establish that he or she was registered as “a secret collaborator, operational liaison or secret informant (таен соработник, оперативна врска или таен информатор) with the State security bodies. Under section 18 of the 2012 Lustration Act, the cooperation with the security bodies should be inter alia “intentional, secret, organised and continuous” and it should entail “material benefit or a privilege in employment or career advancement”.
On 16 November 2012 the Commission reopened (with a separate decision/ заклучок) ex officio the proceedings in respect of the applicant and on the basis of “new facts and evidence” quashed (with a separate decision) its decision of September 201. As stated in the decision, the Commission had decided on the basis of an application and a request for access to information submitted by a third person and established that the applicant had been an operational liaison with the security bodies since he had provided them with relevant information about third persons. The Commission referred to certain files and documents, which, according to it, confirmed that the applicant’s cooperation with the State security bodies had satisfied the criteria specified in section 18 of the 2012 Lustration Act.
As provided for in sections 14 and 28 of the 2012 Lustration Act, the Commission published its decision on its web site. It contained the applicant’s full name, date and place of birth, his single identification number and the public office which he held (section 31 of the 2012 Lustration Act).
On 20 November 2012 an article was published in a newspaper “Focus” in which it was stated that inter alia “an actual judge from Kičevo did not pass the lustration filter ... It concerns a lawyer whose declaration for non-cooperation with the [security] bodies has been previously confirmed by the ‘lustrators’. He was subject to lustration under the new legislation which provides that third persons can make an initiative [for lustration].”
The applicant sought and obtained a copy of the documents to which the Commission referred in its decision. They were anonymised since they did not contain personal information about the inspector(s) who had drawn up the notes and the third persons allegedly affected by the information provided by the applicant. The documents were not signed by the applicant or the responsible officer.
In a written statement of 27 November 2012 certified by a notary public, P.K., the responsible officer who had drawn up the documents to which the Commission had referred, disputed their veracity and denied that the applicant had cooperated with the security bodies; and that he had not been aware that any information given by him had been recorded.
On 30 November 2012 the applicant challenged the Commission’s decision before the Administrative Court. He complained inter alia that the Commission had not held an oral hearing; that it had not provided sufficient reasoning for its findings; that in the case file there had been no application for initiation of proceedings by a third person as stated in the Commission’s decision; he challenged the veracity and authenticity of the relevant documents on which the Commission had relied (in this respect he submitted a letter from the Intelligence Service dated 2013, in which that Service confirmed that the applicant had not been registered in their records). Alternatively, he also denied that his cooperation with the security services, if any, had satisfied the criteria specified in section 18 of 2012 Lustration Act. He requested that the court held a public and oral hearing at which it would hear oral evidence from P.K. and an expert, V.P., a former intelligence officer, regarding the veracity of the relevant documents and procedural rules in recruiting informants and collaborators.
On a hearing held in private on 20 December 2013, the Administrative Court dismissed the applicant’s claim. It held that the Commission had established, on the basis of relevant documents which authenticity could not be put into question (the court compared the documents in the applicant’s file, which were in copy, with the original version), that the applicant had collaborated with the National Security Office (Служба за државна безбедност) with which he had shared valuable information about third persons. Such collaboration had met the criteria specified in section 18 of the 2012 Lustration Act. The court analysed the information recorded in the documents and found that the Commission’s findings had been correct. In this respect it gave no weight to the written statement of P.K. Given the general obligation to cooperate with the Commission, the court ruled that it had not been decisive who had submitted the application for renewed proceedings against the applicant. The court held that there was no need for an oral hearing since the Commission had correctly established the relevant facts on the basis of written material.
The applicant appealed against this decision reiterating his complaints and arguing that no oral hearing had been held; that the impugned decision had been delivered on the basis of 2012 Lustration Act notwithstanding that the Commission’s decision of September 2011 had been delivered under the 2008 Lustration Act; that no explanation had been given for non-examination of P.K. and V.P.; that the Administrative Court had not obtained, albeit stated to the contrary, the original version of the relevant written documents. He requested again an oral hearing and examination of P.K. and P.V.
