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FIFTH
SECTION
CASE OF LAZOROSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 4922/04)
JUDGMENT
STRASBOURG
8 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lazoroski v. the
former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4922/04) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national, Mr
Jovče Lazoroski (“the applicant”), on 24 January
2004.
- The
applicant was represented by Ms L. Vanevska, a lawyer practising in
Skopje. The Macedonian Government (“the Government”) were
represented by their Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged, in particular, that his arrest was contrary to
Article 5 §§ 1 (c) and 2 of the Convention and that the
ensuing proceedings for a review of its lawfulness did not satisfy
the requirements of Article 6 § 1 of the Convention.
- On
29 January 2008 the President of the Fifth Section decided to
communicate these complaints to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Kičevo.
1. The applicant's arrest
- On
6 August 2003 the applicant received a telephone call from an officer
of the Intelligence Service (Управа
за безбедност
и контраразузнавање)
who asked him to come to a police station for a “talk”.
The applicant replied that he would attend with his lawyer provided
he received a written request.
- Mr
J.S., a high-ranking officer in the Intelligence Service gave a
verbal order for the applicant's arrest on suspicion that he was
armed and might leave the State.
- At
11.15 p.m. the same day the applicant was arrested by police near the
Tabanovce border post with Serbia. He was taken to Tabanovce police
station and a body search was carried out. A report on the search
indicated that a mobile phone, passport, identity card and a licence
to carry arms (“the licence”) had been found. According
to the parties, a gun was also found, but was not recorded in the
report. The applicant was handcuffed and transferred to Kumanovo
police station by the Intelligence Service. He managed to contact his
lawyer on his mobile phone.
2. Events in police custody
- At
2 a.m. on 7 August 2003 the applicant signed a report in which he
waived his right to a lawyer. No record of questioning was kept. The
applicant maintained that he was questioned about the work of his
superiors (one of the executive managers of company O.), about
certain members of the then opposition political party and certain
high-profile journalists. His personal belongings were returned and
he was released at 9 a.m.
3. Findings of the Sector for Internal Control at the
Ministry of the Interior
- On
7 August 2003 the applicant brought his alleged unlawful arrest to
the attention of the Ministry of the Interior (“the Ministry”)
and on 3 November 2003, to the Sector for Internal Control at
the Ministry (“the Sector”). Several letters were
subsequently exchanged between the applicant and the Sector.
- In
a report of 3 March 2004 the Sector noted that the applicant's arrest
and detention had been carried out in compliance with the law. Owing
to minor errors in the minutes concerning the body search, the Sector
proposed that the police officers responsible be fined and warned.
The Sector repeated these findings in its reply to the applicant
dated 22 March 2004. No explanation was given for the
applicant's arrest.
4. Review of the lawfulness of the applicant's
detention
- On
7 August 2003 the applicant requested an investigating judge at the
Kumanovo Court of First Instance to review the lawfulness of his
deprivation of his liberty (барање
за испитување
на законитоста
на лишувањето
од слобода). He
claimed that he had been detained unjustifiably; that he had not been
informed of the reasons for his arrest; that his lawyer had been
prevented from attending his interview and that the arrest had been
carried out without a court order.
- Between
15 October 2003 and 12 January 2004 the investigating judge was on
sick leave.
- On
4 February 2004 the investigating judge requested the Ministry to
provide documents concerning the applicant's arrest. In a reply of
20 February 2004, the Ministry stated that the applicant's
arrest had been ordered on account of suspicion that he had been
involved in arms trafficking and that he had been released after it
had been established that there was no evidence to support the
allegations and that he had the requisite licence. On 23 June and 21
September 2004 the investigating judge required further written
evidence from the Ministry which the latter submitted on 29 September
2004.
- On
26 January 2005, after five requests by the applicant for the
proceedings to be expedited and relying on the information provided
by the Ministry and the reports described in paragraphs 8 and 9
above, the investigating judge found that the applicant had been
lawfully deprived of his liberty on suspicion of arms trafficking.
She further found that the applicant had waived his right to a
lawyer, as noted in the report of 7 August 2003, which had been
duly signed by the applicant. The applicant was advised that he could
appeal within two days to a three-judge panel (“the panel”)
(Кривичен
Совет) of the
Kumanovo Court of First Instance.
- On
16 February 2005 the applicant appealed, arguing that he had been
deprived of his liberty contrary to Article 5 of the Convention and
the applicable legislation. He maintained that he had been arrested
without a court order and that the investigating judge had failed to
examine the grounds for his deprivation of liberty. He further
submitted that he had not been summoned by the investigating judge to
present the arguments in his favour and that there had been witnesses
who could have shed light on the circumstances surrounding his
arrest.
