C ommunicated on 10 February 2021 Published on 1 March 2021

FIFTH SECTION

Application no. 16376/18 Krsto MUKOSKI against North Macedonia lodged on 3 April 2018

SUBJECT MATTER OF THE CASE

The applicant is a member of Parliament. The application concerns alleged unlawfulness of his arrest and police custody of 28 November 2017 (while he enjoyed parliamentary immunity) and lack of sufficient reasons for his pre-trial detention ordered on 5 December 2017 (after the Parliament had lifted his immunity), extended on three occasions and replaced with a house arrest on 26 March 2018. His detention was ordered in relation to charges of terrorism (brought also against other co-accused) in connection to incident of 27 April 2017 when large group of protesters had entered in the Parliament building (in the incident, several members of Parliament, police officers and journalists were injured and there was material damage). The applicant ’ s detention in custody was based on the risk of absconding, reoffending and interfering with the investigation and was justified with the gravity of charges, the severity of potential penalty, the political motives and aims of the imputed crime. Those objective grounds outweighed, in the courts ’ view (at two levels), the applicant ’ s personal circumstances, namely that he had a family (four children), property in the respondent State, no previous criminal record and that he was member of Parliament. His house arrest, which was based only on the flight risk, was justified with the same reasons. It appears that on 27 December 2018 the applicant applied and was granted amnesty in relation to the above charges on the basis of Amnesty Act of 18 December 2018 (Official Gazette no. 233/2018), which provided, inter alia , for termination of criminal proceedings or release from criminal prosecution of people suspected of having committed a crime in relation to the events of 27 April 2017.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular,

( a) As regards his allegations under Article 5 § 1 of the Convention of unlawfulness of his arrest and police custody of 28 November 2017 (owing to his parliamentary immunity which he allegedly invoked on that occasion), were the remedies under section 162 of the Criminal Proceedings Act (a request for review of lawfulness of a deprivation of liberty) and/or under section 553 § 1 (3) of the Criminal Proceedings Act (which provides for compensation for deprivation of liberty “through the fault or unlawful conduct of a body”) available and effective remedies within the meaning of Article 35 § 1 of the Convention? Was there any other effective remedy that the applicant was required to exhaust with respect to his grievances under this head?

( b) As regards the applicant ’ s allegations under Article 5 § 3 of the Convention that the courts did not give sufficient reasons for the extension of his pre-trial detention and having regard to the amnesty apparently granted to him, was the compensation claim under section 553 of the Criminal Proceedings Act of 2010, which provides, inter alia , for the possibility of obtaining just satisfaction for unjustified detention of people who subsequently were not prosecuted or had the proceedings against them terminated , an available and effective remedy within the meaning of Article 35 § 1 of the Convention?

2. If not,

( a) Was the applicant ’ s alleged arrest and police custody of 28 November 2017 “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention since, at the time, he enjoyed and invoked his parliamentary immunity?

( b) Was the extension of his pre-trial detention compatible with Article 5 § 3 of the Convention? In particular, were the grounds given by the courts sufficient as required under this provision? (see Merabishvili v. Georgia [GC] , no. 72508/13, §§ 222-35, 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)?