Communicated on 16 March 2017

FIRST SECTION

Application no. 11210/15 Kastriot ÄŒELJA against the former Yugoslav Republic of Macedonia lodged on 26 February 2015

STATEMENT OF FACTS

The applicant, Mr Kastriot Čelja , is a Macedonian national who was born in 1979 and lives in Debar. He is represented before the Court by Mr D. Godžo and Mr A. Godžo , lawyers practising in Ohrid .

A. The circumstances of the case

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

On 12 July 2013 the applicant, a policeman at a border crossing post, was detained together with thirty-one other individuals. On the same day he was brought before an investigating judge of the Skopje Court of First Instance ( Основен суд Скопје - hereinafter “the trial court” ) , who decided to open an investigation against the applicant and the other individuals. The applicant was suspected of smuggling and taking bribes. It was alleged that he was part of an organised criminal group which had smuggled livestock across the border with Albania on multiple occasions in the period between 2011 and 2013, avoiding the required customs, veterinarian and other checks and duties. After having heard oral evidence from the accused, the investigating judge, in a single decision, ordered a thirty-day period of pre-trial detention for all of the accused, including the applicant, on account of a risk of their absconding, reoffending and interfering with the investigation. In determining the risk of their absconding, he relied on the gravity of the charges and the anticipated penalty, as well as the fact that the majority of the accused lived in the border area and were suspected of belonging to an organised criminal smuggling group. As for the risk of reoffending, the investigating judge took into account the fact that the accused were charged with repeatedly committing the criminal offences over a longer time period. With regard to their interfering with the investigation, the investigating judge stressed that the investigation had just begun and some of the co-accused were still at large.

On 7 August 2013 a three-judge panel of the trial court (“the panel”), sitting in private, extended the applicant ’ s detention for thirty days at the request of the investigating judge. The same order was given in respect of the other co-accused. The panel granted the extension on the grounds that there was a risk of the accused absconding, interfering with the investigation and reoffending. As to the risk of absconding, the panel relied on the gravity of the charges and the anticipated penalty. It also took into account the fact that the applicant had no immovable property in his name and the fact that he had a family in the respondent State, but considered that these facts were not a guarantee for ensuring his presence at trial. In assessing the risk of interference with the investigation, the panel held that the expert reports with regard to the evidence gathered had not yet been prepared, and that there was risk of the accused interfering with the investigation. As to the risk of reoffending, the panel took into account the fact that the accused were suspected of acting as an organised criminal group.

The applicant appealed, arguing that the panel had given no sufficient reasons to justify his detention. He also made an application for the Court of Appeal to hold a public hearing and invite him and his lawyer to attend.

On 20 September 2013 the applicant ’ s appeal was dismissed by the Skopje Court of Appeal ( Апелационен суд Скопје ) at a hearing held in camera. It found that the panel had given sufficient reasons for the applicant ’ s continued detention. As to the applicant ’ s application for a public hearing, the Court of Appeal held that section 388(1) of the Criminal Proceedings Act was inapplicable in this case. It also took note of a submission made by a higher public prosecutor, who invited the Court of Appeal to dismiss the applicant ’ s appeal.

On 6 September 2013 the panel ordered another thirty-day extension of the detention in respect of all of the accused, including the applicant, on account of the risk of their absconding, interfering with the investigation and reoffending.

The applicant, who was legally represented, appealed on the following grounds: no concrete reasons had been given in support of the extension of his detention, given that he had a family residing in the respondent State; the authorities were in possession of all the evidence which was supposed to be examined by the experts; and he had been dismissed from his post and therefore could not repeat the offence. He made an application for the Court of Appeal to invite him to a public hearing before deciding upon his appeal and to consider replacing the detention with a more lenient measure.

On 7 October 2013 the Court of Appeal dismissed the applicant ’ s appeal and upheld the detention order.

In the meantime, the investigation against the applicant had been broadened to include charges of the unlawful possession and trade of weapons, after guns and ammunition were found in his home.

The applicant ’ s detention was continuously extended for thirty days by decisions of the panel dated: 8 October, 7 November and 6 December 2013; 2 January, 5 February, 7 March, 4 April, 6 May, 5 June, 4 July , 4 August and 3 September 2014. All extension orders were given in the form of a single decision for all of the accused and of the panel ’ s own motion, to review the detention. All of the decisions stated the risk of the accused absconding and reoffending as grounds for extending the detention.

The applicant appealed against each of the panel ’ s decisions. He complained that the panel had not provided concrete reasons which would justify the extension of his detention and argued that such an approach was not in compliance with the Court ’ s established case-law on this matter. He asked that the detention be replaced with a more lenient measure, and made an application for the Court of Appeal to hold a hearing at which he would present his arguments.

All of the applicant ’ s appeals were dismissed by the Court of Appeal at hearings held in camera. The Court of Appeal accepted the reasoning provided by the panel regarding the reasons which warranted the extension of the applicant ’ s detention. As to his application for a public hearing, the court reiterated its finding that the provisions of the Criminal Proceedings Act in relation to holding a public hearing were inapplicable in his case.

On 26 September 2014 the Skopje Court of First Instance convicted the applicant on the charges of smuggling and the unlawful possession of weapons. It sentenced him to five years ’ imprisonment. By a separate decision, the trial court further decided that he would remain in custody until he started to serve his sentence.

On 30 December 2014 the Court of Appeal dismissed the applicant ’ s appeal concerning the further extension of the detention and upheld the first-instance decision.

No further information has been provided as regards the criminal proceedings against the applicant.

B. Relevant domestic law

The relevant provisions of the Criminal Proceedings Act of 2005 ( Закон за кривичната постапка , Official Gazette, no.15/2005) have been summarised in the case Vasilkoski and Others v. the former Yugoslav Republic of Macedonia , no. 28169/08 , 28 October 2010.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that the domestic courts did not give relevant and sufficient reasons for his pre-trial detention. He also complains under Article 5 § 4 of the Convention that there was no oral hearing in the proceedings for review of the extension of his detention and that the public prosecutor ’ s written observations submitted in reply to his appeals were not communicated to him.

QUESTIONS TO THE PARTIES

1. Were the grounds given by the domestic courts concerning the extension of the applicant ’ s detention “relevant and sufficient”, as required under Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07 , ECHR 2016 (extracts) and Vasilkoski and Others v. the former Yugoslav Republic of Macedonia , no. 28169/08 , §§ 58 ‑ 65, 28 October 2010)?

2. Did the authorities respect the principle of procedural fairness, as required by Article 5 § 4 of the Convention (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 and Miladinov and Others v. the former Yugoslav Republic of Macedonia , nos. 46398/09, 50570/09 and 50576/09 , §§ 63-68, 24 April 2014)?

In particular:

(a) Did the applicant have the benefit of an oral hearing before the panel and the Court of Appeal when his pre-trial detention was extended?

(b) Was the principle of equality of arms respected in the procedure before the panel and the Court of Appeal? In particular, were the public prosecutor ’ s written observations submitted in reply to the applicant ’ s appeals against the panels ’ decisions communicated to the applicant?