Communicated on 3 July 2014
FIRST SECTION
Application no. 8784/11
Bajruš SEJDIJI against the former Yugoslav Republic of Macedonia
and 2 other applications
(see list appended)
The applicants are Macedonian nationals. For the applicants’ details see the Appendix attached to this report.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Application no. 8784/11
1. Proceedings for periodic review of the applicant’s pre-trial detention
On 23 October 2008 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against the applicant and thirty-one other people on account of criminal conspiracy (злосторничко здружување) and abuse of office (злоупотреба на службената положба). A pre-trial detention in prison custody was ordered in respect of twenty-two co-accused, including the applicant. According to the applicant, his detention in relation to the alleged crimes subject to those proceedings was extended on several occasions until 16 January 2010, when a three-judge panel of the trial court (“the panel”) set aside the order for prison custody since the one-year time-limit after the introduction of the indictment, as specified by law, had expired.
On 26 December 2009 the investigating judge of the trial court opened a fresh investigation against the applicant and fourteen other people on account of criminal conspiracy, abuse of office and extortion (изнуда) with respect to other alleged crimes of money laundering and unlawful acquisition of property. The investigating judge ordered thirty-day prison custody in respect to all accused. The detention order was based on all three grounds specified under the Criminal Procedure Act, namely, a risk of the accused absconding, reoffending and interfering with the investigation. The judge relied on the links among the accused; the gravity of the charges; the severity of the potential penalty and the possibility of the accused influencing witnesses and other people concerned. On 30 December 2009 the panel dismissed the applicant’s appeal and upheld the detention order.
With decisions of 21 January and 22 February 2010 the panel ordered, on each occasion, thirty-day extension of the applicant’s (and other co-accused’s) detention on all three grounds cited above. On 24 March 2010 the panel excluded “the risk of interfering with the investigation” from the list of grounds on which the applicant’s detention was based since the investigation had been completed and the prosecution had lodged an indictment. On 12 April 2010 the latter decision was overturned by the Skopje Court of Appeal in part concerning the possibility of reoffending. The court ruled that there was no such possibility given the fact that the applicant and the other co-accused were detained. However, it upheld the panel’s finding that there were grounds to believe that the accused might abscond if released.
Between 23 April 2010 and 17 January 2011 the applicant’s (and other co-accused’s) pre-trial detention was extended on ten occasions. In each order extending the detention, the panel provided the following reasoning regarding the risk of fleeing:
“The material and verbal evidence adduced so far corroborates the reasonable suspicion that the accused have committed the crimes with which they are charged. Having regard to the nature, character and type of offences with which the accused are charged, as well as the gravity of the charges, the potential penalty ... the panel considers that there is a real risk of flight if the accused are released. The risk of flight is further supported by the financial circumstances of the [accused] ... [the applicant]... has been “in conflict with the law” (и порано доаѓал(е) во судир со законот) ... The panel took into consideration the fact that the accused have families and children, as well as that [the applicant] has immovable property on his name, but it considers that the family and material situation of the accused are insufficient to secure their presence at the trial ...”
As stated by the applicant, the extension orders of the panel were upheld on appeal by the Skopje Court of Appeal. In the judgments of 13 May and 16 December 2010, the Court of Appeal endorsed the reasons given by the panel and further stated:
“... according to this court, custody in prison is the only efficient measure at this stage of the proceedings, which excludes the risk of the accused from absconding ...”
2. Proceedings upon the applicant’s requests for release on bail
As stated by the applicant, during the proceedings for periodic review of the pre-trial detention, he unsuccessfully claimed, with separate requests, to be released on bail. In this respect was a request of 16 July 2010 in which he sought to be released given the fact that his wife was operated and she could not accordingly take care of their minor children. He proposed, as bail, immovable property owned by third persons (they submitted written statements certified by a notary public), the value of which was estimated at 1,230,624 euros (EUR). Furthermore, a relative of the applicant offered to make a court deposit in the amount of EUR 110,000. On 10 November 2010 the panel dismissed this request relying on the gravity of the charges and the potential penalty. In addition, it stated that in other proceedings (apparently those mentioned above in which the investigation was launched in October 2008) the applicant had already been convicted and sentenced to imprisonment with a judgment, which has not yet been final. The fact that he had a family and possessions in the respondent State could not provide a sufficient guarantee that he would not flee if released. The applicant was advised that he could appeal this judgment before the Court of Appeal.
With a judgment of 6 December 2010, the Skopje Court of Appeal upheld the applicant’s appeal and overturned the panel’s judgment. The court accepted the bail proposed and ordered that the applicant is remanded in house arrest. The applicant was forbidden to leave his house without court’s permission and police was authorised to supervise the execution of the order for house arrest.
