MILADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicants were born in 1966, 1953 and 1961 respectively and live in Struga (the first and third applicants) and Ohrid (the second applicant). The applicants were private entrepreneurs. 6. On 23 December 2008 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against fifteen people (some of the accused were bankruptcy trustees, trial judges, lawyers, notaries and civil servants), including the applicants, on reasonable suspicion of having been involved in crimes with respect to bankruptcy proceedings concerning company I. All the applicants were charged with money laundering. In respect of the first applicant, the investigation also concerned charges of abuse of position, fraud and forgery and as regards the third applicant, charges of fraud. After having heard oral evidence from the accused, the investigating judge, in a single decision, ordered that nine of the accused, including the applicants, be placed in pre-trial detention for thirty days. The detention order was based on all the grounds specified under section 184(1)(1-3) of the Criminal Proceedings Act (hereinafter “the Act”, see paragraph 32 below), namely, a risk of the accused absconding and reoffending and interfering with the investigation. The judge relied on the gravity of the charges, the severity of the potential sentence and the possibility of the accused influencing witnesses, accomplices and other people concerned. 7. The first and second applicants appealed, arguing that the investigating judge had not given any concrete reasons to justify the detention of each of them. Both applicants pointed out that they had a permanent residence and family in the respondent State. The second applicant further submitted evidence regarding his poor health. 8. On 25 December 2008 a three-judge panel of the trial court (“the panel”), set up under section 22(6) of the Act (see paragraph 29 below), sitting in private, dismissed the appeal submitted by the first applicant. On 26 December 2008 it replaced the order for pre-trial detention with an order for house arrest in respect of the second applicant. 9. With three decisions dated 21 January, 19 February and 20 March 2009, the panel ordered, on each occasion, a thirty-day extension of the applicants’ pre-trial detention and house arrest, respectively. All extension orders were taken at hearings held in private (нејавна седница). The first two extension orders were given on a proposal by the investigating judge and were based on all three grounds specified under section 184(1)(1-3) of the Act. In the decision of 20 March 2009, which was given on a proposal by the public prosecutor, “interference with the investigation” was excluded from the list of grounds since an indictment was lodged against the applicants on that date. According to the applicants, the indictment was communicated to them on 6 April 2009. 10. As regards the risk of absconding, the extension order of 21 January 2009 stated that: “Having regard to the type, gravity and nature of the criminal offenses with which the accused are charged, the panel considers that there is a real risk of them absconding if they are released. That is sustained with the behaviour of some of the accused, namely [the first applicant] has a previous criminal record and criminal proceedings are pending in respect of [the second applicant]. As regards the personal circumstances of the accused, the panel took into consideration that most of them have a family; that they are parents and have possessions, but it considers that they do not provide for a sufficient guarantee, at this stage of the investigation, that they would not abscond if they are released...” 11. As to the possibility of their reoffending, in all three orders the panel stated, inter alia: “... the panel has taken into consideration the nature, character and type of offences and the manner and conditions in which they were committed, which make the possibility of reoffending particularly likely. Particular attention has been paid to the fact that the criminal offences with which the accused are charged (or ‘in respect of which there is a reasonable suspicion’) have been committed through the use of the position and characteristics of the accused as holders of special powers [со искористување на положбата и својствата на обвинетите и како носители на посебни овластувања].” 12. The extension order of 19 February 2009 relied on the same reasons and used identical wording to justify the risk of the applicants absconding and reoffending. It added a reference to the severity of the potential penalty, as a ground that justified the risk of flight. 13. As regards the risk that the applicants might flee, the extension order of 20 March 2009 stated: “... The contents and quality of the material and verbal evidence adduced corroborates the suspicion that the accused have committed the crimes with which they are charged ... Consequently, the panel considers that at this stage of the proceedings, namely, after the indictment was lodged ... there is still a real risk of the accused absconding if they are released. That would considerably affect the proceedings and prevent the case from being decided. Having been acquainted with the indictment and the reasons given therein, and having been faced with the possibility of a prison sentence, the accused, if released, could flee or otherwise go into hiding ...” 14. As regards the possibility that the applicants might reoffend this order provided an explanation identical to that contained in the previous orders. The panel further added: “... In particular, [the first and third applicants] are the owners of several companies through which the offences with which they are charged were committed. The other accused are employed by or otherwise connected with those companies ...” 15. After 16 April 2009 the panel extended the applicants’ pre-trial detention and house arrest, respectively on its own motion. Between 16 April and 16 September 2009 the panel, sitting in private (нејавна седница), issued six orders each providing for a thirty-day extension of the applicant’s detention due to the risk that they might flee and the possibility that they might reoffend. The risk was justified, in all extension orders with an explanation identical to that described above (see paragraphs 13 and 14 above). Besides the above reasons, in all six extension orders given during this time, the panel stated: “... Given the fact that the detention in prison custody and house arrest are the most efficient measures that secure the attendance of the accused at the trial ... which had a positive bearing on their right to a hearing within a reasonable time .... the panel considers that the extension and maintaining of the detention .... is justified ...” 