FIFTH SECTION

DECISION

Applications nos. 77805/14 and 77807/14 Nenad SHIPOVIKJ against North Macedonia and Miroslav SHIPOVIKJ against North Macedonia

The European Court of Human Rights (Fifth Section), sitting on 9 March 2021 as a Chamber composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Stéphanie Mourou-Vikström, Lətif Hüseynov, Jovan Ilievski, Arnfinn Bårdsen, Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar ,

Having regard to the above applications lodged on 10 December 2014 and 11 December 2014 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant in the first case, Mr Nenad Shipovikj (“the first applicant”), is a Macedonian/citizen of the Republic of North Macedonia, who was born in 1962 and lives in Skopje. He was represented before the Court by Mr D. Kadiev, a lawyer practising in Skopje.

2 . The applicant in the second case, Mr Miroslav Shipovikj (“the second applicant”), is a Macedonian/citizen of the Republic of North Macedonia, who was born in 1955 and lives in Skopje. He was represented before the Court by Mr S. Zikov, a lawyer practising in Skopje.

3 . The Government of North Macedonia (“the Government”) were represented by their Agent, Ms D. Djonova.

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . The applicants are brothers. The second applicant was the chairman of Centar Municipal Council at the time.

6 . On 10 October 2013 an investigating judge of the Skopje Court of First Instance ( Основен суд Скопје – “the trial court”) opened an investigation against the applicants and several other individuals on suspicion of abuse of office ( злоупотреба на службената положба и овластување ).

7 . The first applicant was arrested on 9 October 2013. The following day he was heard by the investigating judge, who ordered that he be held in pre-trial detention for thirty days. The order was based on all three grounds specified in section 199(1) of the Criminal Procedure Act (Official Gazette no. 15/2005 – “the Act”), namely a risk of absconding, interfering with the investigation and reoffending. The judge referred to the severity of the potential sentence, the possibility of the first applicant influencing witnesses, and the fact that he owned his own company and could abuse his position to acquire unlawful pecuniary gain. He did not appeal against that decision.

8 . On 8 November 2013 a three-judge panel of the trial court set up under section 22(6) of the Act (see paragraph 31 below), sitting in private ( нејавна седница ), ordered a thirty-day extension of the first applicant ’ s pre-trial detention on all three grounds specified under the Act. The panel referred to the seriousness of the offence, the severity of the likely penalty and the possibility of him influencing a witness. It also reiterated the earlier reasons related to the risk of reoffending.

9 . The first applicant appealed arguing that he had strong family ties with Skopje and seldom travelled abroad.

10 . On 30 November 2013 the Skopje Court of Appeal ( Апелационен суд Скопје, “the Court of Appeal”), sitting in private, dismissed the appeals lodged by several suspects, including the first applicant.

11 . On 6 December 2013 a three-judge panel, sitting in private, ordered another thirty-day extension of the first applicant ’ s detention on the grounds that he might abscond. It referred to the seriousness of the offence and the severity of the likely penalty.

12 . On 19 December 2013 the Court of Appeal, sitting in private, upheld the prosecutor ’ s appeal in part and extended the grounds for detention of several suspects (including the first applicant) so that they include the risk of interfering with the investigation, given that there were several investigative measures pending, including the examination of witnesses. It upheld the panel ’ s findings in the remaining part and reiterated the reasons related to the risk of absconding.

13 . On 10 October 2013 the investigating judge ordered that the second applicant should be detained for thirty days, starting from the date of his arrest. The order was based on section 199(1)(1) and (2) of the Act, namely a risk of absconding and interfering with the investigation. As to the risk of absconding, the judge referred to the fact that he had been unavailable to the authorities. The police had informed the court that he had been staying for a prolonged period in the United States. The judge further held that there was a risk of him influencing witnesses, who were yet to be examined.

14 . The second applicant was arrested on 15 October 2013 at Vienna Airport in Austria while he was on his way back to the respondent State and placed in detention pending extradition. He was extradited on 22 November 2013 and detained in Skopje Prison. On 26 November 2013 he was examined by the investigating judge.

15 . On 20 December 2013 a three-judge panel of the trial court, sitting in private, ordered a thirty-day extension of the second applicant ’ s pre-trial detention on the same two grounds as the initial detention order. It referred to the seriousness of the offence, the severity of the penalty and the possibility of him interfering with the ongoing investigation.