With a judgment of 10 December 2010, the Supreme Court accepted a request for the protection of legality submitted by the public prosecutor; it overturned the judgment of the Court of Appeal; and rejected the applicant’s appeal as inadmissible. The court held that the Criminal Proceedings Act explicitly excluded the possibility to appeal a judgment of the panel regarding a request for replacement of prison custody with a more lenient measure.
B. Application no. 33566/11
On 24 December 2010 an investigating judge of the trial court opened an investigation against twenty people, including the applicants, on account of criminal conspiracy and tax evasion. The judge also ordered thirty-day pre-trial detention in respect of nineteen accused, including the applicants. The detention was based on the risk of the accused absconding, reoffending and interfering with the investigation. As regards the risk of fleeing, the investigating judge stated:
“... the gravity of the offenses with which the accused are charged; the potential penalty; the manner in which the offenses were committed; the degree of criminal responsibility of the accused (imply) that there is a risk that (the accused) might abscond if they are released.”
The risk of reoffending was justified with the fact that most of the accused still hold the authority to sign business accounts and other financial documents. That there were witnesses to be examined and expert financial evidence to be obtained justified the risk that the accused might interfere with the investigation.
On 21 January 2011 the panel extended the applicants’ (and twelve other co-accused) pre-trial detention for thirty days on all grounds specified above. As to the risk of flight, the panel stated:
“The material and verbal evidence adduced so far corroborates the reasonable suspicion that the accused have committed the crimes with which they are charged. Having regard to the nature, character and type of offences that are investigated, as well as the gravity of the charges, the level of criminal responsibility, the potential penalty ... the panel considers that there is a real risk of fleeing if the accused are released ... The risk of flight is further reinforced by the financial circumstances of the accused, given the fact that most of them do not have possession ... The panel took into consideration the fact that most of the accused have families and that they are parents, as well as that (some of the accused, including Ms E. Ramkovska) have possessions, but these circumstances do not eliminate the risk of the accused absconding and are insufficient to secure the attendance of the accused at the pre-trial proceedings.”
As to the risk of interfering with the investigation, the panel held that the prosecution witnesses were to be examined soon and the investigating judge foreseen that other evidence was to be adduced. That risk was further underpinned by the fact that some of the accused remained silent when they had been examined by the investigating judge.
As regards the risk of reoffending, the panel stated:
“... the panel took into consideration the nature, character and type of offences; the manner, circumstances and motives for committing the crimes; the fact that it concerns a well-organised group formed by organisers and members who have taken actions within a prolonged time; (each) had a pre-defined role in business structures of already existent companies or companies which they aimed to establish in order to gain profit, thereby committing the crimes of tax evasion, abuse of office and money laundering. The fact that the accused still hold the same positions in the companies ... which they used in order to take the incriminated actions with which they are charged, imply that they might reoffend if they are released.”
On 26 January 2011 the applicants complained that the panel had not given concrete reasons for their detention. They argued that nearly all evidence has already been adduced; that they had families (Ms E. Ramkovska was a mother of three minor children) and possessions in the respondent State; that they did not have a criminal record; that the fact that some of the co-accused remained silent could not serve as a basis for their detention; and that the wording used by the panel had violated the principle of the presumption of innocence.
With a judgment of 4 February 2011, the Skopje Court of Appeal dismissed the applicants’ appeal and upheld the panel’s order. The court held inter alia that:
“According to this court, the circumstances of the concrete case regarding the particular nature and gravity, as well as the character of the criminal offenses subject to criminal proceedings; the level of criminal responsibility; the potential penalty; suggest that there is a real risk that the accused might abscond ...
... since the investigation is not yet completed, the circumstances under which the offenses with which the accused are charged were committed, in particular the fact that it concerns a well-organised group, formed of organisers and members which took actions within a prolonged time ... imply that the accused might reoffend if they are released ...”
With a judgment of 21 February 2011, the panel ordered thirty-day extension of the applicants’ detention, which was based on all the three grounds specified above. The panel used identical phrases and words (as those cited above) to explain the risk of fleeing, reoffending and interfering with the investigation. It only added (regarding the risk of interfering with the investigation) that the investigation had been extended, which required that further evidence is obtained. On 4 March 2011 the Skopje Court of Appeal dismissed the applicants’ appeals dated 23 February 2011 and upheld the panel’s order.
On 22 March 2011 the panel ordered thirty-day extension of the applicants’ (and seven other co-accused) pre-trial detention due to the risk that they might flee and reoffend. The risk was justified with an explanation identical to that described above. It however stated inter alia:
“The material and verbal evidence adduced so far corroborates the high degree of reasonable suspicion that the accused have committed the crimes with which they are charged. Having regard to the nature, character and type of offences with which the accused are charged with the indictment; having regard that the accused committed the criminal offenses as a well-organised and compact group...
