Published on 22 May 2023
SECOND SECTION
Application no. 15816/19
Tome GLAVCHEV against North Macedonia
and 3 other applications
(see list appended)
communicated on 5 May 2023
SUBJECT MATTER OF THE CASE
The applications concern various measures taken against the individual applicant, Mr Tome Glavchev, and the four applicant companies (see the appended list), during the investigation phase of the criminal proceedings concerning abuse of office and money laundering. Those proceedings were initiated against the individual applicant and the applicant company NOEL eksport-import DOOEL Gevgelija. The individual applicant is the sole owner of the applicant company BENTTON DOOEL export-import Gevgelija and has ownership rights in the other three applicant companies.
In 2015, following the disclosure of numerous unlawfully intercepted telephone communications, a Special Public Prosecutor’s Office was established with a view to investigating and prosecuting criminal offences related to and arising from the contents of the said communications (see Taleski and Others v. North Macedonia (dec.), nos. 77796/17 and 5 others, §§ 4-9, 24 January 2023).
On 9 October 2018, following a request of the Special Public Prosecutor’s Office, a pre-trial judge authorised a search of the individual applicant’s home. The search was carried out on 13 October 2018. The individual applicant submitted a request for judicial review before a pre-trial judge against the Special Prosecutor, who had requested an authorisation for the search, and against the Ministry of Interior, which had performed the search. He complained, inter alia, that the search had been carried out outside the eighteen-month time-limit, provided in section 22 of the Special Prosecutor’s Act: according to that legislative provision, the Special Prosecutor had to submit an indictment or discontinue the investigation within eighteen months from the reception of the materials connected to the unlawfully intercepted telecommunications. The pre-trial judge and the criminal panel of the Skopje Basic Criminal Court held that, in accordance with the Criminal Proceedings Act, the judicial review remedy could only concern actions performed in the pre-investigation phase. Thus, they rejected the complaint in respect of the actions performed by the Special Prosecutor in the investigation phase and found that the actions performed by the Ministry of Interior had been lawful. Both those bodies also held that the jurisdiction of the Special Prosecutor was not limited to opening investigations and undertaking investigative measures if there was proof that a criminal offence, subject to being prosecuted ex officio, had been committed and the said prosecutor had the authority to investigate it. In the appeal against the pre-trial judge’s decision, the individual applicant had also relied on a general legal opinion adopted by the Supreme Court on 30 January 2019 in which the latter court had held that the Special Prosecutor was bound by the time-limit provided in section 22 of the Special Prosecutor’s Act and that after its expiry he or she was no longer authorised to take over prosecutor’s pre-investigative and investigative actions, envisaged in the Criminal Proceedings Act. The criminal panel did not explicitly address the argument concerning the Supreme Court’s opinion. The criminal panel’s decision, which was final, was adopted on 27 March 2019.
On 12 October 2018 the Special Prosecutor opened an investigation against the individual applicant and other persons on suspicions of abuse of office and money laundering. On 13 October 2018 the pre-trial judge dismissed the Special Prosecutor’s request to detain the individual applicant on remand and instead ordered him to report to the court every week in order to ensure his attendance in the criminal proceedings. The individual applicant did not appeal against the said decision. On 16 October 2018 the criminal panel of the Skopje Basic Criminal Court dismissed the Special Prosecutor’s appeal against the latter decision and ordered, ex officio, an additional restrictive measure – a seizure of the individual applicant’s passport. The criminal panel’s decision indicated that the applicant could appeal against it. He lodged an appeal, but on 11 December 2018 the Skopje Court of Appeal rejected it as inadmissible, finding that he could not lodge such an appeal since the criminal panel had taken the impugned decision as a second-instance body. On 28 January 2019 the pre-trial judge granted the individual applicant’s request for bail and annulled the restrictive measures. As security, the court accepted various moveable property (mostly equipment from the individual applicant’s companies) that had been valued at 923,934 euros. This decision was not appealed.
On 1 November 2018 a judge of the trial court granted the Special Prosecutor’s request and imposed a seizure on property (real estate) owned by all five applicants. The judge found that the prosecutor’s request had been justified in view of the pending investigation against the applicants, and the existence of a reasonable suspicion that the property might have been obtained as proceeds of crime. The judge further noted that the exact amount of any unlawful pecuniary gain was to be determined in the course of the pending investigation. The applicants appealed, complaining that the measure was unlawful, having regard to section 22 of the Special Prosecutor’s Act, and disproportionate because the value of the seized property had not been determined and was likely much higher than the amount of any alleged unlawful pecuniary gains. On 23 November 2018 a three-judge panel within the Skopje Basic Criminal Court dismissed the appeals and upheld the decision of 1 November 2018, while also specifying the value of the seized property. It did not explicitly address the applicants’ complaints about the unlawfulness and proportionality of the measure.