- On
18 February 2005 the panel dismissed the applicant's appeal. Finding
no reasons to question the established facts, it ruled that the
applicant's deprivation of liberty had been lawful and intended to
identify him, verify his alibi and collect necessary information. It
noted that he had been informed of his rights and the reason for his
arrest, namely a reasonable suspicion that he had committed the
offence of “trafficking in arms”.
- No
proceedings were taken against the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution
- Article
12 §§ 2, 3 and 4 of the Constitution provides that freedom
cannot be restricted except by a court decision and in cases and
proceedings regulated by a law. Individuals summoned, arrested or
detained must be informed promptly of the reasons for the summons,
arrest or detention and of their statutory rights. They cannot be
forced to make a statement. Everyone has a right to a lawyer in
police and in court proceedings. Detainees must be brought, promptly
or within twenty-four hours of their arrest, before a court which
will examine the lawfulness of their detention.
2. Criminal Proceedings Act of 1997 (“the Act”)
- Section
3(1) and (2) of the Act, as worded at the material time, provided
that everyone summoned, arrested or detained had to be informed
promptly, in a language which he or she understood, of the reasons
for the summons, arrest or detention and of his or her statutory
rights. He or she could not be forced to make a statement. The
suspect, that is, the person accused, had to be clearly informed from
the outset of his or her right to remain silent, to consult with a
lawyer, to have a lawyer of his or her choice present during
questioning, and to inform a third party of his or her detention.
- Section
22(6) of the Act provided for a three-judge panel of the
first-instance court to hear, inter alia, appeals against
decisions of the investigating judge.
- Section
142(4) laid down that a person against whom the Ministry had taken
the measures set forth in subsection 2 (measures which the Ministry
was authorised to take on account of suspicion that an offence had
been committed) could request the court to review the lawfulness of
those measures and that the court had to issue a decision.
- Under
section 184(1)(1) of the Act, pre-trial detention could be ordered on
reasonable suspicion that the person concerned had committed an
offence if he or she had gone into hiding or his or her identity
could not be determined, or when there were circumstances to suggest
the possibility that he or she might abscond.
- Section
188(2) provided that Ministry officials could arrest without a court
order anyone suspected of committing an offence prosecutable
ex officio. The arrested person had to be brought
promptly before an investigating judge. In accordance with section
188(3) and as an exception to the general rule, Ministry officials
could detain a person if it was necessary to determine his or her
identity; to verify his or her alibi or if there were other grounds
requiring the collection of information to enable proceedings to be
brought against a third party. Such detention could be effected only
if the requirements for pre-trial detention, as set forth in sections
184(1)(1) and (1)(3), were met. Section 184(4) required the arrested
person to be given the information referred to in section 3 of the
Act. Section 184(6) provided that detention pursuant to section
184(3) could not exceed twenty-four hours. The Ministry official was
required either to release the arrested person or to proceed in
accordance with section 184(2).
- Sections
527(2) and 528 of the Act, which related to compensation for wrongful
conviction and unjustified detention, stipulated that the party
concerned had to lodge any claim for damages with the Ministry of
Justice in the first instance and to indicate the requested form and
amount of any settlement. If the compensation claim was not upheld or
the Ministry of Justice failed to decide it within three months from
the date the claim was brought, the party concerned could claim
compensation in the court of competent jurisdiction.
- In
accordance with sections 530(1) (3) and 530(2) of the Act, a person
was entitled to compensation if he or she had been unjustifiably
deprived of his or her liberty through the fault or unlawful conduct
of a body. A person unlawfully arrested under section 188 of the Act
could claim compensation.
3. Amendment of the Criminal Proceedings Act of October
2004 (“the amended Act”)
- Section
49 of the amended Act replaced section 142 of the Act. Under
subsection 9, the person concerned may within thirty days request the
investigating judge to review the lawfulness of the measures taken by
the police. An appeal to the panel may be lodged within 48 hours. The
panel must issue its decision within three days.
4. Practice in awarding compensation in cases of
unlawful and unjustified deprivation of liberty
- In
case no. П.бр.441/06 the
Ministry of Justice, on the basis of a
court settlement, paid compensation
to a claimant who had been held for three days before being
released. The investigation against him was also discontinued.
