Published on 8 September 2025
SECOND SECTION
Application no. 32402/22
Branko ILIEVSKI
against North Macedonia
lodged on 27 June 2022
communicated on 19 August 2025
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s conviction for act which, it is alleged, did not constitute a criminal offence under the applicable domestic law at the time it was carried out.
On 1 July 2008, following a complaint lodged by the applicant’s neighbours, a municipal building inspector established that the applicant was carrying out deep excavation works on his plot without a building permit or any other relevant documentation, thereby endangering the safety of the surrounding properties. The inspector ordered the applicant to cease all further construction activities and to restore the land to its previous condition.
On 30 July 2008 the inspector again noted that the applicant had continued the excavation works despite the previous order, still without the required permit. The applicant was once more instructed to halt the works and to reinstate the land to its original state.
Acting upon a criminal complaint lodged by the applicant’s neighbours, on 16 August 2011 the public prosecutor indicted the applicant for unlawful construction under Article 244-a of the Criminal Code, arguing that “during 2008 the applicant unlawfully carried out excavation on his plot”. On 30 March 2021 the prosecutor amended the indictment, arguing that “during 2008 the applicant had carried out unlawful excavation and had unlawfully constructed a retaining wall on his plot.”
The applicant challenged the indictment, arguing that the criminal offence of unlawful construction was introduced as a separate criminal offence only on 15 January 2008, and that, prior to the amendments to the Construction Act of 16 July 2008, no building permit had been required for excavation works or for the construction of retaining walls. He relied on the case-law of the Supreme Court, which held that the offence of unlawful construction is committed upon commencement of works. The applicant complained that the authorities had failed to establish the precise time when the offence had commenced and claimed that the excavation had been carried out at a time when such conduct did not constitute a criminal offence, prior to the amendments to the Construction Act of 16 July 2008.
The domestic courts, at two levels of jurisdiction, convicted the applicant and sentenced him to two years’ imprisonment, suspended for five years, finding that he had constructed the retaining wall without a building permit.
The applicant complains under Article 7 of the Convention that he was convicted for an act which did not constitute a criminal offence under the applicable domestic law at the time it was committed.
QUESTIONS TO THE PARTIES
Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as required by Article 7 of the Convention?
In particular, was it possible for the applicant to foresee at the time when he performed the impugned act that he risked a criminal conviction (see, mutatis mutandis, Berardi and Mularoni v. San Marino, nos. 24705/16 and 24818/16, §§ 39-44, 10 January 2019; and Del Río Prada v. Spain [GC], no. 42750/09, §§ 77-80, 91, ECHR 2013)?