SECOND SECTION
CASE OF DIMCHEVSKA v. NORTH MACEDONIA
(Application no. 13919/18)
JUDGMENT
STRASBOURG
4 April 2023
This judgment is final but it may be subject to editorial revision.
In the case of Dimchevska 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. 13919/18) 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 15 March 2018 by a Macedonian/citizen of the Republic of North Macedonia, Ms Stojna Dimchevska (“the applicant”), who was born in 1960 and lives in Attendorn, Germany, and was represented by Mr B. Kuzmanoski, a lawyer practising in Skopje;
the decision to give notice of the complaint concerning the applicant’s inability to obtain a retrial following her conviction in absentia 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 14 March 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s inability to obtain a retrial following her criminal conviction in proceedings in which she did not participate.
2. On 12 August 2015 the Veles Court of First Instance (“the trial court”), in written proceedings, imposed a penal order (казнен налог – hereinafter “the order”) on the applicant for using a document with false content (употреба на исправа со невистинита содржина) and sentenced her to three months’ imprisonment, suspended for one year. Two attempts to serve the order on the applicant were unsuccessful, as she was in Germany at the material time. In September 2015 the trial court appointed a lawyer to the applicant and posted the order on the court’s notice board. In the absence of an objection (“приговор”) against it, on 6 October 2015 the order became final.
3. On 1 September 2017 the applicant learned about the conviction when the order was submitted in evidence by the defendant in civil proceedings initiated by the applicant.
4. On 28 September 2017 the applicant requested that the criminal proceedings be reopened on the grounds that her trial had been held in absentia and new facts and evidence had come to light. The trial court dismissed her request, finding that (i) the evidence admitted and the facts established in the criminal proceedings had been sufficient to convict the applicant and the evidence proposed by her could not have altered the outcome of the criminal proceedings, and (ii) she had been assigned a court-appointed lawyer, who had not challenged the order. The appellate court upheld that decision, finding that the court-appointed lawyer had challenged the order – a finding which the Government subsequently argued had been a “technical error”.
5. In December 2020 the trial court established that the necessary conditions had been fulfilled for the entry concerning the applicant’s conviction to be erased from the criminal record.
6. The applicant complained under Article 6 that she had not been able to obtain a retrial following her conviction in her absence. She further raised other complaints under Article 6 concerning the fairness of the proceedings.
THE COURT’S ASSESSMENT
TRIAL IN THE APPLICANT’S ABSENCEAdmissibility7. The Government argued that the applicant’s complaint was incompatible ratione materiae with Article 6 of the Convention, as that Article did not apply to proceedings for the reopening of a trial, and that the complaint in respect of the main criminal proceedings had been lodged outside the six-month time-limit, as the applicant had waited for the outcome of an ineffective remedy, namely of the reopening proceedings, before lodging her application. The relevant principles concerning the applicability of Article 6 to proceedings to reopen criminal proceedings were set out in the Court’s judgment in Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 60-67, 11 July 2017, and Kokkonis and Chalilopoulou v. Greece (dec.), nos. 76386/11 and 76408/11, § 12, 31 October 2017). The Court notes that the gist of the applicant’s complaint is that she had been convicted in criminal proceedings of which she was not aware and in which she could not participate. She relied on her absence from the trial in her request for the reopening of the proceedings. The domestic courts did not reject that request as inadmissible, but dismissed it on the merits (contrast Kokkonis and Chalilopoulou, cited above, § 5). Article 6 was therefore applicable to the proceedings. As for the compliance with the six-month time-limit, the applicant’s decision to rely on her request for reopening of the proceedings does not appear unreasonable in the specific circumstances of the present case. The Court has previously decided cases on the merits where applicants relied on requests for the reopening of proceedings after being convicted in absentia (see Sanader v. Croatia, no. 66408/12, §§ 25-35 and 67 et seq., 12 February 2015). In addition, the applicant was not aware of the criminal proceedings against her and was not represented by a lawyer of her own choosing (contrast Bajić v. North Macedonia, no. 2833/13, § 41, 10 June 2021). Accordingly, the Court dismisses the Government’s objections.