- On
15 February 2007 the Ministry of Justice paid compensation for
non-pecuniary loss sustained by Mr N.N. following his arrest in 2006
to serve a prison sentence he had already served in 2004 (бр.
08-692/2).
- In
civil proceedings instituted under the Law on Obligations (Закон
за облигационите
односи),
Mr R.M. was awarded compensation after being unjustifiably held in
police custody in order to serve a prison sentence even though no
such sentence had been imposed, but rather a security measure -
compulsory psychiatric treatment on release.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 (c), 2 AND 3
OF THE CONVENTION
- The
applicant complained under Article 5 §§ 1, 2 and 3 of the
Convention that his deprivation of liberty had not been based on any
of the permissible grounds under those provisions and that he had not
been informed of the reasons for his arrest. The relevant parts of
Article 5 §§ 1 (c), 2 and 3 of the Convention read as
follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial”
- The
Court observes that the applicant's allegations under Article 5
§ 3 of the Convention are in fact
a restatement of his complaints under Article
5 § 1 and, therefore, must be examined under that
provision.
A. Admissibility
1. The parties' submissions
- The
Government submitted that the applicant had not exhausted all
effective domestic remedies. In particular, he had failed to claim
compensation under section 530 of the Act (see paragraph 26 above).
In their submission, the practice described in paragraphs 28-30 above
supported the view that such claims afforded an effective remedy.
- The
applicant maintained that a compensation claim would have been
ineffective in his case given the outcome of the proceedings at
issue.
2. The Court's assessment
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. Article 35 § 1 also requires
that the complaints intended to be brought subsequently before the
Court should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal requirements
laid down in domestic law, but not that recourse should be had to
remedies which are inadequate or ineffective (see, mutatis
mutandis, Merger and Cros v. France (dec.), no. 68864/01,
11 March 2004; Aksoy v. Turkey, 18 December 1996, §§
51-52, ECHR 1996-VI; and Akdivar and Others v. Turkey, 16
September 1996, §§ 65-67, ECHR 1996-IV).
- The
Court emphasises that the application of the exhaustion rule must
make due allowance for the fact that it is being applied in the
context of machinery for the protection of human rights and that it
must be applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the
purposes of reviewing whether it has been observed, it is essential
to have regard to the circumstances of the individual case. This
means, in particular, that the Court must take realistic account not
only of the existence of formal remedies in the legal system of the
Contracting State concerned, but also of the general context in which
they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case,
the applicant did everything that could reasonably be expected of him
or her to exhaust domestic remedies (see Jasar v. the former
Yugoslav Republic of Macedonia (dec.), no. 69908/01, 19 January
and 11 April 2006).
- It
further recalls that an applicant who has exhausted a remedy that is
apparently effective and sufficient cannot be required also to have
tried others that were available but probably no more likely to be
successful (see Aquilina v. Malta [GC], no. 25642/94,
§ 33, ECHR 1999-III).
- The
Court notes that the remedy which the applicant pursued could have
given rise to a declaration that his detention overnight from 6 to
7 August 2003 was unlawful. The applicant thus put to the
domestic courts, in accordance with domestic law, the substance of
his subsequent complaint to the Court. In these circumstances, he was
not required, in addition, to make a request for compensation which
could also have given rise to a finding that the detention had been
unlawful.
- This
part of the application cannot, therefore, be declared inadmissible
for non-exhaustion of domestic remedies within the meaning of Article
35 of the Convention. Accordingly, the Government's objection must be
rejected.
- The
Court further considers that it is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It also finds
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. Alleged violation of Article 5 § 1 (c) of the
Convention
(a) The parties' submissions
- The
Government submitted that the applicant had been arrested and
detained in police custody in compliance with the law and on account
of reasonable suspicion that he had committed an offence. In this
latter respect, they referred to the scope of the work and terms of
appointment of the Director of the Intelligence Service which, they
said, served as an irreversible presumption that the latter had had
“certain operative indications” about the applicant's
alleged involvement in committing the offence. They further
maintained that the gun found in the applicant's possession had
confirmed those allegations initially. They noted, too, that the
applicant had been released when the police failed to find any
evidence of his involvement in the commission of an offence.
- The
applicant maintained that the Government had not presented any
concrete information or evidence to confirm the “reasonableness"
of the suspicion on which his arrest and detention had been based.
The fact that a gun had been found in his possession could not be
held against him since he had a licence, as indicated in the record
of the body search.
(b) The Court's assessment
- The
Court notes that the applicant was arrested at 11.15 pm. on 6 August
2003 and released at 9.00 am. on 7 August 2003.