On a hearing held in private on 12 June 2014, the Higher Administrative Court dismissed the applicant’s appeal and upheld the lower court’s decision. After it had obtained from the State Archives the original version of the relevant documents, the court found that the Commission had not overstepped its jurisdiction and had established that, on the basis of those documents, the applicant had cooperated with the State security bodies.
On 15 July 2014 the State Judicial Council declared, under the 2012 Lustration Act, that the applicant’s office of a judge terminated (престанок на вршење на судиската функција). According to the instruction on legal remedies specified in the decision, it was not amenable to an appeal.
B. Application no. 2229/15 lodged by Mr Petar Karajanov
The applicant was a holder of high-ranking offices during the communist time. On 28 May 2013 the Commission informed him that it had delivered a decision in which it had established that he had been an informant within the meaning of the 2012 Lustration Act. On 30 May 2013 the decision, containing all personal information of the applicant (see above), was published on the Commission’s web site. On 4 June 2013 the applicant was served with the decision. The Commission’s findings were based on two files from which “it was confirmed indisputably that [the applicant] had provided the State security bodies with information for certain persons”.
The Commission established that in 1963, during the visit of his brother in Sweden, the applicant had given information about his brother and wife, as well as for other persons, to State security bodies. He had given this information after he had returned in Gevgelija (a city in the respondent State). The Commission established that the applicant had been engaged before he had left to Sweden and that according to the documents the security bodies would continue collaborating with the applicant (file no.6825). The file further noted that in 1964 the applicant had shared with his father his impressions about his stay in Sweden.
On the basis of documents filed under no. 2599, the Commission established that the applicant, while he had been an editor-in-chief of a newspaper and subsequently, had provided the security bodies with information about a colleague, the latter’s articles and relations with third persons.
On 11 June 2013 the applicant challenged this decision before the Administrative Court arguing that the Commission’s findings based on file no. 6825 had been wrong since that file had not concerned him, but obviously another person with the same name as the applicant’s. In this connection he submitted a copy of a) his birth certificate according to which the date of his birth was different from that specified in the file no. 6825; b) an inheritance decision, certified by a notary public, attesting that the applicant had a sister and not a brother; c) his military card, certified by a notary public, according to which in 1963 he had been in military service in Bosnia and Herzegovina; d) a death certificate according to which his father had died in 1962; as well as other relevant information that the lustration decision in his case had been a result of a mistaken identity. He also argued that he had never visited Sweden and that since 1955 he had been living in Skopje. He also challenged the veracity and authenticity of the documents recorded in file no. 2599 and denied that he had ever collaborated with or provided any information about any colleague to the State security bodies, let alone that any such collaboration had satisfied the criteria specified in section 18 of the 2012 Lustration Act. In this connection he submitted that none of the documents in that file had been signed by him. Lastly, he complained about the fact that the Commission’s decision published on its web site had contained the name of his father although the 2012 Lustration Act had not provided for such an opportunity. He argued that his reputation, dignity, personal data and integrity had been compromised.
On a hearing held in private on 29 January 2014, the Administrative Court dismissed the applicant’s claim. Relying on the relevant statutory provisions, the court held that the Commission had correctly established the facts and applied relevant law. As regards the applicant’s complaints of mistaken identity, the court stated that “the Commission’s decision clearly established collaboration with security bodies of (the applicant), whose single identification number, place of birth and office that he had held, are cited.” As to his arguments that none of the documents to which the Commission referred in its decision had been signed by him, the court held that he was entitled to “obtain access to documents attesting to his collaboration and that in case of a doubt about their veracity, he could have initiated proceedings before competent court in order to prove their inaccuracy, before the impugned decision was delivered.” The court held that there was no need to hold an oral hearing since the Commission had correctly established the relevant facts on the basis of written material and the applicant had not proposed evidence that would lead to different facts.
