Communicated on 15 June 2017
FIRST SECTION
Application no. 29911/15
Pero JOSIFOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 12 June 2015
STATEMENT OF FACTS
The applicant, Mr Pero Josifovski, is a Macedonian national, who was born in 1966 and lives in Skopje. He is represented before the Court by Ms S. Petruševa, a lawyer practising in Skopje.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a historian and expert in numismatics. He was employed in the National Archaeological Museum.
On 27 February 2014 the applicant was detained on suspicion of trafficking in valuable State-owned cultural heritage (отуѓување на културно наследство од особено значење во државна сопственост), misappropriation of objects under temporary protection, cultural heritage or natural rarity (присвојување на добра од привремена заштита или културно наследство или природна реткост) and abuse of office (злоупотреба на службената положба и овластување).
On 28 February 2014 the applicant was brought before a pre-trial judge (судија на претходна постапка) of the Skopje Court of First Instance (Основен суд Скопје – hereinafter “first-instance court”) who decided to detain the applicant on remand for thirty days. The detention order was based on the risk of absconding, possibility of obstructing the investigation and risk of reoffending, as specified in section 165(1) of the Criminal Proceedings Act (Закон за кривичната постапка, Official Gazette no.150/2010). The risk of absconding was justified by the gravity of the charges and the severity of the anticipated sentence. The risk of obstructing the investigation was justified by the need to examine witnesses and prepare expert reports. The judge held that there was a risk of reoffending given the fact that the applicant held a position of authority.
On 1 March 2014 the applicant lodged an appeal against the detention order. He claimed that there was no evidence to substantiate the risk of absconding given the fact that he owned a car and apartment; he had a wife and two children residing in the country; both he and his wife were employed and he had exemplary reputation and no criminal record. The applicant maintained that there were no reasons to justify risk of obstructing the investigation and reoffending since the artefacts subject of the investigation had been sealed off in the Archaeological Museum.
On 4 March 2014 a three-judge panel of the first-instance court, sitting in private, dismissed the applicant’s appeal and upheld the detention order. The panel took into account the applicant’s family and financial circumstances. It nevertheless considered that there were grounds justifying the applicant’s pre-trial detention and fully endorsed the judge’s reasoning.
The applicant’s pre-trial detention was further extended by decisions of a three-judge panel of the first-instance court dated 28 March and 25 April 2014. Each time, the panel decided in private sessions. The risk of absconding was justified with the following reasoning:
“At this stage of the proceedings there is a reasonable suspicion that the suspect might abscond if released ... having regard to the nature, character and type of the offences, the specificity of the offences, the protected interests and the consequences of the offences, the potential penalty prescribed for this type of offences and taking into account the complexity of the case and large number of suspects...The panel did not disregard the family and financial circumstances of the suspect: together with his wife he owns immovable property- an apartment; he has family and two children; his immediate family resides in the country; he is employed; he has no criminal record, however the panel considers that at this stage of the proceedings, these circumstances do not suffice to eliminate the risk of absconding.”
The panel justified the risk of obstructing the investigation on the grounds of the necessity to question several witnesses and the need to prepare an expert report. As regards the risk of reoffending, the panel relied on the gravity of the charges and the fact that the applicant was suspected of committing the offences by abusing his position of authority.
On 27 May 2014 the applicant and six other persons were indicted before the first-instance court. The applicant was charged with trafficking in valuable State-owned cultural heritage and abuse of office.
On the same day, at the public prosecutor’s request, a three-judge panel of the first-instance court, sitting in private, extended the applicant’s detention for thirty days. As regards the risk of absconding and reoffending the panel provided the same reasoning as before. With regard to the risk of obstructing the proceedings, the panel held that there was a possibility of influencing witnesses and experts who were to be heard during the trial.
On 30 May 2014 the applicant lodged an appeal complaining about the length of the pre-trial detention and lack of relevant and sufficient reasons to justify his detention.