16 . The second applicant appealed, maintaining that he had no intention of fleeing. He had only learned of the criminal proceedings against him after he had already left for the United States, where he had been visiting his son, who had been recovering from surgery. He had immediately made arrangements to return. He had been arrested at Vienna Airport while trying to board a plane to Skopje, even though he had notified the trial court and the media of his planned return. There was no risk of him interfering with the investigation as the only outstanding measures had been completed soon after the detention decision.

17 . On 8 January 2014 the Court of Appeal, sitting in private, dismissed the second applicant ’ s appeal referring to the reasons provided by the panel.

18 . On 2 January 2014 the applicants and ten other individuals appeared before the trial court and were indicted with abuse of office in relation to financial transactions conducted between 2008 and 2012 involving company M. (of which the second applicant had been chairman of the executive board), company S. (of which the first applicant had been manager) and other companies. It was alleged that as a result the State was owed 17 million denars (MKD) (the equivalent of approximately EUR 276,000 euros (EUR) at the relevant time) in unpaid tax, while company M. had acquired unlawful pecuniary gain in the amount of MKD 64 million (the equivalent of approximately EUR 1,000,000 at the relevant time).

19 . By separate decisions of 3 and 31 January 2014, a three-judge panel, sitting in private, issued two separate orders each providing for a thirty-day extension of the pre-trial detention of the applicants on the grounds that they might abscond. It referred to the seriousness of the offence and the severity of the likely penalty.

20 . On 13 and 16 January 2014 respectively the applicants lodged applications for release on bail offering as a guarantee immovable property valued at an estimated EUR 139,888 (the first applicant) and EUR 254,340 (the second applicant). The applicants ’ bail applications were dismissed on 13 February 2014 by two separate decisions of a three-judge panel, sitting in private. The panel found that the guarantees were not sufficient to ensure their presence during the proceedings, given the seriousness of the charges, the potential penalty, the value of the alleged damage, and the complexity of the proceedings.

21 . Between 3 March and 2 May 2014 a three-judge panel, sitting in private, issued three separate orders each providing for a thirty-day extension of the applicants ’ detention because of the risk that they might flee. All three extension orders referred to the seriousness of the offence and the severity of the likely penalty.

22 . The applicants appealed, complaining that the panel had failed to provide any specific reason to justify their continued detention. The Court of Appeal, sitting in private, dismissed the applicants ’ appeals by decisions dated 27 March, 28 April and 21 May 2014. It considered that sufficient reasons for the applicants ’ continued detention had been given and that the relevant circumstances remained unchanged.

23 . In May 2014 both applicants applied for release on bail, offering as a guarantee immovable property owned by them, their family or third parties. The first applicant offered property valued at an estimated EUR 212,585, while the second applicant offered property valued at an estimated EUR 370,627. Both applicants later withdrew their applications as some of the third parties had withdrawn their consent after the trial court had informed them of the possibility, based on section 194(4) of the Act, that the property in question could be used for the settlement of any civil award made in the criminal proceedings against the applicants.

24 . In the meantime, the trial in the applicants ’ case began. Between 27 February and 15 May 2014 ten hearings were held before the trial court in the presence of the applicants and their lawyers. At some of those hearings the defendants requested a review of their detention orders. The trial court (sitting as a five-judge panel) rejected the initial requests at the hearing held on 3 April 2014. At the hearing held on 29 April 2014 the applicants again asked to be released. No information was provided to the Court as to the trial court ’ s decision in this regard.

25 . At the hearing held on 23 May 2014 the trial court set aside the applicants ’ detention orders and placed them under house arrest. The panel held that there was still a risk that they might abscond, but considered that their presence could be ensured with a less severe measure.

26 . At the hearings held on 27 May, 3 and 10 June 2014, the applicants and their lawyers did not challenge the trial court ’ s order for their house arrest. At the hearing held on 17 June 2014 the applicants sought that the trial court reviewed the reasons for their house arrest. On that occasion, the trial court lifted the house arrest orders and ordered the applicants ’ release.

27 . On 11 January 2018 the trial court dismissed the charges ( се одбива обвинението ) against all the accused as the prosecutor withdrew the indictment ( се откажал од обвинението ). That judgment became final on 21 February 2018.

28 . On 31 October 2018 the applicants sought, under the relevant provisions of the Criminal Proceedings Act (paragraphs 33 - 35 below) and the Obligations Act, compensation for non-pecuniary loss sustained as a result of their detention on remand. In support, they referred to the factual account and the legal remedies described in paragraphs 7 - 26 above.

