CASE OF VASILKOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
5. The applicants were born between 1947 and 1985 and live in different cities in the former Yugoslav Republic of Macedonia. 6. They were toll collectors, controllers or senior staff (инкасанти на наплатна рампа или раководители) in a public roads enterprise. 7. The applicants were detained in several police stations in Skopje, some on 18 and some on 24 November 2007 on suspicion of abuse of office, namely that they had acted as an organised group and misappropriated over 5 million euros (EUR) from toll charges collected between April and November 2007. An individual report was drawn up for the detention of each applicant. 8. A group of applicants were brought before an investigating judge of the Skopje Court of First Instance (“the trial court”) on 19 November 2007, and the remainder on 25 November. By two separate decisions of 20 and 26 November 2007 respectively, after having heard oral evidence from the applicants, the investigating judge started the investigation and remanded them in custody. The orders were based on all the grounds specified in section 199 of the Criminal Proceedings Act (“the Act”, see paragraph 32 below), namely a risk of absconding and reoffending, and of interference with the investigation. The judge relied on the gravity of the charges and the potential penalty and the fact that the applicants had acted as a well organised group. 9. Nine applicants and other co-accused appealed against the detention order, requesting its replacement by a more lenient measure. The appellants relied on their family situation in the respondent State, the absence of a previous criminal record, the fact that some of them had appeared voluntarily in police stations and the failure of the investigating judge to give concrete reasons justifying the detention of each of them separately. A three-judge panel of the trial court (“the panel”), set up under section 22 § 6 of the Act, dismissed appeals submitted by two applicants. No evidence was produced that the panel decided the remaining appeals. 10. On 18 and 21 December 2007 respectively, the panel extended the applicants' detention for thirty days on all three counts specified under section 199 of the Act. The risk of absconding was justified by the gravity of the charges, the potential penalty and the fact that ten applicants had no possessions and no family in the respondent State. Eighteen applicants appealed, alleging lack of reasons. Their requests for a more lenient measure were supported with evidence about their poor health, copies of their passports and certificates attesting to their possessions in the respondent State. Some of them also requested release on bail. 11. On 31 December 2007 and 4 January 2008 respectively, the Skopje Court of Appeal dismissed the appeals and confirmed the orders. Only in respect of Mr Z. Pankovski, who produced the original copy of his employer's decision dismissing him from work, did the court exclude “the possibility of reoffending” from the list of grounds for his detention. It did not admit in evidence the uncertified copies of the dismissal decisions submitted by the other appellants. As to the remainder, it stated inter alia: “... circumstances related to the type and nature of the criminal offence for which the investigation has started against the accused, the potential penalty prescribed for the offence, as well as the personal circumstances of the accused, taken as a whole, suggest that there is a real risk of flight if they are released at this stage of the proceedings ... a reasonable risk that they may interfere with the investigation, as well as grounds to reoffend ... it is this court's view that there are no statutory grounds at this stage of the proceedings to replace custody with a more lenient measure that would guarantee that the accused would appear for trial ...” 12. The investigation was subsequently extended and involved, in total, seventy-two accused. 13. On 16 and 21 January 2008 respectively, the panel extended the applicants' pre-trial detention for thirty days, relying on all the grounds specified in section 199 of the Act, namely the risk of absconding and reoffending, and of interference with the investigation. Sixteen applicants appealed against these orders, seeking release. 14. With decisions of 28 January and 1 February 2008 respectively, the Skopje Court of Appeal ruled partly in favour of those applicants who appealed and presented originals or certified copies of the employer's decisions dismissing them from work. “The possibility of them reoffending” was no longer relied on as a ground for their continued detention. Furthermore, of its own motion and relying on section 397 of the Act (see paragraph 34 below), the court excluded in respect of all the accused included in the panel's decision of 21 January 2008, “the possibility of them interfering with the investigation” from the list of grounds for their detention. In so doing it reasoned that the accused could not interfere with the examination of protected witnesses and the viewing of a DVD, which were the only remaining investigative measures. The court confirmed the panel's concern about the risk of flight, however, relying on the gravity of the charges and the potential penalty. 15. On 15 February 2008 the public prosecutor lodged an indictment against all the accused, including the applicants. On the same day, the panel partly upheld the public prosecutor's request and extended the applicants' detention, but only on account of the risk of them absconding. In this connection it stated: “... the detention in prison is justified given the fact that there is a real risk of flight in view of the gravity and nature of the offences with which the accused are charged, and the potential penalty ...” 16. That decision was challenged by eight accused, including five applicants. They alleged that the panel had not given sufficient reasons to substantiate the risk of them absconding, given their family situation, their state of health, the absence of any previous criminal record and the fact that some of them had already had their passports seized. 