FIRST SECTION

DECISION

Application no . 55634/14 Lenče RUNTEVA against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 3 October 2017 as a Chamber composed of:

Linos-Alexandre Sicilianos, President, Aleš Pejchal, Krzysztof Wojtyczek, Ksenija Turković, Pauliine Koskelo, Tim Eicke, Jovan Ilievski, judges, and Abel Campos, Section Registrar ,

Having regard to the above application lodged on 31 July 2014,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Len č e Runteva, is a Macedonian national who was born in 1962 and lives in Å tip. She is represented before the Court by Mr T. Torov, a lawyer practising in Å tip.

2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

4. By a judgment of 23 April 2001, co nfirmed on appeal on 10 October 2001, the Ko č ani Court of First Instance (“the trial court”) convicted the applicant of a serious traffic offence and sentenced her to four years and six months ’ imprisonment. The period during which the applicant had been remanded in pre-trial detention (from 2 to 13 October 1999) was to be deducted from the custodial sentence.

5. On 20 January 2003 the applicant started serving the sentence.

2. Presidential pardon

6. On 28 July 2004 the President of the State granted pardons to several convicted people, exempting them entirely ( потполно ) or partially ( делумно ) from serving their respective prison sentences ( се ослободуваат од понатамошно извршување ) . The applicant obtained a reduction of the serving time by one year and six months. On 29 July 2004 the presidential pardon was published in the Official Gazette. The presidential pardon was granted on the occasion of a national public holiday.

3. Extraordinary mitigation of a sentence

7. On 14 January 2005 the applicant, represented by Mr T. Torov, lodged a request for extraordinary mitigation of her prison sentence ( вонредно ублажување на казната ), which the Supreme Court granted in a judgment of 1 February 2005. It found that the applicant was the only person who could care for her father, whose health had deteriorated after the death of her mother, which had occurred whilst the applicant was serving her sentence. According to the court, those were new circumstance which the lower courts could not have taken into account in determining the sentence. Relying on sections 399 and 401(6) of the Criminal Proceedings Act of 1997 (see paragraphs 20 and 22 below), it overturned the lower courts ’ judgments of 23 April and 10 October 2001 in respect of the sentence and reduced the prison term to three years and six months. The court reiterated that the period of time the applicant had spent in detention on remand was to be deducted from the total prison term. In its judgment, the court did not mention the presidential pardon of 29 July 2004.

8. On 10 March 2005 the judgment was served on the applicant ’ s representative.

4. The applicant ’ s conditional release

9. In the meantime, namely on 17 February 2005, the trial court accepted a recommendation made by the director of the detention facility (based on the applicant ’ s good behaviour) and ordered that the applicant be released on parole on 25 February 2005. Referring to the aforementioned presidential pardon, the trial court stated that “[the applicant ’ s sentence] is three years.” The trial court established that the period of conditional release ( условен отпуст ) would come to an end on 9 January 2006. It did not mention the Supreme Court ’ s judgment of 1 February 2005.

10. The applicant was released on parole 25 February 2005.

5. Compensation proceedings for unlawful detention

11. On an unspecified date in 2007, the applicant brought a civil action against the respondent State, claiming compensation for being allegedly unlawfully detained for 60 days due to an error or unlawful action by the State authorities. She also claimed compensation in respect of the period of her conditional release (between 25 February 2005 and 9 January 2006), during which she had been regarded as an offender. She argued that, as a consequence of the Supreme Court ’ s judgment ordering mitigation of sentence and the presidential pardon, the prison sentence had been reduced to two years excluding the time of her detention on remand. Accordingly, she should have been released some 60 days prior to the date of her release on parole.