On a hearing held in private on 7 March 2014, the applicant appealed against this decision before the Higher Administrative Court. He reiterated his complaints raised in his lawsuit before the Administrative Court and submitted that this latter court had not provided any reason regarding his complaints that the publication of the Commission’s decision had violated his right to respect for his private and family life, as well as his reputation and dignity; that it had disregarded his evidence that file no.6825 had not concerned him, but another person with the same name; that it had relied on the evidence adduced by the Commission without analysing them in an adversary proceedings in the presence of the applicant or any other relevant witness or expert. He complained that the lower authorities had not explained why they had considered that he had collaborated with the security bodies in a intentional, secret, organised and continuing manner, as provided for under the 2012 Lustration Act. He further complained about the lack of an oral hearing before the Administrative Court and its explanation regarding possible legal avenues through which he could have eventually challenged the veracity of the documents in the file no. 2599.
On 12 June 2014 the Higher Administrative Court dismissed the applicant’s appeal and confirmed the lower court’s decision. It found no grounds to depart from the established facts and the reasons given by the lower authorities. In this connection it stated that “the (Commission) only verifies facts as to whether there was collaboration with security bodies; [since] there are no adversarial proceedings, documents created and stored by the [security bodies] are regarded as facts.”
COMPLAINTS
The applicants complain under Article 6 of the Convention that they were deprived of the opportunity effectively to present their cases. In this connection they complain about the lack of an oral hearing; about the authorities’ refusal to admit and consider evidence and examine witnesses proposed by them; that the authorities did not provide sufficient reasons for their decisions; that Mr Bileski was given limited access to the relevant documents. They further complain under Article 6 § 2 of the Convention about the publication of the Commission’s decision on its web site before it became final. In this later context Mr Karajanov also complained under Article 8 of the Convention.
Under Article 8 of the Convention, Mr Bileski complains that the authorities created, stored and made public information about him without his consent, which had adverse effects on his private and family life, as well as on his reputation and right to perform the office of a judge.
Lastly, the applicants complain of a lack of an effective remedy within the meaning of Article 13, taken in conjunction with their grievances under Articles 6 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Was Article 6 of the Convention, in its civil or criminal limb, applicable to the impugned proceedings in the present cases? If so, did the applicants have a fair hearing in accordance with Article 6 of the Convention? In particular,
(a) Was the principle of equality of arms and adversariness of the proceedings respected, as regards the applicants’ right effectively to participate in the impugned proceedings? In the latter context, were they given the opportunity to present evidence in their favour and to obtain the attendance of witnesses on their behalf, as required by this Article? Was Mr Bileski given sufficient access to the case file in view of his allegations that the documentary evidence to which the Commission referred in its decision were anonymized?
(b) Has there been a public hearing in the present cases, as required by Article 6 of the Convention?
(c) Did the decisions in the applicants’ cases contain sufficient reasons, as required under Article 6 of the Convention?
(d) If Article 6, in its criminal limb, applies to the impugned proceedings, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present cases given the publication of the Commission’s decision on its web site before it became final?
2. Has there been a violation of the applicants’ right to respect for their private life, within the meaning of Article 8 of the Convention? In particular,
(a) Were the safeguards inherent in this Article respected in the impugned proceedings regarding Mr Bileski (application no. 78392/14)?;
(b) Regarding Mr Karajanov, was the publication of the Commission’s decision on its web site before it became final compatible with the requirements of this Article (application no. 2229/15)?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8, as required by Article 13 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name
date of birth
place of residence
Represented by
78392/14
11/12/2014
Dragi BILESKI
15/01/1951
Kičevo
2229/15
30/12/2014
Petar KARAJANOV
04/05/1936
Skopje
Helsinki Committee for Human Rights
Full & Egal Universal Law Academy