17. On 6 March 2008 the Skopje Court of Appeal confirmed the panel's decision, stating that the risk of flight was substantiated by the gravity of the charges, the potential penalty and the way in which the offence had been committed. 18. By individual decisions rendered between 7 March and 1 April 2008, Mr Mehmed Asani and Mr Mitre Kirovski were released on bail. Ms Lenka Jovanovska, and Ms Slavjanka Angelova, were also released on condition that they appeared in court on a regular basis. These decisions were given in response to separate requests from these applicants for the detention order to be replaced by a more lenient measure. 19. On 15 March 2008 the panel ordered a thirty-day extension of the pre-trial detention of the remaining applicants. “The risk of them absconding” was once again based, in respect of all of them, on the gravity of the charges and the potential penalty. Four accused appealed against that decision, including two applicants who argued that the panel had not given specific reasons to substantiate the risk of them absconding. They submitted that they had not gone into hiding; their identity was known and they had appeared in court regularly. The Skopje Court of Appeal dismissed those arguments, holding that the risk of flight lay in the nature of the offence, the gravity of the charges and the potential penalty. 20. On 7 April 2008 the trial started. Given the high number of accused, the trial court decided to hold hearings outside the court building. After taking oral evidence from the applicants, on 15 April 2008 the trial court accepted the proposal of the public prosecutor and replaced the order for prison custody with an order for house arrest in respect of all remaining applicants, except Mr Nikola Vasilkoski, Mr Ljoki Mevaip, Mr Agim Stafai, Mr Dragan Trickovski and Mr Goran Nautliev, who remained in prison. In taking that decision the court relied on section 198 (2) of the Act (see paragraph 31 below), under which prison custody should be as brief as possible. The police were also ordered to supervise compliance with the house arrest. For the same reasons as in earlier decisions, the detention in respect of the remaining applicants was ordered on account of the risk of them absconding. 21. It would appear that only Mr Agim Stafai appealed against that decision. On 8 May 2008 his appeal was dismissed with the explanation that the panel had given sufficient reasons for extending his detention, namely that the gravity of the charges and the potential penalty pointed to a risk of him absconding. 22. On 15 May 2008 the panel extended the detention of the remaining applicants for the same reasons as before. On 22 May 2008, of its own motion, the panel substituted the order for detention in prison with an order for house arrest in respect of the five applicants mentioned in paragraph 20 above. 23. After that date, the house arrest of the remaining applicants was extended on several occasions. The extension was grounded on their potential to abscond in view, once more, of the gravity of the charges and the potential penalty. 24. In a decision of 10 October 2008, the panel extended the house arrest for the following reasons: “... the criminal proceedings are about to end ... for the sake of expediency it is considered that the risk of flight still persists in view of the gravity of the charges, the potential penalty and the number of accused, suggesting the need to extend the house arrest as the most lenient means of securing attendance at the trial ...” 25. In decisions of 11 and 17 November 2008 respectively, the panel gave the same reasons for extending the house arrest of the remaining applicants. For failure to comply with the house arrest order, Mr Nikola Vasilkoski and Mr Goran Nautliev were ordered to be sent back to prison. 26. On 28 November 2008 the trial court found the applicants guilty and imposed a prison sentence in respect of six applicants and a suspended sentence in respect of the others. As the trial had ended and the applicants had a permanent residence and family in the respondent State, the court also ordered their release, considering that there was no risk of them absconding. 27. At a public hearing held on 30 November and 1 December 2009, the Skopje Court of Appeal quashed the trial court's decision and referred the case for fresh consideration. It would appear that the proceedings are pending at the trial level. 28. During the proceedings, the applicants made numerous unsuccessful requests for their detention in prison to be replaced by a more lenient measure, or sought their release on bail. 29. Section 22 § 6 of the Criminal Proceedings Act of February 2005 provides for a three-judge panel of the trial court to rule, inter alia, on appeals against decisions of the investigating judge. 30. The Act specifies the measures which the court may issue in order to secure the attendance of an accused at a trial (sections 185-199). 31. Under section 198 § 2 of the Act detention in prison should be as brief as possible. 32. Under section 199 § 1 (1-3) of the Act detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding, interference with the investigation or reoffending. 33. Under section 200 §§ 1 and 6 of the Act an investigating judge has jurisdiction to order pre-trial detention. The person concerned may appeal before the panel. 34. Section 205 §§ 2 and 6 of the Act provides for the panel set up under section 22 § 6 to extend the detention at the request of the investigating judge or the public prosecutor. The extension order may be challenged before the court above. 35. Under section 397 of the Act, if the second-instance court considers grounds for an appeal applicable to any co-accused who did not lodge a formal appeal, it may, of its own motion, proceed as if the appeal had been lodged by the co-accused concerned (the beneficium cohaesionis rule).