29 . By decisions of 11 July 2019 and 3 February 2020 respectively, the trial court and the Court of Appeal described the first and the second applicants ’ arrest and the extension of their pre-trial detention, noted that the charges against them had been finally dismissed and ruled that their deprivation of liberty had been unjust ( неоснован ) and had violated, inter alia , their right to liberty. They also awarded them just satisfaction ( справедлив паричен надоместок , within the meaning of the Obligations Act, paragraph 38 below) for the mental suffering sustained on that account. The trial court initially set the joint award at MKD 2,700,000 (equivalent to approximately EUR 44,000) plus interest. Following an appeal by the Solicitor General, the Court of Appeal reduced the joint award to MKD 2,160,000 (EUR 35,000) plus interest. In this connection the courts stated that the award “concern[ed] all harmful non-pecuniary effects for the victim[s] and [its amount wa]s to be determined on the basis of all circumstances of the case , such as the claimants ’ reputation in the society; the public ’ s reaction, the gravity and nature of the imputed crime; the length of the detention and all other circumstances that affect the nature, gravity and duration of the mental suffering”. In March 2020 the applicants received payment of the award as determined by the Court of Appeal.

30 . On 17 March 2020 the Solicitor General lodged an appeal of points of law with the Supreme Court. The Court has not been informed about any relevant subsequent developments.

31 . A detailed description of the relevant domestic law is set out in the Court ’ s judgment in the case of Ramkovski v. the former Yugoslav Republic of Macedonia (no. 33566/11 , §§ 33-38, 8 February 2018).

32 . Under section 200(8) the prosecutor and the defendant ’ s lawyer could request to be notified of the panel ’ s session and ask to present their submissions orally.

33 . Section 582 of the Act, which concerned compensation of damages for unjust deprivation of liberty ( надомест на штета за лица неосновано лишени од слобода ) provided as follows:

“1 . An individual shall be entitled to claim compensation in the following cases:

(1) if he was detained and criminal proceedings were not instituted against him or the criminal proceedings have been terminated by a final decision; if he has been acquitted by a final judgment; or if the charges have been dismissed;

(2) if he is serving a custodial sentence, but following a reopening of the criminal proceedings, request for a review of legality or request for an extraordinary review of the final judgment he has been given a shorter sentence than the sentence already served; if he has been given a non-custodial sentence; or if he has been convicted, but no sentence has been given ( ослободено од казната );

(3) if, because of an error or unlawful act by a public authority, he has been unjustly or unlawfully deprived of his liberty or held too long in detention or in an institution for serving a sentence;

(4) if he has been detained for longer than the sentence given at conviction ” .

34 . Under section 579(1) and (2) of the Act, a compensation claim became time-barred three years after the acquittal or decision dismissing the charges became final. Before lodging a compensation claim with the court, the party concerned had to lodge a claim with the Ministry of Justice for settlement of the case. If the Ministry dismissed the claim or failed to decide within three months of the date the claim was brought, the party concerned could claim compensation in the court of competent jurisdiction (section 580(1)).

35 . Sections 553, 550 and 551 of the Criminal Procedure Act 2010 (which entered into force on 26 November 2010 and became applicable as of 1 December 2013) are essentially identical to the relevant provisions contained within the Criminal Procedure Act 2005 (section 582, 579 and 580).

36 . Under section 322(1), a judgment becomes final when it cannot be challenged by means of an appeal.

37 . Section 374 provides that an appeal on points of law does not suspend the execution of a final judgment.

38 . Section 189 of the Obligations Act provides, inter alia , for monetary compensation of non-pecuniary loss for physical and mental pain and violation of reputation and personal rights and freedoms.

39 . The Government submitted examples of domestic practice where the domestic courts in civil proceedings instituted under the Obligations Act ( Закон за облигационите односи ) and the relevant provisions for compensation for unjust detention in the Criminal Procedure Act allowed compensation claims for unjust deprivation of liberty in respect of pre-trial detention (including house arrest) when the criminal proceedings had been terminated, the charges had been dismissed or the claimants had been acquitted, as well as in cases of deprivation of liberty following a conviction which had been quashed in subsequent proceedings ( МАЛВП ‑ 365/2016; МАЛВП-366/2016;МАЛВП.бр.1230/16; ГЖ ‑ 2051/17; ГЖ-1845/17; ГЖ-3024/17; ГЖ-4519/17; ГЖ-680/17 ).

COMPLAINTS

40 . The applicants complained that the court orders extending their pre-trial detention and the proceedings for review of those orders had violated their rights under Article 5 §§ 3 and 4 of the Convention.

THE LAW

41 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).

