CASE OF MITRESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant was born in 1982 and lives in Kicevo. 6. At 11.30 a.m. on 12 February 2009 the applicant was arrested and taken into police custody. On 13 February 2009 an investigating judge from the Gostivar Court of First Instance (“the trial court”) questioned the applicant, who was assisted by counsel. An investigation was opened on the grounds of reasonable suspicion of extortion of money from a minor. The investigating judge refused a request by the public prosecutor for the applicant to be detained in prison, but ordered, instead, thirty days' house arrest (куќен притвор). That measure required the applicant to remain at home and to refrain from using any means of communication for the duration of the order. His passport was also seized and the police were ordered to check his presence in the house twice a day. The judge considered that there were reasonable grounds for suspecting the applicant of having committed the offence, but that in the light of his clean record and family circumstances, a non-custodial measure, such as house arrest, was preferable. The applicant's house arrest was ordered on all the grounds specified in section 199 of the Criminal Proceedings Act (see paragraph 14 below). This decision was served on the applicant and his lawyer at 5 p.m. 7. At 7 p.m. the same day, the public prosecutor appealed on the ground that the investigating judge had not provided sufficient reasons for refusing to detain the applicant in prison and had not examined whether house arrest could be supervised effectively. The applicant did not appeal. 8. On 14 February 2009 a three-judge panel of the trial court (“the panel”), sitting in private, allowed the appeal and replaced the order for the applicant's house arrest with an order for his detention in prison. It further quashed the order for the confiscation of the applicant's passport. The panel found that there was a danger that the applicant would interfere with the investigation, in particular by putting pressure on witnesses who had not been heard yet and on the victim, who, being a minor, was vulnerable. Having regard to the gravity of the offence and the way in which it had been committed, the panel ruled that house arrest was an inadequate measure in the applicant's case. This decision was served on the applicant at noon. No appeal lay against the panel's decision. 9. On 26 February 2009 the investigating judge terminated the panels' order for the applicant's detention in prison and ordered thirty days' house arrest accompanied by the same security measures described above (see paragraph 6 above). The judge found no justification for the applicant's continued detention in prison since the investigation had been completed. In this connection, he noted that evidence had been taken from the victim and witnesses proposed by both parties. Given the accompanying measures ordered, there was no likelihood of reoffending or obstructing the course of justice by influencing other witnesses, if any. 10. On 27 February 2009 the panel dismissed the public prosecutor's appeal, finding the house arrest and accompanying measures adequate to ensure the applicant's attendance at the trial. 11. The panel, sitting in first instance, extended the applicant's house arrest on two occasions, namely, on 26 March and 24 April 2009, with the stated aim of ensuring his attendance at trial. In doing so, it relied on the gravity of the charges and potential penalty. The applicant unsuccessfully appealed against both orders. The Gostivar Court of Appeal's decisions dismissing the applicant's appeals dated 23 April and 20 May 2009 respectively. 12. On 21 May 2009 the trial court convicted the applicant of extortion and sentenced him to one and a half years' imprisonment. It further extended the house arrest order until the criminal proceedings are completed. The proceedings are underway. 13. Section 22(6) of the Criminal Proceedings Act (“the Act”) provides that a three-judge panel of the trial court decides, inter alia, appeals against decisions of the investigating judge. 14. Under section 199(1), paragraphs 1-3, of the Act, pre-trial detention can be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of his or her absconding, interfering with the investigation or reoffending. 15. Under section 200(1), (6) and (8) of the Act, an investigating judge has jurisdiction to order pre-trial detention. The detainee may challenge the detention order before the panel within 24 hours. The appeal does not suspend the execution of the detention order. The panel must decide the appeal within 48 hours. The detainee, through his or her lawyer, can request to be notified of the date of the hearing before the panel in order to be able to present his or her arguments orally. 16. Section 205(2) and (6) of the Act provides that the panel, set up under section 22(6), may extend the period of detention by up to 60 days at the request of the investigating judge. Such an order can be challenged before the next level of jurisdiction.