... The risk of reoffending is reinforced due to the circumstance that some of the criminal offenses are committed as continuing crimes, which underlines the nature and character of [the accused], as well as their susceptibility to take criminal activities of this type within a prolonged time ...”
On 28 March 2011 the applicants complained that the panel’s order violated their rights under Article 5 and 6 § 2 of the Convention, in that it did not provide concrete reasons for their detention; that the panel issued collective orders in which it used identical words and standardised phrases without specifying any particular reason concerning the applicants’ personal character that would justify their detention; that the wording used by the panel violated the principle of presumption of innocence. On 11 April 2011 the Skopje Court of Appeal dismissed the appeals providing identical explanation as in its judgment of 4 February 2011 (see above).
On 21 April 2011 the panel remanded the applicants (and seven other co-accused) in thirty-day custody in prison for the same reasons as described in the order of 22 March 2011 (see above). On 29 April 2011 the applicants appealed this order before the Court of Appeal. Until the date of introduction of the application (23 May 2011), the applicants were not informed whether the Court of Appeal decided their appeals.
No information was provided as to whether and if so, when, the applicants were released from prison custody.
C. Application no. 3723/12
On 26 June 2010 an investigating judge of the trial court opened an investigation against the applicants and twenty-four other people on account of criminal conspiracy, theft, withholding (прикривање) and trade of (отуѓување) valuable State-owned cultural heritage. He also ordered thirty-day pre-trial detention based on all three grounds specified under the Criminal Proceedings Act, namely the risk of absconding, reoffending and interfering with the investigation. The investigating judge stated:
“... the investigating judge took into consideration the manner, circumstances and motives for committing the crimes, as well as the mutual relation and high level of coordination between the accused when carrying out the actions, which suggests that [there was] a well-organised and compact group formed by organisers and members of that group for committing the crimes. Most of the accused stood trial for same offences (се судени за ист вид кривични дела); members of the group are in connection with offenders of the same type in neighboring States ...”
On 30 June 2010 the panel dismissed appeals by Mr N. Dimovski and Mr A. Stevanovik in which they complained that the investigating judge had failed to provide sufficient reasons for their detention. In particular, he disregarded their family situation, namely that both of them had minor children; that Mr N. Dimovski did not have a passport and had a poor health; that there was nothing to suggest that they might reoffend. Mr N. Dimovski further complained that the investigating judge violated the principle of presumption of innocence. With respect to both applicants, the panel justified the risk of flight with the gravity of charges and the potential penalty. The applicants’ family situation was irrelevant in this respect. The risk of reoffending and interfering with the investigation was justified with the need that further evidence is obtained and the fact that the accused had operated in concert.
On 23 July and 20 August 2010 the panel ordered, with a single decision, thirty-day extension of the prison custody in respect to all persons accused, including the applicants. It was based again on the risk of the accused absconding, reoffending and interfering with the investigation. The risk of the accused absconding was justified with the following reasoning:
“The material and verbal evidence adduced so far corroborates the reasonable suspicion that the accused have committed the crimes with which they are charged. Having regard to the nature, character and type of the offences subject to investigation; the gravity of the charges, the potential penalty prescribed for the offenses with which the accused are charged; as well as the possibility of prison sentence; the panel considers that there is a real risk of the accused absconding if they are released... The risk of fleeing is further supported by the financial circumstances of the accused, given that Mr N. Dimovski (and some of the co-accused) do(es) not have possessions, while the fact that most of the accused have families and children is insufficient to secure their presence during the pre-trial proceedings. It does not eliminate the possibility of fleeing ...”
As regards the risk of reoffending, the panel stated:
“... the panel [takes into consideration] the manner, circumstances and motives for committing the crimes, as well as the mutual relation and high level of coordination between the accused when carrying out the actions, which suggests that [there was] a well-organised and compact group formed by organisers and members of a group for committing the crimes. The risk of reoffending is further strengthened by the fact that most of the accused are charged for long-lasting offenses, which [gives light] to the persistence and continuity in perpetrating the incriminated actions... Furthermore, Mr Gotik, Mr D. Micov, ... Mr A. Stevanovik ... are already convicted and criminal proceedings for tax evasion are ongoing in respect of Mr P. Makeski, which speaks about the nature and structure of the accused’s personality and their susceptibility to commit criminal offenses ...”
With judgments of 20 August and 22 September 2010, the Skopje Court of Appeal dismissed appeals of the accused (including some of the applicants) in which they complained that the detention orders did not contain concrete and sufficient reasons for their detention, which was in violation of Article 5 of the Convention. It endorsed the reasoning given by the panel and stated that:
“... detention in prison custody in respect to the accused is the only efficient mechanism at this stage of the proceedings that secure their presence at the trial ...”
