CASE OF PESHOV AND RISTOVSKI v. NORTH MACEDONIA

SECOND SECTION

CASE OF PESHOV AND RISTOVSKI v. NORTH MACEDONIA

(Applications nos. 18678/18 and 19821/20)

JUDGMENT

STRASBOURG

16 January 2024

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

In the case of Peshov and Ristovski 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,

the applications 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”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Article 5 §§ 3 and 4 of the Convention (allegedly insufficient reasons for the applicants’ deprivation of liberty; alleged lack of adversarial proceedings, an oral hearing and speediness in the proceedings for ordering and/or reviewing the applicants’ deprivation of liberty) to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated in private on 12 December 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns allegedly insufficient reasoning in the courts’ decisions ordering the applicants’ pre-trial detention and certain procedural flaws in related review proceedings. The detention was ordered in relation to two sets of criminal proceedings concerning an incident on 27 April 2017 when a group of protesters entered the Parliament building of the respondent State.

2.  On 28 November 2017 the first applicant was placed under house arrest. On 30 November 2017 a three-judge panel of the Skopje Court of First Instance (“the panel”), siting in private, allowed an appeal by the public prosecutor – a copy of which was served on the first applicant’s lawyer on 1 December 2017 – and replaced the order for house arrest with an order for pre-trial detention in prison. The first applicant’s detention was extended on several occasions, including by an order of 26 January 2018. On 21 February 2018 the Skopje Court of Appeal (“the appellate court”) dismissed an appeal lodged by the applicant on 30 January 2018 against that order.

3.  On 26 March 2018 the Supreme Court replaced the first applicant’s pre-trial detention with house arrest. On 27 March 2018 the panel again ordered the first applicant’s pre-trial detention and subsequently extended it six times on the grounds of the risk of his absconding. On 5 October 2018 the first applicant was released on bail.

4.  As reported by the media, in May 2023 the Supreme Court ultimately confirmed the first applicant’s conviction with final effect.

5.  He complained under Article 5 §§ 3 and 4 of the Convention of insufficient reasons for his continued detention, the lack of an oral hearing and the lack of adversarial proceedings in ordering his detention on 30 November 2017, and the delayed review of his detention after it had been extended on 26 January 2018.

6.  From 30 July 2019 until 21 August 2020 (the period relevant to the case before the Court) the second applicant’s house arrest was extended fourteen times, on account of the risk of his absconding.

7.  The prosecutor’s written submissions in reply to the second applicant’s appeals against thirteen of the extension orders (see paragraph 6 above) were not served on the second applicant. The appellate court’s decisions dismissing appeals by the second applicant against the extension orders of 25 December 2019 and 23 July 2020 were served on him on 6 February and 25 August 2020 respectively.

8.  In April 2023 – as reported by the media – the appellate court quashed the second applicant’s conviction and remitted the case for reconsideration.

9.  The second applicant complained under Articles 5 §§ 3 and 4 of the Convention of insufficient reasons and the delayed review of his house arrest, as well as the failure to send him a copy of the prosecutor’s written submissions (see paragraph 7 above).

THE COURT’S ASSESSMENT

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

11.  Unlike in Shipovikj v. North Macedonia ((dec.), nos. 77805/14 and 77807/14, § 27, 9 March 2021), the criminal proceedings against the applicants in the present case either ended with a final conviction or are still pending. The examples of domestic case-law submitted by the Government do not concern similar situations and cannot lead to the conclusion that the relevant provisions of the Criminal Proceedings Act for awarding compensation for unjust deprivation of liberty or the Obligations Act (ibid., §§ 33, 35 and 38) apply in the circumstances of the case. Accordingly, the Court dismisses the Government’s non-exhaustion plea based on those Acts.

12.  For the reasons stated in Zelčs v. Latvia (no. 65367/16, § 44, 20 February 2020, with further references), the Court dismisses the Government’s objection to the effect that the applicants have not suffered a “significant disadvantage” under Article 35 § 3 (b) of the Convention.

13.  The applicants’ complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds and must be declared admissible.

14.  The relevant general principles regarding the requirement that there must have been “relevant and sufficient” reasons to justify continued detention have been summarised in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 5 July 2016, with further references), Miladinov and Others v. the former Yugoslav Republic of Macedonia (nos. 46398/09 and 2 others, §§ 45-49, 24 April 2014) and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia (no. 28169/08, §§ 55-57, 28 October 2010). The Court applies the same criteria when assessing the justification for pre-trial detention in prison and house arrest (see Buzadji, cited above, §§ 112-14).

15.  Having regard to the Court’s established case-law (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 290, 22 December 2020), the period of detention in prison concerned, in respect of the first applicant, lasted a little over ten months (from 30 November 2017 until 5 October 2018 (see paragraphs 2-3 above). The second applicant’s complaint, in so far as notice of it was given to the Government, concerns his house arrest between 30 July 2019 and 21 August 2020 (one year and twenty-two days – see paragraph 6 above).

16.  During the period under consideration, the risk of the applicants’ absconding was justified by the authorities with reference to the gravity, political motive, aim and manner of committing or consequences of the offence, as well as the degree of criminal liability and the severity of the potential penalty. The courts did not demonstrate the existence of any concrete fact in support of their conclusions that there was a risk of flight (compare also Ramkovski v. the former Yugoslav Republic of Macedonia, no. 33566/11, § 63, 8 February 2018). They referred to the applicants’ personal circumstances (their family ties, assets, absence of a previous criminal record and the fact that the second applicant was employed), only to conclude in a summary manner that those circumstances could not lead to a different outcome and could not secure the applicants’ presence in the proceedings. No assessment was made of their character, morals or behaviour during the earlier stages of the proceedings (compare also Buzadji, cited above, § 118). Contrary to the Government’s submissions, the second applicant’s house arrest during the period under consideration was based solely on the risk of his absconding (see paragraph 6 above).

