CASE OF KARAJANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible (Article 35-3-a - Ratione materiae);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano
5. The applicant was born in 1936 and lives in Skopje. He was a high-ranking official during the communist era. At the time of the events, he neither held a public office nor was a candidate for such an office. 6. On the basis of a request by a third person and of its own motion, on 27 May 2013 the Fact Verification Commission (“the Commission”) established in lustration proceedings that the applicant had collaborated with State security bodies. Relying on two files from the State Archives, it “established indisputably that [the applicant] gave information ... to State security bodies about individuals ... namely ... he collaborated with the State security services in a conscious, secret, organised and continuous manner as a secret collaborator.” Accordingly, it held that the applicant had fulfilled the condition for restricting his candidacy to or performance of public office. The Commission based its decision on the relevant provisions of the 2012 Lustration Act (see paragraphs 19, 23-26 below) and the Administrative Proceedings Act. 7. Referring to a report registered as file no. 6825, the Commission established that in 1963, after he had visited his brother in Sweden, the applicant had given information about his brother, his brother’s wife and other people to State security bodies. He also had provided information about other people after he had returned to the city of Gevgelija. The Commission established that the applicant had been engaged by the security services before leaving for Sweden and that they had intended to continue collaborating with the applicant. The file further noted that in 1964 the applicant had shared his impressions about his stay in Sweden with his father. 8. On the basis of documents in another file, file no. 2599, the Commission established that the applicant, while editor-in-chief of a newspaper in 1962 and afterwards, had provided information to the security services about a colleague, the colleague’s articles and his relations with other people. 9. The Commission’s decision was published on its website on 30 May 2013, in accordance with sections 29 and 31 of the Lustration Act (see paragraphs 25 and 26 below). It contained information about the applicant’s place of birth, his personal identification number and the positions he had held. The decision was served on the applicant on 4 June 2013. 10. On 11 June 2013 the applicant challenged the decision in the Administrative Court, arguing that the Commission’s findings based on file no. 6825 had been wrong since the file had obviously been about another person with the same name and not him. He submitted several documents to show that the lustration decision had been a result of mistaken identity. The documents were his birth certificate, which showed a date of birth that was different from the one in file no. 6825; an inheritance decision, certified by a notary public, attesting that the applicant had a sister rather than a brother; his notarised military card, which showed that in 1963 he had been doing military service in Bosnia and Herzegovina; and a death certificate showing that his father had died in 1962. He argued that he had never visited Sweden and had lived since 1955 in Skopje. He also challenged the veracity and authenticity of the documents in file no. 2599 and denied that he had ever collaborated with or provided any information about any colleague to the State security services, let alone that any such collaboration had met the criteria specified in section 18 of the Lustration Act (see paragraph 24 below). In that connection, he submitted that none of the documents in the file had been signed by him. Lastly, he complained about the fact that the decision on the Commission’s website had included his father’s name, despite the fact that the Lustration Act made no provision for the release of such information. He argued that his reputation, dignity, personal information and integrity had been compromised. 11. In a hearing held in private on 29 January 2014, the Administrative Court dismissed the applicant’s claim. The court held that the Commission had correctly established the facts and applied the relevant law. The court stated: “[the Commission] established that there were documents in the State Archives created by the State security bodies confirming that [the applicant] had collaborated with State security bodies in a conscious, secret, organised and continuous manner and that he had obtained favours when being promoted, as set out in sections 14 and 18 of [the Lustration Act] ... The Commission correctly established that [the files in question] contained information provided by [the applicant], which had been used to restrict and violate the human rights and freedoms of other people on political and ideological grounds ... ” 12. As regards the applicant’s complaints of mistaken identity, the court stated: “... the Commission’s decision clearly established collaboration with security bodies by [the applicant], by determining his personal identification number, place of birth and the office that he had held.” 13. As to his arguments that the Commission had erred in finding “conscious, secret, organised and continuous collaboration” with State security bodies, the court held: “[the applicant] was entitled to obtain access to the documents attesting to his collaboration. In case of doubts about their veracity, he could have initiated proceedings before the competent court to prove their inaccuracy, before the impugned decision had been delivered. In addition, the court considers that the above State security service documents on [the applicant’s] secret collaboration were drawn up on the basis of the rules and regulations of those bodies.” 14. Lastly, the court stated: “The court made its decision at a hearing held in private because the Commission had correctly established the relevant facts [on the basis of written material] and [the applicant] had not submitted any evidence that led to different facts.” 15. On 7 March 2014 the applicant appealed to the Higher Administrative Court. He reiterated the complaints raised in his action in the Administrative Court and submitted that the latter court had not provided any reasoning regarding his complaint that the publication of the Commission’s decision on its website had violated his right to respect for his private and family life, his reputation and dignity. It had also disregarded his evidence that file no.6825 had not concerned him, but a person with the same name, which had led to facts being wrongly established. He stated that the court had also relied on evidence adduced by the Commission without analysing it in adversarial proceedings in the presence of the applicant or any other relevant witness or expert. He complained that the lower authorities had not explained why they had considered that he had collaborated with the security bodies in an intentional, secret, organised and continuous manner, as set out in the Lustration Act. He further complained about the lack of an oral hearing before the Administrative Court and argued that there had been no statutory provision allowing him to request such a hearing. Lastly, he contested the Administrative Court’s explanation about the possible legal avenues he could have used to challenge the veracity of the documents in file no. 2599. In that connection, he submitted that before 4 June 2015 he had not been aware of the existence of documents about his alleged secret collaboration with the security services. Furthermore, his arguments on that point should have been dealt with in the impugned proceedings. 16. On 12 June 2014 the Higher Administrative Court dismissed the applicant’s appeal and upheld the lower court’s decision. It found no grounds to depart from the facts as they had been established and the reasons given by the Commission and the Administrative Court. It stated: “The Fact Verification Commission only checks whether or not there was collaboration with the security services; there are no adversarial proceedings, the documents created and held by the [security services] are regarded as facts ...”