12. In a judgment of 25 June 2010, the Skopje Court of First Instance dismissed the applicant ’ s compensation claim as ill-founded. The court stated the following:

“... On the basis of the [information] submitted by [the trial court], the court establishes that the prison sentence imposed on [the applicant] was three years and six months, taking into account the presidential pardon. That aside, the overall sentence, including [the applicant ’ s] conditional release that came to an end on 9 January 2006, was three years ... It is undisputed that [the applicant] was released from custody on 25 February 2005, as stated in the decision for her release on parole. Accordingly, she was not detained for longer than prescribed ... [The trial court] decision ordering [the applicant ’ s] conditional release took into consideration the presidential pardon, as is evident from the reasoning provided; however, when reducing the sentence, it gave no weight to it. [The applicant] did not spend a day longer in custody than she was sentenced to. She was supposed to serve the sentence until 9 January 2006, the date when her period of conditional release came to an end...

The provisions governing compensation for damage sustained do not apply in the circumstances of the (present) case because the conviction was not wrongful ... The reduction in the prison term following the presidential pardon and the [Supreme Court ’ s] judgment was based on grounds not related to [the applicant ’ s] guilt of the crime that she had committed. Only a person who has suffered damage due to a wrongful conviction is entitled to seek compensation for damage sustained. In the present case, [the applicant] was rightfully convicted ...”

13. The applicant challenged this judgment before the Skopje Court of Appeal. She reiterated that, given the extraordinary reduction in the prison term ordered by the Supreme Court and the presidential pardon, she should have been imprisoned for two years, further reduced by the period of her detention on remand. Any detention in excess of this period had therefore been unlawful. Accordingly, she was entitled to compensation in respect of non-pecuniary damage under section 530(1)3 of the Criminal Proceedings Act (see paragraph 23 below).

14. In its judgment of 9 February 2012, the Skopje Court of Appeal upheld the established facts and the reasoning provided by the lower court. It further stated that:

“... the reduction of a prison term on the basis of an extraordinary mitigation of sentence [by the Supreme Court] does not constitute grounds for compensation for damage sustained if a person has remained imprisoned for longer than the reduced prison term imposed by a competent court.

... this court considers that in the present case, the lower court having correctly established that [the applicant] had not been imprisoned a single day more than had been prescribed by the above judgments, the applicant has no right to claim compensation under [section 530 (1)2] of the Criminal Proceedings Act ...”

15. On 17 October 2013 the Supreme Court dismissed an appeal on points of law by the applicant and upheld the lower courts ’ judgments. The applicant was served with this judgment on 31 January 2014.

B. Relevant domestic law

1. Constitution of 1991

16. Article 84 § 1(9) of the Constitution provides that the President of the State can grant pardon in accordance with the legal provisions.

2. Pardon Act

17. Under section 1 of the Pardon Act of 1993, the President of the State may grant pardon to identified individuals in respect of criminal offences provided for by law. A request for pardon can be submitted by the convicted person or by the Ministry of Justice of its own motion (section 2(1)) after a judgment becomes final (section 6(1)).

3. Criminal Proceedings Act of 1997 (Official Gazette nos. 15/97; 44/02 and 74/04)

18. Section 112 of the Criminal Proceedings Act of 1997, as applicable at the relevant time, provided that judgments were delivered to parties either by way of oral pronouncement, if the parties were present at the hearing, or by serving them with a certified copy of the judgment if they were absent from the hearing.

19. Under section 125(2) of the Act, a final judgment became enforceable after being served on the parties provided there were no obstacles to its enforcement.

20. Sections 399-402 provided for an extraordinary mitigation of sentence as an extraordinary remedy that might be used against the penalty imposed by the lower courts. Under section 399, it might be granted on account of facts that had not existed before delivery of the final judgment or of facts that had existed at that time but of which the court had been unaware.

21. Under section 400(2), a request for mitigation of sentence did not suspend its enforcement.

22. The Supreme Court would dismiss the request if the statutory conditions for extraordinary mitigation of sentence were not satisfied. If it granted the request, the Supreme Court would adopt a judgment and overturn the final judgment in respect of the penalty (section 401(6)).