42 . The applicants complained under Article 5 § 3 of the Convention that the domestic courts had not given concrete and sufficient reasons for their detention, and that they had had no effective possibility of being released on bail. They further complained under Article 5 § 4 of the Convention that there had been no oral hearing in the proceedings for the review of their detention before either the panel or the Court of Appeal. Article 5 §§ 3 and 4 of the Convention read as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

43 . In their observations of 18 April 2018, the Government submitted that the applicants had not exhausted domestic remedies, as they had not brought a civil claim for compensation for unjust deprivation of liberty. The Government referred to the practice described at paragraph 39 above, maintaining that such claims were an effective remedy which had become available to the applicants following the first-instance judgment dismissing the charges (paragraph 27 above).

44 . The Government further argued that the applicants had not exhausted domestic remedies because the first applicant had not appealed against the first detention order of 10 October 2013 and both applicants had failed to challenge the detention orders issued in January 2014. They further argued that the applicants ’ complaint under Article 5 § 4 was inadmissible for non-exhaustion of domestic remedies for the following reasons: (i) their lawyers had failed to use the opportunity provided under section 200(8) of the Act (see paragraph 32 above), and (ii) even though the applicants had attended the trial hearings, they had failed to ask for a review of their detention prior to the hearing held on 23 May 2014.

45 . In their reply to the Government ’ s observations submitted on 14 June 2018, the applicants confirmed that the first-instance judgment dismissing the charges against them had become final on 21 February 2018. They submitted that they intended to claim compensation for pecuniary and non-pecuniary damage before the domestic courts, which was why they had not submitted just-satisfaction claims to the Court. By letter of 22 August 2020 the applicants informed the Court of the compensation proceedings they had brought (see paragraphs 28-30 above) and confirmed that in March 2020 they were paid the sum awarded to them in those proceedings.

46 . The Court does not consider it necessary to deal with all the Government ’ s objections, as the applications are in any event inadmissible for the reasons set out below.

(a) As regards the complaints under Article 5 § 3

47 . The Court will examine the “victim status” of the applicants in the context of the outcome of the above compensation proceedings (see paragraphs 28 - 30 above) as it concerns a matter which goes to the Court ’ s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016 , and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 93, 27 June 2017).

48 . As the Court has repeatedly held, a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for the breach of the Convention. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application. As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Selami and Others v. the former Yugoslav Republic of Macedonia , no. 78241/13 , §§ 95 and 96, 1 March 2018, and the references cited therein).

49 . In the present case, the Court notes at the outset that it has not been informed of any developments since March 2020, when the Solicitor General appealed on points of law against the judgment of the Court of Appeal awarding compensation to the applicants. Under the domestic law, that judgment can no longer be challenged by means of an ordinary appeal and the appeal on points of law by the Solicitor General cannot suspend its enforcement (see paragraphs 36 and 37 above). In the latter context, the Court notes that in March 2020 the applicants were paid the sum awarded to them by the judgment of the Court of Appeal (see paragraph 45 above). In these circumstances and in the absence of any information that the Court of Appeal ’ s judgment was quashed by the Supreme Court, the Court will proceed on the basis that the judgment of the Court of Appeal of 3 February 2020 is final and enforced.

50 . The Court further observes that the applicants ’ compensation claim was based on section 582 of the Criminal Procedure Act 2005 (corresponding to section 553 of the Criminal Procedure Act 2010), which provides for monetary compensation for deprivation of liberty rendered unjust under the circumstances specified therein (see paragraph 33 above). In the particular circumstances of the present case, the applicants ’ entitlement to compensation arose when the dismissal of the criminal charges against them became final. They availed themselves of that possibility and , relying on the relevant facts and the remedies used regarding their detention (see paragraph 28 above), they claimed that their deprivation of liberty had been unjust (see, conversely, Shalya v. Russia [Committee], no. 27335/13, §§ 8 and 21, 13 November 2014, in which the applicant, invoking his “right to rehabilitation”, sought compensation for loss of salary and for expenses incurred in the criminal proceedings which resulted with his acquittal). In awarding compensation the domestic courts, at two instances, held that the applicants ’ pre-trial detention had been unjust ( неоснован ) and in violation of their right to liberty (see, conversely, Shkarupa v. Russia , no. 36461/05, §§ 19 and 77 , 15 January 2015; Lyubushkin v. Russia , no. 6277/06, § 51, 22 October 2015 , in which the domestic courts ’ findings in the “rehabilitation proceedings” were confined to the unlawfulness of the applicants ’ detention). It is true that the formal legal basis of their assessment was the fact that the charges against the applicants had ultimately been dismissed, a circumstance which, under the above provisions of the Criminal Proceedings Act, retroactively rendered their pre-trial detention unjust (see paragraph 29 above). However, the fact that the findings and the award made by the civil courts were a direct result of the applicants ’ claim under the above provisions and did not rely on the issues complained of before the Court, cannot be decisive for assessing the applicants ’ victim status under Article 34 of the Convention (see, mutatis mutandis , Staykov v. Bulgaria , no. 49438/99, §§ 58 and 89, 12 October 2006). The Court ’ s concern is rather whether the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention.