On 12 June 2014 the Skopje Court of Appeal (Апелационен суд Скопје – hereinafter “second-instance court”), sitting in private, dismissed the applicant’s appeal and upheld the detention order.
The applicant’s detention was continuously extended for thirty days by decisions of a three-judge panel of the first-instance court dated: 25 June, 24 July, 22 August, 24 September, 22 October and 21 November 2014. All those decisions stated the risk of the applicant absconding, reoffending and obstructing the proceedings as grounds for extending the detention.
In the meantime, the applicant unsuccessfully applied on three occasions for release and altering the detention to house arrest. The first application was initially dismissed; however upon appeal, a three-judge panel of the first-instance court remitted the case and instructed the judge to examine the admissibility of the application. No information has been provided regarding the decision in the resumed proceedings. The other two applications were dismissed by a three-judge panel of the first-instance court on 20 August and 4 November 2014.
On 19 December 2014 the applicant’s lawyer submitted a request for re-examination of the detention order in view of the fact that all evidence had been adduced at the trial, including examination of all experts and prosecution witnesses. The applicant also complained that the length of the pre-trial detention had been contrary to Article 5 of the Convention and referred to the Court’s case-law on this matter.
On 23 December 2014 a three-judge panel of the first-instance court, sitting in private, extended the applicant’s pre-trial detention on the grounds of risk of absconding and obstructing the proceedings. The panel held that witnesses proposed by the defence needed to be examined at the trial and there was, accordingly, a risk of obstructing the proceedings. It no longer relied on the risk of reoffending as grounds for detention.
On 24 December 2014 the applicant lodged an appeal, complaining that the panel did not provide relevant and sufficient reasons to justify his detention and that the court did not provide him with an opportunity to present his arguments.
On 20 January 2015 the second-instance court, sitting in private, dismissed the applicant’s appeal and upheld the detention order.
On 22 January 2015 a three-judge panel, sitting in private, extended the applicant’s pre-trial detention for thirty days solely on grounds of risk of absconding. The panel considered that the risk of obstructing the proceedings no longer warranted further extension of the detention in view of the fact that all evidence had been examined and all witnesses proposed by the applicant had been heard.
On 20 February 2015 a three-judge panel, sitting in private, ordered another thirty-day extension of the applicant’s pre-trial detention on the grounds of risk of absconding.
On 25 February 2015 the applicant lodged an appeal against the detention order, reiterating his earlier complaints and relied on the Court’s case-law in the cases of Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, 28 October 2010 and Miladinov and Others v. the former Yugoslav Republic of Macedonia, nos. 46398/09, 50570/09 and 50576/09, 24 April 2014.
On 19 March 2015 the second-instance court, sitting in private, dismissed the applicant’s appeal and upheld the detention order.
COMPLAINTS
The applicant complains under Article 5 § 3 of the Convention that the domestic courts did not give relevant and sufficient reasons for his prolonged pre-trial detention.
He also complains under Article 5 § 4 of the Convention that he was never heard in the proceedings concerning the extension of his detention and that those proceedings were not conducted within a reasonable time.
QUESTIONS TO THE PARTIES
1. Were the grounds given by the domestic courts concerning the applicant’s prolonged pre-trial detention “relevant and sufficient”, as required by Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, ECHR 2016 (extracts) and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, §§ 58‑65, 28 October 2010)?
2. Did the authorities respect the principle of procedural fairness, as required by Article 5 § 4 of the Convention (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 and Miladinov and Others v. the former Yugoslav Republic of Macedonia, nos. 46398/09, 50570/09 and 50576/09, §§ 63-68, 24 April 2014)? In particular, did the applicant have the benefit of an oral hearing before the panel and the Court of Appeal when his pre-trial detention was extended?
3. Were the review proceedings before the Skopje Court of Appeal, by which the applicant sought to challenge the detention orders of 23 December 2014 and 20 February 2015 compatible with the “speedy” requirement within the meaning of Article 5 § 4 of the Convention?
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