23. Section 530(1) 2 provided that a person was entitled to claim compensation if he or she had served a prison sentence but ‒ on the basis of a reopening of proceedings, a legality review request or a request for extraordinary review of a final judgment ‒ should have served a shorter prison term than the one already served. Under sub-paragraph 3, a person was entitled to claim compensation if he or she served a longer (prison) sentence due to an error or unlawful action by a (State) body.

COMPLAINTS

24. The applicant complained under Article 5 § 1 of the Convention that she had been imprisoned forty-seven days longer than the reduced prison term imposed by the Supreme Court, further commuted on account of the presidential pardon (between 9 January and 25 February 2005). For the same reasons, she had been unlawfully regarded as an offender during her release on parole.

25. Relying on Article 5 § 5, she complained about the domestic courts ’ judgments dismissing her compensation claim for the alleged unlawful imprisonment.

THE LAW

26. The applicant complains that her imprisonment between 9 January and 25 February 2005 and the subsequent period of her conditional release were unlawful. The Court considers that this complaint falls to be examined under Article 5 § 1 (a) of the Convention. The applicant also complains under Article 5 § 5 about the dismissal of her action in the compensation proceedings. Article 5 §§ 1 (a) and 5, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Article 5 § 1 (a) complaint

1. The parties ’ submissions

27. The Government submitted that pardon was a discretionary right of the President of the State which, in the present case, he had exercised in relation to the sentence imposed on the applicant by the final judgment of 2001. The applicant, who had been represented by a lawyer, had failed to notify the Supreme Court of the presidential pardon granted to her. Notwithstanding that failure, the presidential pardon had not played any role in the Supreme Court ’ s consideration of the question as to whether or not the applicant had fulfilled the statutory requirements for obtaining an extraordinary mitigation of her sentence because pardon and extraordinary mitigation of sentence were two separate, autonomous and independent legal instruments. Pardon could not apply to extraordinary mitigation of sentence. In any event, the applicant had been imprisoned for three years (including the period of her conditional release), which had corresponded to the sentence commuted following the presidential pardon. That had been also in line with the reduced sentence imposed by the Supreme Court in response to the applicant ’ s request for extraordinary mitigation of the sentence.

28. The applicant submitted that there existed no statutory provision that had required her to inform the Supreme Court about the presidential pardon. This being so, the respondent State should have put in place an effective system of exchange of information between State institutions. She further maintained that the initial sentence imposed by the final judgment of 2001 had been reversed by the Supreme Court. The presidential pardon should therefore have applied to the sentence passed by the Supreme Court. Accordingly, the total term of imprisonment that she should have served had been two years reduced by the length of time she had spent in detention on remand. Her continued imprisonment beyond that time had been unlawful. Similarly, she had unlawfully been considered as a prisoner between 25 February 2005 and 9 January 2006, that is to say during the period of her conditional release.

2. The Court ’ s assessment

29. Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. A period of detention is, in principle, “lawful” if it is based on a court order. In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (s ee Mooren v. Germany [GC], no. 11364/03 , §§ 72-74, 9 July 2009). Whereas the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see Saadi v. the United Kingdom [GC], no. 13229/03, § 68, ECHR 2008, and Plesó v. Hungary , no. 41242/08, § 57, 2 October 2012), one general principle established in the Court ’ s case-law is that detention will be “arbitrary” in cases where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Mooren , cited above, § 78 ).

30. The Court is in no doubt, and it was common ground between the parties, that the applicant was convicted in accordance with a procedure prescribed by law by a competent court with in the meaning of Article 5 § 1 (a) of the Convention. By a final judgment of 23 April 2001, she had been sentenced to four years and six months ’ imprisonment from which the period spent in pre-trial detention (eleven days) was to be deducted. The penalty and its execution were subject to several remedial actions, each based on different legal grounds, as explained below.