51 . In the Court ’ s view, the findings of the domestic courts contain a clear acknowledgment that the applicants ’ pre-trial detention was unjust and, accordingly, in violation of their right to liberty under Article 5 of the Convention (see paragraphs 29 and 50 above, see, conversely, Shalya , cited above , and Lyubushkin , cited above §§ 30-32). In doing so they described the circumstances surrounding the applicants ’ arrest and the extension of their pre-trial detention (see, conversely, Bilal Akyıldız v. Turkey , no. 36897/07, §§ 24 and 41 , 15 September 2020 , in which the domestic courts merely relied on the applicant ’ s acquittal) . That acknowledgment concerned the entire length of the applicants ’ deprivation of liberty, which does not necessarily correspond to the period of detention that is the subject of the applicants ’ complaints to the Court. It is true that, as noted above, it was based on the fact that the charges against the applicants had ultimately been dismissed. However, the Court considers that the above acknowledgement has to be seen in context and together with the arguments that the courts gave regarding the scope of the compensation awarded to the applicants. In this connection it cannot but note the comprehensive nature of that award in that it concerned “all harmful non-pecuniary effects” for the applicants and that it took into account “all circumstances of the case” (see, similarly, Dimo Dimov and Others v. Bulgaria , no. 30044/10, § 54, 7 July 2020). Accordingly, the award made to the applicants under the above provisions of the Criminal Proceedings Act as a result of the dismissal of the charges against them is indissociable from any compensation they might have been entitled to as a consequence of their deprivation of liberty being unjustified and, accordingly, contrary to Article 5 § 3 of the Convention (see, mutatis mutandis , N.C. v. Italy [GC], no. 24952/94, § 57, ECHR 2002 ‑ X) , as alleged before the Court (see, conversely, Bilal Akyıldız , cited above, § 34 , in which the applicant complained before the Court that he had been unlawfully deprived of his liberty) . It is therefore reasonable to consider that the acknowledgement on which the compensation award was based encompassed the applicants ’ grievances regarding all circumstances rendering their detention unjustified.

52 . As to the amount of compensation awarded to the applicants on account of their unjust detention, the Court notes that by its judgment of 3 February 2020 the Court of Appeal set the joint award at approximately EUR 35,000.

53 . Where, as in the present case, the victim status is linked with the monetary redress afforded at domestic level, the Court ’ s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, Selami and Others , cited above, § 102). In the instant case, having regard to the Court ’ s awards in similar cases (see Ramkovski , cited above, § 89 and Miladinov and Others v. the former Yugoslav Republic of Macedonia , nos. 46398/09 and 2 others, § 84, 24 April 2014) , the Court finds that the amount of compensation awarded by the domestic courts is to be considered sufficient redress in the light of the standards set by the Court.

54 . The Court therefore concludes that the applicants can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violations under this head.

55 . It follows that this part of the applications is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 thereof.

(b) As regards the complaint under Article 5 § 4

56 . The Court reiterates that, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter “within a period of six months from the date on which the final decision was taken”. Even though no plea of inadmissibility concerning compliance with the six-month rule was made by the Government in their observations, it is not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect (see, for instance, Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 138, 20 March 2018).

57 . In the present case, the Court notes that the applicants ’ appeals against their continued detention were dismissed by the Court of Appeal on 30 November 2013, 8 January 2014, 27 March 2014, 28 April 2014 and 21 May 2014 respectively. At the trial hearing held on 23 May 2014, the adjudicating panel replaced the applicants ’ detention with house arrest. The applicants did not appeal against that decision (see paragraphs 25 and 26 above). As the applicants ’ complaints under Article 5 § 4 were submitted to the Court on 10 and 11 December 2014 and seeing that the compensation proceedings (see paragraphs 28-30 above) did not concern the alleged lack of public hearings, a specific procedural deficiency in the review proceedings regarding the applicants ’ detention (see, Dimo Dimov and Others , cited above, §§ 58 and 62), it follows that these complaints were lodged outside the six-month time-limit and should be rejected as being out of time, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 1 April 2021 .

Victor Soloveytchik Síofra O ’ Leary Registrar President