Published on 27 September 2021

FIFTH SECTION

Application no. 26853/19 Sasho MIJALKOV against North Macedonia lodged on 17 May 2019 communicated on 7 September 2021

SUBJECT MATTER OF THE CASE

The applicant is the former director of the Counterintelligence Agency. He is subject of several criminal proceedings (abuse of office, criminal conspiracy, elections-related offences, ill-treatment etc.) launched by the Special Public Prosecution. The application concerns three sets of criminal proceedings.

On 12 April 2016 the President of the State adopted a decision on pardon (“pardon decision”, помилување ) in respect of the applicant (relying on section 11 of the 1993 Pardon Act ( Закон за помилување )) and a ruling exempting him from prosecution ( ослободува од гонење ) for some of the criminal offences. Based on a statutory provision adopted subsequently, the President revoked ( поништува ) the pardon decision and the related ruling (“revocation decision”) on 27 May 2016.

On 20 November 2018 the Skopje Court of First Instance, within the first set of proceedings, replaced the preventive measures imposed on the applicant as of 1 July 2017 and issued a detention order against him, due to risk of absconding, according to certain operative information.

On 1 December 2018 the Skopje Court of First Instance quashed the detention order of 20 November 2018 and issued another one for risk of absconding and the risk of influencing the investigation in the second set of proceedings. On 29 December 2018 the Skopje Court of First Instance issued a decision ordering the applicant’s house arrest due to the risk of absconding. The house arrest was extended on 25 January, and 26 and 28 February 2019. On 1 February 2019 the applicant requested that his house arrest be lifted, which request was dismissed by the Skopje Court of First Instance on 1 April 2019. On 27 March 2019, upon the applicant’s appeal, the Supreme Court annulled the house arrest order and released the applicant from the pre-trial detention.

On 8 March 2019 the Skopje Court of First Instance issued a detention order after conviction against the applicant in the third set of proceedings until he started serving his sentence. The Court of Appeal replaced the detention with a house arrest until the applicant started serving his sentence but maximum up to 60 days.

The applicant complains that the pre-trial detention ordered in the first set of proceedings was unlawful, arbitrary and unreasoned, violating different aspects of Article 5 of the Convention. He further complains that the review proceedings before the Skopje Court of Appeal, following his request that his house arrest order of 1 February 2019 (ordered in the second set of proceedings) be lifted, were not compatible with Article 5 § 4 of the Convention.

QUESTIONS TO THE PARTIES

I. Questions in respect of the first set of proceedings against the applicant

1. Was the pardon decision by the President of the State dated 12 April 2016 irrevocable? Was the revocation decision by the President of the State dated 27 May 2016 based on a subsequent statutory provision (section 11-a of the 2016 Pardon Act, Official Gazette no. 99/2016) compatible with the principles of rule of law and legal certainty?

2. Was the 2016 Pardon Act of an individualised nature that targeted specific persons? Given the short-term nature of the President’s entitlement to revoke a pardon issued without regular proceedings, was the 2016 Pardon Act compatible with the principles of rule of law and legal certainty?

3. Is the applicant’s prosecution regarding the alleged crimes to which the pardon and revocation decisions by the President of the State relate, permissible in terms of domestic law?

4. In light of the above considerations, was the applicant’s detention – ordered in the context of the criminal proceedings subject to the pardon and revocation decision by the President of the State – “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention (see Lexa v. Slovakia , no. 54334/00, § 142, 23 September 2008)? Has there been a violation of Article 5 § 1 of the Convention?

5. Was the applicant’s pre-trial detention compatible with Article 5 § 3 of the Convention? Were the grounds given by the courts, including the existence of certain operative information, indicated as a ground in the detention order of 20 November 2018, sufficient as required under this provision (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 222-25, 28 November 2017; Miladinov and Others v. the former Yugoslav Republic of Macedonia , nos. 46398/09, 50570/09 and 50576/09, 24 April 2014; and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia , no. 28169/08, 28 October 2010)? Was the applicant informed of the substance of the indicated operative information and/or could he challenge it?

6. Were the proceedings in respect of the detention order issued against the applicant on 20 November 2018 adversarial within the meaning of Article 5 § 4 of the Convention?

II. Question regarding the second set of proceedings

7. Were the review proceedings before the Skopje Court of First Instance, following the applicant’s request that his house arrest order of 1 February 2019 be lifted, compatible with the “speedy” requirement within the meaning of Article 5 § 4 of the Convention?