17.  The first applicant’s detention between 30 November 2017 and 26 March 2018 was further justified by the authorities with reference to the risk of his interfering with the investigation; however, the domestic courts did not substantiate that risk by reference to any factual evidence (see Mikalauskas v. Malta, no. 4458/10, § 121, 23 July 2013, referring to Becciev v. Moldova, no. 9190/03, § 59, 4 October 2005).

18.  These considerations are sufficient for the Court to conclude that the reasons given for the applicants’ deprivation of liberty were not sufficient. There has accordingly been a violation of Article 5 § 3 of the Convention in respect of both applicants.

19.  In his appeal against the detention order of 30 November 2017, the first applicant did not raise the complaint that the panel had not held an oral hearing when ordering his detention. This complaint is therefore inadmissible for non-exhaustion of domestic remedies, as argued by the Government.

20.  The second applicant’s complaints concerning procedural flaws in three separate sets of review proceedings which ended on 15 August, 27 September and 18 October 2019 have been lodged outside the six-month time limit, given that his application was lodged on 13 May 2020.

21.  However, in the absence of any examples of relevant domestic case-law, the Court rejects the Government’s argument that a compensation claim under the Criminal Proceedings Act and the Obligations Act (see paragraph 11 above) is an effective remedy for the applicants’ complaints under this head. The Government further failed to provide any convincing argument that an oral hearing before the higher (appellate) court could remedy the delay in sending, or the failure to send, the prosecution’s appeal or its comments in reply to the respective applicants. The Court also dismisses the Government’s objection that the applicants did not suffer a significant disadvantage (see paragraph 12 above). Lastly, there are no grounds for finding that there has been an abuse of the right of application under Article 35 § 3 (a) of the Convention, as the first applicant’s initial statement that the prosecutor’s appeal was not served on him (whereas it was in fact served on his lawyer, but only after the court’s decision on the appeal had already been taken) did not concern 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).

22.  In conclusion:

- the complaints concerning the delayed review of the first applicant’s detention order of 26 January 2018 and the second applicant’s house arrest orders of 25 December 2019 and 23 July 2020;

- the first applicant’s complaint that the public prosecutor’s appeal against the house arrest order of 28 November 2017 was not served on him; and

- the second applicant’s complaint that he was not sent a copy of the higher public prosecutor’s submissions in reply to his appeals against ten of the house arrest orders issued between 28 October 2019 and 21 August 2020;

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.

23.  The relevant general principles regarding proceedings under Article 5 § 4, which must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person, and in which a decision on the lawfulness of the detention must be given “speedily”, have been summarised in Miladinov and Others (cited above, §§ 63-64, with further references) and Ramkovski (cited above, § 73).

24.  For the same reasons as in the case of Docevska-Bozhinoska v. North Macedonia ([Committee], no. 25190/18, § 12, 9 May 2023, with further references), there has been a violation of Article 5 § 4 of the Convention on account of the fact that the prosecutor’s appeal against the house arrest order of 28 November 2017 was served on the first applicant’s lawyer only after the panel had replaced the house arrest order with detention in prison and “equality of arms” was thus not ensured in the proceedings.

25.  The Court further finds it excessive that it took twenty-two days for the appellate court to decide the first applicant’s appeal against the order of 26 January 2018 (see, for example, Snyatovskiy v. Russia, no. 10341/07, § 65, 13 December 2016). The remaining arguments of the Government (such as that the appellate court held a hearing, that the first applicant could have inspected the case file, or that the case was complex) cannot lead to a different outcome. There has equally been a violation of Article 5 § 4 of the Convention under this head.

26.  For the same reasons as those stated in Miladinov and Others (cited above, § 67), the fact that the second applicant was not served with a copy of the higher public prosecutor’s submissions in reply to his appeals against ten extension orders for his house arrest infringed his right to adversarial proceedings, in violation of Article 5 § 4 of the Convention.

27.  In view of this finding, it is not necessary to decide whether the judicial review of the second applicant’s house arrest in some of those same proceedings was provided speedily (see Hristov v. Bulgaria, no. 35436/97, §§ 118-19, 31 July 2003).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  The first applicant claimed 1,500 euros (EUR) in respect of damage suffered as a result of the violation of Article 5 § 4 of the Convention, as well as the equivalent of approximately EUR 1,440 in respect of costs and expenses for the proceedings before the Court.

29.  The second applicant claimed EUR 3,500 in respect of non-pecuniary damage, as well as EUR 3,000 for costs and expenses incurred in the domestic proceedings and EUR 1,500 for costs and expenses incurred before the Court.

30.  The Government submitted that the claims were excessive and unsubstantiated.

31.  The Court awards each of the applicants EUR 750, plus any tax that may be chargeable, in respect of non‑pecuniary damage.

32.  Having regard to the documents in its possession, the Court awards the first applicant EUR 1,440 and the second applicant EUR 1,500 for costs and expenses in the proceedings before it, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay, 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) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,440 (one thousand four hundred and forty euros) to the first applicant and EUR 1,500 (one thousand five hundred euros) to the second applicant, plus any tax that may be chargeable to them, 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;

Done in English, and notified in writing on 16 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Lorraine Schembri Orland
 Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of birth
Place of residence
Nationality

Represented by

1.

18678/18

Peshov v. North Macedonia

12/04/2018

Mitko PESHOV
1976
Kavadarci
Macedonian/citizen of North Macedonia

Pavlina ZEFIKJ-JAKIMOVSKA

2.

19821/20

Ristovski v. North Macedonia

13/05/2020

Spiro RISTOVSKI
1981
Skopje
Macedonian/citizen of North Macedonia

Aneta ILIEVSKA