Published on 17 June 2024
SECOND SECTION
Application no. 15902/21
Nikola GRUEVSKI
against North Macedonia
lodged on 6 March 2021
communicated on 27 May 2024
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings against the applicant (a former Prime Minister of the respondent State) for having requested the then-Minister of Interior to arrange for the Ministry of Interior to buy an armoured car, favouring a certain supplier. The background to the case is similar to that in Taleski and Others v. North Macedonia ((dec.), nos. 77796/17 and five other applications, §§ 4-8, 24 January 2023).
The trial court held hearings on 12 and 16 February, 12, 15 and 21 March, 10, 11, 18, 20, 23 and 25 April, and 8, 14 and 17 May 2018, and (according to the applicant) after the court’s working hours and at times continuing late into the evening and resuming early in the morning. It admitted in evidence inter alia eight audio-recordings of intercepted conversations. Four of those recordings had been published in 2015 by the political party SDSM (then in opposition), then handed over (allegedly after a deadline provided in a Privacy Protection Act of November 2015) to the Special Public Prosecutor’s Office (“the SPO”), which also published them at a press conference allegedly alongside a statement that the recordings would convince the public of the offence perpetrated by the persons whose conversations had been recorded. The applicant was not given a copy of the audio-recordings and a report of his technical counsel (технички советник) as to the need to establish their authenticity was not admitted into evidence.
While the trial was ongoing, the Special Public Prosecutor (“the SPP”) publicly stated that there had been recordings of unlawfully intercepted communications of judges. Before the applicant’s conviction at first instance the Prime Minister at the material time (Z.Z.) made a public statement which, according to the applicant, announced his upcoming conviction.
The domestic courts convicted the applicant, established that the audio-recordings had been validated as evidence by the Act which had established the SPO, that, irrespective of how they were produced, they had been lawfully obtained by the SPO and that they had not been the sole evidence against the applicant. The courts further found that four other bills of indictment had been lodged against the applicant and thus the running of the period for statutory limitation had been interrupted pursuant to Article 108 § 4 of the Criminal Code, which provides that the relevant period is interrupted when the accused commits another equally serious or a more serious offence during the limitation period.
In deciding on the applicant’s requests for extraordinary review of a final judgment, the Supreme Court did not take into consideration, as they had been lodged out of time, two addenda to those requests enclosing new evidence. The SPO’s written reply to the applicant’s requests was allegedly not forwarded to him.
Under Article 6 §§ 1, 2 and 3 and Article 8 of the Convention the applicant complains that i) he was convicted on the basis of the audio-recordings, which were obtained unlawfully and were admitted in evidence as copies and not originals, and a copy of which was not given to him; as well as that he did not have a possibility to challenge them; ii) he did not have access to all the audio-recordings handed over to the SPO, which may have included exculpatory evidence; iii) he did not have adequate time and facilities to prepare his defence; iv) the domestic courts had not been independent and impartial; v) the Supreme Court rejected his two addenda to the extraordinary review requests; vi) the SPO’s reply to his extraordinary review requests had not been communicated to him; and vi) the publication of the audio-recordings by the SDSM and the SPO, alongside the statement to the effect that they were evidence of the offence; Z.Z.’s statement while the proceedings were pending; as well as the manner in which the domestic courts established that the statutory limitation period had not expired violated his right to be presumed innocent.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him in accordance with Articles 6 §§ 1 and 3 (b) of the Convention? In particular:
(a) did he have a fair hearing, in view of the circumstances in which the audio-recordings from the allegedly unlawfully intercepted communications were obtained and the applicant’s alleged lack of opportunity to challenge their authenticity (see for the relevant principles Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 302-4, 26 September 2023)?
(b) were the principles of the adversarial nature of proceedings and equality of arms observed with regard to the disclosure to the defence of the evidence possessed by the prosecution (ibid., §§ 307-8)?
(c) did the applicant have adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b), given the scheduling and length of the hearings held by the trial court, and his alleged lack of access to the audio-recordings which served as a basis for his conviction (see, for example, Kikabidze v. Georgia, no. 57642/12, §§ 40-4, 16 November 2021)?
(d) has there been a violation of the applicant’s right of access to a court or to a fair trial on account of the Supreme Court’s refusal to consider the two addenda to his extraordinary review requests (see, mutatis mutandis, Evaggelou v. Greece, no. 44078/07, §§ 17-9, 13 January 2011; and Reichman v. France, no. 50147/11, §§ 27-31, 12 July 2016; see also, mutatis mutandis, Kikabidze, cited above, § 51 and 56; and, among many similar authorities, Zayidov v. Azerbaijan (no. 3), no. 60824/08, § 90, 19 January 2023)?
(e) was the applicant denied the right to an adversarial trial in the Supreme Court proceedings? In particular, was he provided with a copy of the SPO’s written reply to the applicant’s extraordinary review requests (see Bajić v. North Macedonia, no. 2833/13, §§ 54-60, 10 June 2021)?
2. Were the judges who dealt with the applicant’s case at all levels of jurisdiction independent and impartial, as required by Article 6 § 1 of the Convention, in view of the publication of the audio-recordings by the SDSM and the SPO and the statements of the SPP and Z.Z. (see, mutatis mutandis, Craxi v. Italy (no. 1), no. 34896/97, § 98, 5 December 2002; Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, §§ 137-41 and 146-48, 21 January 2016; and Tadić v. Croatia, no. 25551/18, §§ 102 et seq., 28 November 2023)? Was there a violation of the presumption of innocence, guaranteed by Article 6 § 2 of the Convention (ibid.; see also, for example, Gutsanovi v. Bulgaria, no. 34529/10, §§ 191 et seq., ECHR 2013 (extracts))?
3. Was the presumption of innocence under Article 6 § 2 of the Convention respected, in view of the manner in which the domestic courts applied Article 108 § 4 of the Criminal Code in deciding whether the statutory limitation period for the applicant’s prosecution had expired (see, mutatis mutandis, Kangers v. Latvia, no. 35726/10, §§ 50-3, 14 March 2019)?