- Noting
the parties' submissions, it considers that the applicant's detention
in police custody amounted to a “deprivation of liberty”
within the meaning of Article 5 § 1 of the Convention (see,
mutatis mutandis, Witold Litwa v. Poland, no. 26629/95,
§ 46, ECHR 2000 III).
- The
Court must consider whether it was based, as the Government
submitted, on “reasonable suspicion” of his having
committed an offence.
- In
this connection, it reiterates that a “reasonable suspicion”,
within the meaning of Article 5 § 1 (c) of the Convention, that
a criminal offence has been committed presupposes the existence of
facts or information which would satisfy an objective observer that
the person concerned may have committed an offence. The question is
whether the arrest and detention were based on sufficient objective
elements to justify a “reasonable suspicion” that the
facts at issue had actually occurred (see Włoch v. Poland,
no. 27785/95, §§ 108 and 109, ECHR 2000 XI).
- From
the case file as it stands, the Court cannot determine why the
applicant was suspected of being involved in any alleged crime. The
judicial authorities did not provide any information concerning an
alleged offence, let alone any evidence in support of his
involvement. They merely indicated that the allegations had
transpired to be unsubstantiated and that the applicant had the
requisite licence for his gun. The Court notes that this was
confirmed immediately after the applicant's arrest when the body
search was carried out (see paragraph 8 above). Furthermore, the
police could easily have established this from their own records.
- The
Court reiterates that the facts which raise a suspicion need not be
of the same level as those necessary to justify a conviction or even
the bringing of a charge, which comes at a later stage of the process
of criminal investigation (see K.-F. v. Germany, 27 November
1997, § 57, Reports of Judgments and Decisions 1997 VII).
In the instance case, however, there was nothing to suggest that the
applicant was involved in trafficking in arms. Even in the
proceedings before the Court, the Government did not present any
material that would persuade it to conclude otherwise. The “operative
indications” of the Intelligence Service, in the absence of any
statement, information or a concrete complaint cannot be regarded as
sufficient to justify the “reasonableness" of the
suspicion on which the applicant's arrest and detention were based.
- On
the basis of the foregoing, the Court concludes that the applicant's
deprivation of liberty did not constitute lawful detention effected
“on reasonable suspicion” of his having committed an
offence. There has therefore been a breach of Article 5 § 1 (c)
of the Convention.
2. Alleged violation of Article 5 § 2 of the
Convention
(a) The parties' submissions
- The
Government submitted that although there had been no report attesting
that the applicant had been informed of the reasons for his arrest,
this could be presumed from the fact that the arrest was carried out
by high-ranking officers from the Intelligence Service, who were well
trained for complex actions.
- The
applicant contested the Government's arguments.
(b) The Court's assessment
- The
Court reiterates that Article 5 § 2 of the Convention contains
the elementary safeguard that any person arrested should know why he
is being deprived of his liberty. By virtue of this provision any
person arrested must be told, in simple, non-technical language that
he can understand, the essential legal and factual grounds for his
arrest, so as to be able, if he sees fit, to apply to a court to
challenge its lawfulness (see Fox, Campbell and
Hartley v. the United Kingdom, 30 August 1990, § 40, Series
A no. 182).
- The
Court notes that none of the reports submitted by the Government
indicated that the applicant was informed of the reasons for his
arrest. Furthermore, no report was drawn up regarding the applicant's
questioning while in police custody, and there has been no other
evidence, such as a statement from one of the arresting officers,
that the applicant was given reasons for the arrest.
- In
the absence of any evidence, the Court is not persuaded that the
applicant was informed of the reasons for his arrest as required
under Article 5 § 2 of the Convention. There has accordingly
been a breach of that provision.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant further complained that he had been arrested without a
court order and that he had been prevented from consulting a lawyer.
In this latter respect, he complained that he had been forced to sign
the report of 7 August 2003 (see paragraph 9 above) under threat
of not being released.
1. As regards the applicant's arrest without a court
order
- The
Court notes that the applicant's arrest was based on section 188(2)
of the Act, which permitted an arrest to be made without a court
order. That fact was established by the domestic courts. Furthermore,
Article 12 of the Constitution provides that deprivation of liberty
may be carried out also “in cases and proceedings regulated by
a law”.
- In
such circumstances, the Court considers that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
2. As regards the alleged denial of access to a lawyer
- Assuming
that this complaint falls within the ambit of Article 5 of the
Convention, the Court considers that it is manifestly-ill founded for
the following reasons.