With decisions of 21 September, 20 October, 18 November, 20 December 2010 and 17 January, 17 February, 18 March, 19 April 2011 the panel ordered, on each occasion, thirty-day extension of the applicants’ pre-trial detention. The panel used identical words, as in its earlier extension orders of 23 July and 20 August 2010 (see above), to justify the risk of fleeing and reoffending. The Skopje Court of Appeal upheld those orders and the reasoning provided therein. Between 25 October 2010 and 10 May 2011 the panel also dismissed the applicants’ separate requests for more lenient measure or release on bail with the same reasoning as described above.
On 17 May 2011 the adjudicating panel in the applicants’ case replaced the order for custody in prison with an order for house arrest in respect of Mr N. Dimovski. The court stated that despite the risk of fleeing or reoffending, the applicant’s presence at the trial could be secured with a more lenient measure, house arrest in the present case. Mr N. Dimovski remained under house arrest until 14 September 2011 when the panel set aside the order for house arrest and replaced it with other alternative measures.
On 19 May 2011 the panel extended the detention in prison custody in respect to Mr Gotik, Mr D. Micov, Mr A. Stevanovik and Mr P. Makeski on the same grounds and with identical reasoning as before. On 7 June 2011 the Skopje Court of Appeal upheld that order.
On 1 June 2011 the panel accepted a request by Mr P. Makeski and ordered his release on bail. It held that this personal and family situation, namely the fact that he was married and had three mature children; that his residence was known; that he owned a company and was employed, coupled with the proposed bail (mortgage of an apartment which value was EUR 82,545), were sufficient to secure his presence at the trial.
On 17 June 2011 the panel extended the pre-trial detention in respect of Mr Gotik, Mr D. Micov and Mr A. Stevanovik for thirty days. The risk of absconding, which was the only ground on which the detention order was based, was justified with the same reasoning as before.
On 23 June 2011 the panel ordered that Mr A. Stevanovik is released on bail (mortgage of business premises which value was set at EUR 94,158). The panel hold that, alike in the case of Mr P. Makeski (see above), the bail proposed by Mr A. Stevanovik was sufficient to secure his presence at the trial.
It appears that Mr M. Gotik remained in prison custody until 10 August 2011 when the panel’s order for his release on bail became final. Mr D. Micov remained in custody until 21 September 2011, when the one-year time-limit for pre-trial detention after the introduction of the indictment has expired. The detention orders issued on 17 June, 10 August and 21 September 2011 were based on the risk of the applicant from absconding, which was justified with identical wording as described above.
COMPLAINTS
The applicants complain under Article 5 §§ 1 (c) and 3 of the Convention in that the courts did not give concrete and sufficient reasons for their detention; that the latter was extended by means of collective detention orders with reasoning that used stereotyped formula and an identical form of words. The applicant in application no. 33566/11 further complains under Article 5 that the review procedure of his detention was not carried out within a reasonable time. Relying on Article 6 § 2 of the Convention, he also complains that the wording used by the courts, in particular the panel’s judgment of 22 March 2011, violated the principle of presumption of innocence.
QUESTIONS
1. Was the applicants’ continued detention compatible with Article 5 § 3 of the Convention? Was it based on collective detention orders? Furthermore, were the grounds given by the courts concerning the extension of the applicants’ pre-trial detention “relevant and sufficient” as required under Article 5 § 3 of the Convention? (see Miladinov and Others v. the former Yugoslav Republic of Macedonia, nos. 46398/09, 50570/09 and 50576/09, 24 April 2014; and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, 28 October 2010)? These questions concern all applicants, with the exception of Mr P. Makeski.
2. As regards application no. 33566/11:
(a) Were the review proceedings before Skopje Court of Appeal, by which the applicants sought to challenge the detention order of 21 April 2011, compatible with the “speedy” requirement within the meaning of Article 5 § 4 of the Convention?
(b) As alleged by the applicants, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in this case? This concerns in particular the panel’s order of 22 March 2011 (see “the Facts”).
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
8784/11
07/02/2011
Bajruš SEJDIJI
09/03/1968
Nataša NAJDENOVA LEVIK
33566/11
23/05/2011
Velija RAMKOVSKI
04/02/1947
Emel RAMKOVSKA
23/11/1971
Skopje
Filip MEDARSKI
3723/12
23/12/2011
Dimitar MICOV
02/09/1958
Nikola DIMOVSKI
27/12/1977
Negotino
Andrija STEVANOVIK
01/12/1975
Negotino
Petar MAKESKI
25/02/1953
Prilep
Miodrag GOTIK
28/11/1966
Valandovo
Ana STOJKOVIK
Full & Egal Universal Law Academy