16. In addition to the above reasoning, the extension orders of 18 June, 17 July, 17 August and 16 September 2009 (each proving for a thirty-day extension of the applicants’ detention) contained a reference to the third applicant’s previous criminal record. 17. On 28 May 2009 Mr D. Godžo visited the first applicant in Skopje prison. On that occasion, the first applicant signed a letter of attorney for Mr Godžo to represent him in the proceedings before the Strasbourg Court. The prison administration retained that document because Mr Godžo had not informed them in advance that such a document would be signed. The first applicant requested that the prison governor, the trial court and the Ombudsman take measures to remedy the situation. After eighteen days the retained document was returned to Mr Godžo. 18. On 18 September 2009 the panel set aside the order for house arrest in respect of the second applicant and ordered that his passport be seized. In the absence of an appeal, the order became final. 19. Between 15 October 2009 and 14 January 2010 the panel issued four orders each providing for a thirty-day extension of the detention of the first and third applicants for the same reasons and with an identical wording to that described above (see paragraphs 13-16). All orders were taken at hearings held in private. 20. As evident from the available material in the case file, the applicants appealed against the extension orders, arguing, inter alia, that the panel had not given sufficient reasons to substantiate the risk of them absconding and reoffending, given their family situation and the state of health of the second applicant (who suffered from a chronic illness and needed regular medical care). The first applicant further argued that his previous conviction concerned a traffic offence, which could not be relied on by the courts to justify the risk of his reoffending. The applicants also complained that the wording used in the decisions in question violated their right to the presumption of innocence as guaranteed by the Act and the Convention. The first and third applicants further requested, under section 388(1) of the consolidated version of the Act (the text of which is identical to section 362(1) of the Act, see paragraph 31 below), to be informed of the date of the session (седница) of the Court of Appeal. Lastly, the applicants sought release and replacement of the detention order with a more lenient measure specified under the domestic law. 21. The Skopje Court of Appeal, sitting in private, dismissed the appeals, finding that the panel had given sufficient reasons for the applicants’ continued detention. In the decisions (dated 5 May, 8 June, 6 July, 30 July,10 September, 5 October and 2 November 2009), the Court of Appeal referred to written submissions in which the public prosecutor requested, under section 361(1) of the Act (see paragraph 36 below) that the court dismisses the applicants’ appeals. In its decisions of 5 October and 2 November 2009 it also dismissed the requests of the first and third applicants that it decide in a public session (седница), finding that section 388(1) of the Act was inapplicable in their case. 22. As regards the risk of the applicants absconding, in the decisions dated 5 May, 8 June, 30 July and 10 September 2009, the Skopje Court of Appeal stated, inter alia: “... The court considers that, as evident from the case-file, the circumstances of the concrete criminal act, taken in connection with the nature, type, gravity and the manner in which the criminal offences were committed ... faced with the possibility to be sentenced to imprisonment and the severity of (this penalty) suggest that there is a risk of the accused of absconding in order to avoid eventual criminal responsibility for the criminal offences in question ... In this connection the court neither accepts nor does it consider that the allegations of the accused that they have family; that they are parents with a permanent residence [in the respondent State] are of any relevance ... ” 23. Regarding the possibility that the applicants might reoffend, the court stated that: “... [the court took into consideration] all the circumstances of the concrete criminal act, in particular, the nature and type of the criminal offences, the manner in which they were committed, especially the fact that the (first and third applicants) are the owners of several companies through which the crimes were committed and (the second applicant) was linked with those companies by way of having been engaged in work-related activities ... The above is further supported by the fact that there are criminal proceedings pending in respect of (the second applicant) and that (the first applicant) has already been convicted. All [the above] increases the risk of the accused reoffending if they are released at this stage of the proceedings ... having regard, in particular, to the fact that the criminal offences, as stated, were committed through the use of the position and powers of the accused ...” 24. Identical wording, limited to the first and third applicants, was used in decisions of 5 October, 2 and 25 November and 29 December 2009 in which the Skopje Court of Appeal dismissed the appeals brought by these applicants. In all decisions the Court of Appeal also referred to the detention “as the most efficient measure to secure the attendance of the accused at the trial”. 25. In all the above decisions the Skopje Court of Appeal further stated: “The court examined the complaints ... denying the existence of offenses and criminal responsibility of the accused, but it considers that they are irrelevant in the appeal proceedings in question, given that the only issue to be decided at this moment is whether there are reasons for detention ... In this connection (these) complaints will be examined at the trial ... where the court will adjudicate on the merits (of the case).” 26. On 29 January 2010 the trial court found the applicants guilty and sentenced the first and third applicants to six and a half years’ imprisonment and the second applicant to a prison term of two years. The court further decided that the first and third applicants would remain in custody until the judgment became final. 27. On 24 September 2010 the Skopje Court of Appeal allowed the appeals submitted by the applicants’ and the public prosecutor and quashed, in a public session, the trial court’s judgment. It also ordered the first and third applicants’ release of its own motion, finding that there were no grounds to justify their detention. 28. No further information was provided as regards the criminal proceedings against the applicants.