- According
to the police report of 7 August 2003, which is the official record
of the events, the applicant waived his right to see a lawyer. He
signed the report without making any comment or reservation that
would confirm his allegations before the Court. He did not object to
the content of this report, except in so far as he claimed that he
had agreed to the waiver under threat by the police. In this latter
respect, the Court observes that no evidence whatsoever has been
adduced to support his allegation that the waiver was made under
conditions of threat and duress by the police (see, mutatis
mutandis, Berisha and Haljiti v. the former Yugoslav Republic
of Macedonia (dec.), no. 18670/03, 10 April 2007).
- It
follows that the applicant's complaint was not substantiated. It is
therefore manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had not been given the right to
participate effectively in the proceedings and that the latter had
been unreasonably lengthy. In this connection, he relied on Article 6
of the Convention, which in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time... by [a] ... tribunal...”
- For
the same reasons, the applicant invoked Article 13 of the
Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court observes that the applicant's allegations under Article 13
of the Convention are in fact
a restatement of his complaints under Article 6
and, therefore, must be examined under Article 6 § 1
of the Convention.
A. Admissibility
- The
Government did not raise any objections concerning the admissibility
of the applicant's complaints under this head.
-
The Court recalls that in the case of Aerts v. Belgium, which
concerned proceedings for legal aid to challenge the lawfulness of
detention and to seek compensation, it stated that Article 6 applied
to proceedings concerning the lawfulness of deprivation of liberty
(Aerts v. Belgium, 30 July 1998, § 59, Reports of
Judgments and Decisions 1998 V). In the subsequent case of
Reinprecht v. Austria, it noted the risk of conflict between
Article 5 § 4 and Article 6 of the Convention if both provisions
were to apply to the same set of proceedings. In particular, it
explained the different contexts of cases which concern the
lawfulness of detention to which Article 5 § 4 applies on the
ground that the detention is continuing, and those to which Article 5
§ 4 does not apply because the proceedings are conducted after
the applicant's release (Reinprecht v. Austria, no. 67175/01,
§§ 50, 51, ECHR 2005 XII and the cases cited there).
- The
Court notes that the applicant was no longer detained when he brought
his action, and its purpose cannot have been to bring about his
release. Accordingly, Article 5 § 4 of the Convention did not
apply to the proceedings, and there is no obstacle to the
applicability of Article 6 to the proceedings.
- The
Court considers that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Adversarial nature of the proceedings
(a) The parties' submissions
- The
Government submitted that the proceedings in question had satisfied
the procedural requirements of fairness. In this connection, they
maintained that the courts had reached their decisions on the basis
of evidence submitted by the Ministry and the applicant who, through
his written submissions, had been given sufficient opportunity to
present his case. They further stated that the applicant had not been
heard during the proceedings since no such requirement was contained
in the Act. The investigating judge had decided the issue on the
basis of the written material submitted by the parties.
- The
applicant contested these arguments stating that the courts' failure
to communicate to him the documents submitted by the Ministry was
contrary to the principle of equality of arms.
(b) The Court's assessment
- The
Court reiterates that the right to adversarial proceedings means in
principle the opportunity for the parties to a criminal or civil
trial to have knowledge of and comment on all evidence adduced or
observations filed, with a view to influencing the court's decision.
The principle of equality of arms – one of the elements of the
broader concept of fair trial – requires each party to be given
a reasonable opportunity to present his case under conditions that do
not place him at a substantial disadvantage vis-à-vis
his opponent (see Morel v. France, no. 34130/96, § 27,
ECHR 2000 VI).
- Further,
Article 6 guarantees the right of a party to participate effectively
in the proceedings, which includes, inter alia, not only his
right to be present, but also to hear and follow the proceedings.
Such rights are implicit in the very notion of an adversarial
procedure (see, mutatis mutandis, Mitrevski v. the former
Yugoslav Republic of Macedonia, no. 33046/02, § 35, 21
June 2007).
- Turning
to the present case, the Court notes that the decision of the
investigating judge of 26 January 2005 was based on the written
evidence submitted by the Ministry (see paragraph 15 above). There is
nothing to show that that evidence was ever served on the applicant.
Furthermore, it is not in doubt that the applicant was not invited to
attend the decisive hearing before the investigating judge. His
complaints in this respect were left unanswered by the appeal panel.