31. The applicant started serving the sentence on 20 January 2003. While in detention, on 29 July 2004 she obtained a presidential pardon that reduced her serving time by eighteen months. The Court notes that the pardon did not reduce the sentence itself, but it gave the applicant partial exemption from serving that sentence on the basis of the relevant circumstances at the time. That was in compliance with section 6 of the Pardon Act, according to which pardon may be sought and accordingly granted after the relevant court judgment becomes final (see paragraph 6 above). On the basis of the presidential pardon, the applicant was to be imprisoned for three years excluding the time she had spent in pre-trial detention.

32. On 17 February 2005 the trial court ordered that the applicant be released on parole due to her good behav iour in custody. On 25 February 2005 the applicant was released from prison. Referring to the presidential pardon, the trial court specified that the period of conditional release would come to an end on 9 January 2006 (see paragraph 9 above).

33. The Court observes that the applicant was therefore imprisoned between 20 January 2003 and 25 February 2005, namely for two years one month and five days. It will confine its examination of the complaints under this head to the applicant ’ s detention in custody, given that the period during which the applicant was released on parole (25 February 2005 to 9 January 2006) cannot be regarded as a “deprivation of liberty” within the meaning of Article 5 of the Convention.

34. The Court considers that the entire period of the applicant ’ s imprisonment, including the contested period between 9 January and 25 February 2005, corresponded to the penalty defined in the trial court ’ s judgment of 2001, the serving time of which was later reduced on account of the presidential pardon. At the time, that was the only final and enforceable judgment stipulating the penalty imposed in relation to the applicant ’ s conviction for a serious traffi c offence. It is true that on 1 February 2005 the Supreme Court granted a request by the applicant for extraordinary mitigation of the sentence, reversing the final judgment of 2001 in respect of the penalty and reducing the prison term to three years and six months excluding the time the applicant had been remanded in pre-trial detention. The Court cannot accept the applicant ’ s argument that the presidential pardon of 28 July 2004 should have applied to the Supreme Court ’ s judgment, as a future and unforeseeable measure, because the presidential pardon pre-dated that judgment and was granted in respect of the final judgment of 2001, as the only final and valid judgment specifying the custodial sentence at the time. To hold otherwise would mean that the applicant should have been released, as she argued, on 9 January 2005, namely before 1 February 2005, the date when the Supreme Court decided her request for extraordinary mitigation of the sentence.

35. In the light of the above finding that the entire period under consideration (see paragraph above) was based on a court order, the Court finds that the applicant ’ s deprivation of liberty was “lawful” within the meaning of Article 5 § 1 (a) of the Convention.

36. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Article 5 § 5 complaint

1. The parties ’ submissions

37. The Government maintained that the applicant ’ s imprisonment had been executed in conformity with the substantive and procedural rules of national law and with the Convention. There had been no error or unlawful action by a State authority, as alleged by the applicant. Accordingly, the domestic courts had correctly dismissed the applicant ’ s claim for compensation.

38. The applicant reiterated her complaints that there had been a violation of her rights under this head

2. The Court ’ s assessment

39. The Court reiterates that Article 5 § 5 has been complied with where there is a possibility of applying for compensation in respect of a deprivation of liberty that was effected in conditions contrary to paragraphs 1, 3 or 4 (see Stoichkov v. Bulgaria , no. 9808/02, § 72, 24 March 2005). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see Temchenko v. Ukraine , no. 30579/10 , § 129, 16 July 2015 ).

40. In the present case, the Court notes that the applicant ’ s compensation claim was examined and was dismissed by courts at two levels of jurisdiction. It does not consider that the outcome of the compensation proceedings was arbitrary or manifestly unreasonable. In these circumstances, and bearing in mind the Court ’ s finding regarding the applicant ’ s complaint under Article 5 § 1 (see paragraph 36 above), it concludes that Article 5 § 5 is not applicable in the present case.

41. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 October 2017 .

Abel Campos Linos-Alexandre Sicilianos Registrar President