8. The Government further submitted that the applicant had not suffered a significant disadvantage for the purposes of Article 35 § 3 (b) of the Convention, given the nature of the sanction (a suspended prison sentence) and because the suspension period had expired before she had learned of her conviction. The Court reiterates the principles developed in its case-law concerning the criterion of significant disadvantage (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010, and Bartolo v. Malta (dec.), no. 40761/19, § 22, 7 September 2021). It notes that the applicant’s conviction remained in the criminal record after the expiry of the suspension period. Moreover, the conviction was submitted in evidence in other civil proceedings to which the applicant was a party (see paragraphs 5 and 3 above). The Court therefore dismisses this objection.
9. The Court notes that the applicant’s complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
Merits10. Although the criminal proceedings against the applicant were not formally conducted as proceedings in absentia, the applicant was effectively deprived of the possibility of participating in them on account of her absence from the respondent State. The general principles concerning trial in absentia, summarised in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81-95, ECHR 2006‑II), are therefore applicable. In particular, although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself or that he intended to escape trial (ibid., § 82).
11. The Court accepts that the penal order was lawfully imposed on the applicant in written proceedings which did not require her presence. However, the right to challenge that order was provided under domestic law. An admissible challenge to the order would have had the same effect as if the order had never existed and would have led to a hearing and a trial in summary criminal proceedings.
12. The order was not served on the applicant, as the two attempts by the trial court to do so were unsuccessful. Both receipt slips indicated that she was in Germany. The publication of the order on the court’s notice board, as required by law, could not have led to her acquiring knowledge of the order in these circumstances and by that time, the domestic authorities had already been aware of the applicant’s absence from the country. As the court-appointed lawyer did not challenge the penal order, the applicant’s conviction became final without her knowledge of the proceedings against her.
13. There are no indications that the applicant’s absence was aimed at escaping trial. The Court is also not persuaded by the Government’s argument that the applicant could have anticipated the criminal proceedings against her. Furthermore, she cannot be regarded as having tacitly waived her right to participate in the proceedings, because she was not aware of the criminal proceedings against her (contrast Medenica v. Switzerland, no. 20491/92, § 56 in initio, ECHR 2001‑VI, and Mihelj v. Slovenia, no. 14204/07, § 39, 15 January 2015) until September 2017 (see paragraph 3 above). While it is true that she failed to report her absence from the respondent State as required by the relevant domestic law, this was merely a minor administrative offence and cannot outweigh the prominent place which the right to a fair trial holds in a democratic society (compare also Colozza v. Italy, 12 February 1985, § 32, Series A no. 89). Her continued failure to report her place of residence to the administrative authorities is of no relevance, as she informed the trial court of her residence in Germany in her request for the reopening of the proceedings.
14. As to whether the domestic legislation afforded the applicant with sufficient certainty the opportunity of appearing at a new trial (see Sejdovic, cited above, § 101), given that the order was never served on her the applicant was precluded from challenging it and, it appears, was also precluded from seeking restitutio in integrum under the relevant section of the Criminal Procedure Act. Furthermore, the applicant’s request for reopening of the proceedings was to no avail (see paragraph 4 above). It cannot be held against her that the court-appointed lawyer failed to challenge the penal order. The Government did not substantiate with any examples of domestic case-law their argument that a separate action brought by the applicant against the lawyer, on which she could have hypothetically relied in a subsequent request for a retrial, would have been effective (see, mutatis mutandis, Vasilevski v. the former Yugoslav Republic of Macedonia, no. 22653/08, § 59, 28 April 2016).
15. In conclusion, the applicant, who was tried in absentia and did not seek to escape trial or unequivocally waive her right to appear in court, was not afforded with sufficient certainty the opportunity to obtain a fresh determination by a court of the merits of the charges against her with her defence rights fully respected (compare also Sanader v. Croatia, cited above, § 95).
16. There has accordingly been a violation of Article 6 § 1 of the Convention.
OTHER COMPLAINTS17. The applicant raised further complaints under Article 6 of the Convention about alleged violations of the principle of equality of arms and the right to adversarial proceedings, of her right to be present at the trial and of the presumption of innocence.
18. Having regard to its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers there is no need to give a separate ruling on the applicant’s remaining 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 did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to make any award on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning the applicant’s trial in absentia admissible;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the applicant’s inability to obtain a retrial after her conviction in her absence;Holds that there is no need to examine the remaining complaints under Article 6 of the Convention.Done in English, and notified in writing on 4 April 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Lorraine Schembri Orland
Deputy Registrar President