CASE OF LAZOROSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible;Violation of Art. 5-1-c+5-2;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1973 and lives in Kičevo. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. Between 15 October 2003 and 12 January 2004 the investigating judge was on sick leave. 14. 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. 15. 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. 16. 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. 17. 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”. 18. No proceedings were taken against the applicant. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. 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). 25. 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. 26. 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. 27. 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. 28. 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. 29. 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). 30. 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.