The Court therefore, concludes that he was prevented from effectively
participating in the proceedings at issue.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
2. Length of the proceedings
(a) The parties' submissions
- The
Government submitted that the length of the proceedings had not been
excessive and that all time-limits, although short, had been
respected by all those involved. In this latter respect, they stated
that the Act had not specified any time-limit for the investigating
judge to reach a decision. The fact that she had been on sick leave
and the absence of any other available judge to replace her also had
to be taken into consideration.
- The
applicant submitted that, given the short time-limits specified in
the Act, the proceedings at issue had to be regarded as urgent and
that the proceedings before the investigating judge had fallen foul
of the “reasonable-time” requirement.
(b) The Court's assessment
- The
Court notes that the proceedings in question started on
7 August 2003, when the applicant challenged the lawfulness
of his arrest before the investigating judge. They ended on 18
February 2005 with the panel's decision dismissing the applicant's
appeal. The proceedings therefore lasted one year, six months and
twelve days for two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII; Humen
v. Poland [GC], no 26614/95, § 60,
unreported; Comingersoll S.A. v. Portugal [GC],
no. 35382/97, ECHR 2000-IV; and Philis v. Greece (no.
2), judgment of 27 June 1997, Reports 1997-IV, §
35).
- The
Court does not find the applicant's case to have been complex.
- It also observes that there were no delays
attributable to the applicant. On the contrary, his motions to
expedite the proceedings constitute a factor in his favour (see
paragraph 15 above).
- As
regards the conduct of the authorities, the Court notes that it took
a little under one and a half year for the investigating judge to
issue a decision, and the panel which decided the applicant's appeal
took two days (see paragraph 17 above). Although the dispute
concerned the lawfulness of the applicant's detention for a period of
10 hours, it did not require special diligence on the part of the
authorities since the applicant was not in custody when he lodged the
challenge.
- Against
this background, the Court considers on the whole that the
length of the proceedings in the present case was not excessive (see,
mutatis mutandis, Kertakov v. the former Yugoslav Republic
of Macedonia (dec.), no. 13302/02 , 6 November 2006 and
Bajraktarov v. the former Yugoslav Republic of Macedonia (dec.),
no. 34112/02, 18 November 2008) and that there has been no violation
of Article 6 § 1 of the Convention in respect of the length of
the proceedings.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 33,000 euros (EUR) in respect of non-pecuniary
damage for the humiliation, fear and stress sustained as a result of
his unlawful arrest and the length of the ensuing proceedings.
- The
Government contested the above claim as unsubstantiated.
- The
Court considers that the applicant has suffered non-pecuniary damage
which is not sufficiently compensated for by the finding of a
violation. Making its assessment on an equitable basis, it awards him
EUR 2,000 under this head.
B. Costs and expenses
- The
applicant also claimed 35,780 Macedonian denars for the costs and
expenses he incurred before the domestic courts. This figure
concerned the legal fees related to the submissions described in
paragraphs 10, 12, 15 and 16 above. The applicant provided an
itemised list of costs. He also claimed EUR 5,000 for the costs and
expenses incurred before the Court. No document was submitted in
support of this latter claim.
- The
Government contested these claims as excessive and unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004-IV). The Court points out that
under Rule 60 of the Rules of Court “the applicant must submit
itemised particulars of all claims, together with any relevant
supporting documents failing which the Chamber may reject the claim
in whole or in part” (see Parizov v. the former Yugoslav
Republic of Macedonia, no. 14258/03, § 71, 7 February
2008).
- Having
regard to the fee note submitted by the applicant, the Court finds
that only EUR 180 related to lawyer's fees expended with a view to
preventing before the national courts of the violations found by the
Court (see, mutatis mutandis, Stoimenov v. the former
Yugoslav Republic of Macedonia, no. 17995/02, § 56, 5
April 2007).
- It
considers therefore that the applicant is entitled to be reimbursed
EUR 180 under this head, plus any tax that may be chargeable to him.
- Lastly,
the Court notes that the applicant did not submit any supporting
documents or particulars in respect of his claim for the costs and
expenses incurred in the proceedings before it. Accordingly, it does
not award any sum under this head (see Parizov, cited above,
§ 72).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 5 §§
1 (c) and 2 and Article 6 § 1 of the Convention admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 §§ 1 (c) and 2 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention in that the proceedings were not
adversarial
4. Holds that there has been no violation of Article 6 §
1 of the Convention in respect of the length of the proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 2, 000 (two thousand euros) for non-pecuniary
damage;
(ii) EUR 180 (one hundred and eighty euros) in respect of
costs and expenses;
(iii) plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