On 13 September 2020, the case against Mr Glavchev was transferred to the ordinary prosecution service dealing with organised crime and corruption, after the Special Prosecutor’s Office ceased to exist. According to the applicants’ allegations the restrictions on their property confirmed on 23 November 2018 and the accepted bail proposal of 28 January 2019 were still in force.
The applicants complain under Articles 6, 8 and 13 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention about the restrictive measures and the searches ordered in the criminal proceedings. They submit that the Special Prosecutor’s Office was not authorised to initiate the impugned proceedings, thus making all of the investigative and restrictive measures unlawful. They also submit that the courts did not address their arguments relating to, in particular, the lawfulness of the Special Prosecutor’s actions. Lastly, they argue that the length and ineffectiveness of the investigation interfered with their property rights.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to a reasoned decision in accordance with Article 6 of the Convention (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017)? In particular, did the domestic courts, in their decisions related to the seizure of the individual applicant’s passport, the search of his home on 13 October 2018, and the restrictive measures ordered against all five applicants’ property, properly address the applicants’ allegations that the Special Prosecutor was not an authorised prosecutor in the impugned proceedings?
2. Has there been a violation of the individual applicant’s right to respect for his private life and home, within the meaning of Article 8 § 1 of the Convention, in view of the search of his home on 13 October 2018? In particular, was the search in accordance with the law, within the meaning of Article 8 § 2, taking into account the applicant’s allegation that the Special Prosecutor’s Office was not authorised to issue search orders? Moreover, was the search necessary, as required under Article 8 § 2?
3. Has there been a violation of the individual applicant’s right to liberty of movement, contrary to Article 2 of Protocol No. 4 to the Convention? In particular, was the restriction of that right in accordance with the law, in view of his allegation that the seizure of his passport was adopted in criminal proceedings initiated by a body which was not authorised to do so? Moreover, was that measure necessary, as required under Article 2 §§ 3 and 4 of Protocol No. 4?
4. Did the individual applicant have an effective domestic remedy at his disposal, as required by Article 13 of the Convention, in respect of his complaint under Article 2 of Protocol No. 4, in view of the rejection of his appeal against the decision ordering the seizure of his passport?
5. Has there been a violation of the right of all five applicants to peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention, in view of the decisions of 1 November 2018 (confirmed on 23 November 2018) and 28 January 2019 ordering restrictions against their property? In particular, were the impugned decisions in accordance with the law, in view of the applicants’ allegation that they had been adopted in criminal proceedings initiated by a body which was not authorised to do so? Moreover, were those restrictions proportionate, in particular, in view of the length of the investigations?
APPENDIX
List of cases:
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
15816/19
Glavchev v. North Macedonia
18/03/2019
Tome GLAVCHEV
1960
Gevgelija
Macedonian /
citizen of the
Republic of
North
Macedonia
Petro JANURA
2.
16312/19
Glavchev and Others v. North Macedonia
19/03/2019
Tome GLAVCHEV
1960
Gevgelija
NOEL EXPORT-IMPORT DOOEL GEVGELIJA
1991
Gevgelija
Macedonian /
citizen of the
Republic of
North
Macedonia
NOEL COMPANY DOO GEVGELIJA
1996
Gevgelija
Macedonian /
citizen of the
Republic of
North
Macedonia
NOEL PLUS DOOEL STOJAKOVO BOGDANCI
1996
Stojakovo, Bogdanci
Macedonian /
citizen of the
Republic of
North
Macedonia
BENTTON DOOEL EXPORT-IMPORT GEVGELIJA
2001
Gevgelija
Macedonian /
citizen of the
Republic of
North
Macedonia
3.
21532/19
Glavchev v. North Macedonia
13/04/2019
Tome GLAVCHEV
1960
Gevgelija
4.
41373/20
Glavchev and Others v. North Macedonia
09/09/2020
Tome GLAVCHEV
1960
Gevgelija
NOEL EXPORT-IMPORT DOOEL GEVGELIJA
1991
Gevgelija
NOEL PLUS DOOEL STOJAKOVO BOGDANCI
1996
Stojakovo, Bogdanci
BENTTON DOOEL EXPORT-IMPORT GEVGELIJA
2001
Gevgelija
NOEL COMPANY DOO GEVGELIJA
1996
Gevgelija