Communicated on 4 February 2016

FIRST SECTION

Application no. 3790/13 Vlado LAZAROVSKI against the former Yugoslav Republic of Macedonia lodged on 26 December 2012

STATEMENT OF FACTS

The applicant, Mr Vlado Lazarovski , is a Macedonian national, who was born in 1955 and lives in Gevgelija .

A. The circumstances of the case

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

1. Termination of the applicant ’ s office of public prosecutor

On 11 July 2002 the National Parliament elected the applicant as public prosecutor in Gevgelija . His term of office, as provided for in the legislation valid at the time, was six years.

In December 2007 a new Public Prosecution Act (“the Act”) entered into force. Section 94 of this Act provided that public prosecutors elected before it entered into force remained in office until their term would expire. On request, the Council of Public Prosecutors (“CPP”), a newly created body competent to decide issues related to public prosecutors, including their appointment, assessment and dismissal, re-elected them to the office of a public prosecutor of an indefinite duration. Under this provision, the CPP could terminate the office of public prosecutor ( престанок на функцијата јавен обвинител) had the requirements, specified in sections 66, 68, 69, 70, and 71 of the Act (see “Relevant domestic law” below), been fulfilled .

On 4 September 2008 the applicant filed an application before the CPP requesting, under section 94 of the Act, renewal of his term of office of public prosecutor on an indefinite duration. At a session held in private on 20 July 2009, the CPP held that the requirements set out in section 71 of the Act (see “Relevant domestic law” below) were fulfilled in the applicant ’ s case and that accordingly his office of public prosecutor should be terminated due to professional misconduct ( нестручно и несовесно вршење на функцијата јавен обвинител ) . The relevant parts of the decision read as follows:

“The [State] Public Prosecutor ... submitted a report regarding [the applicant ’ s work] with a proposal for termination of his office of public prosecutor due to professional misconduct.

On the basis of the [applicant ’ s] request, the report and proposal of the [State] Public Prosecutor ... the CPP established that conditions [for professional misconduct] were fulfilled and (it) did not renew the term of office of [the applicant] ...”

As advised in the notice on legal remedies ( правна поука ), the applicant challenged this decision before the Administrative Court. He complained that he had been discharged without the misconduct proceedings specified in the Act and the relevant Rules of the CPP being conducted. In this connection he disputed whether there had been a request by an authorised complainant and if so, whether it had been submitted in good time and what had been the grounds and reasons for the impugned decision. He also complained that he had neither been informed nor given the opportunity to put forward his arguments, either in writing or verbally at an oral hearing. Lastly, he sought that the Administrative Court held an oral hearing at which he could present his arguments.

At a hearing held in private on 19 May 2011, the Administrative Court dismissed the applicant ’ s claim finding the CPP ’ s decision lawful. It held that the impugned decision had been delivered in proceedings upon his request for transformation of his office of definite into an indefinite duration to which the provisions for misconduct proceedings provided for in the Act had not applied.

The applicant appealed against this decision reiterating his earlier complaints. By a decision of 5 July 2012, the Higher Administrative Court dismissed the applicant ’ s appeal finding no grounds to depart from the reasons provided by the Administrative Court.

2. Other relevant information

The applicant submitted a copy of an article published in a daily newspaper which quoted the then President of the CPP saying that 131 out of 146 public prosecutors had been re-elected in the office. Of 15 prosecutors whose term of office had not been renewed, 5 prosecutors had fulfilled the requirements for retirement; the office of 8 prosecutors had been terminated for professional misconduct and the office of 2 prosecutors, for discourteous behavior.

B. Relevant domestic law

Section 66 of the Public Prosecution Act provides that the office of public prosecutor can be terminated on the following grounds: on request by the person concerned; for loss of the Macedonian nationality; for permanent incapacity to work as public prosecutor; if he or she fulfils the retirement requirements; if he or she is appointed into another public office; and if he or she is convicted and sentenced.

Under section 68 of the Act a public prosecutor can be dismissed from the office for a gross violation of disciplinary rules and for professional misconduct.

Sections 69 and 70 of the Act specify gross and ordinary violations of disciplinary rules, respectively.

Section 71 of the Act defines professional misconduct by a public prosecutor.

Section 72 of the Act provides that professional misconduct proceedings are conducted by a five-member commission set up by the State Public Prosecutor. Its decision is amenable to an appeal before the CPP. The latter ’ s decision can be subject to an appeal before the Administrative Court. Lastly, this provision provides that the CPP regulate the professional misconduct proceedings by Rules.

COMPLAINTS

The applicant complains under Article 14 and Article 1 of Protocol No. 1 of the Convention that he was dismissed from the office of public prosecutor without the professional misconduct proceedings provided for in the Act being conducted. In this connection he alleges that there was no request for his dismissal by an authorised complainant; that he was not given the opportunity to present his arguments, either in writing or verbally at a hearing and that he was denied the right to appeal. For these reasons, he alleges that he was dismissed on discriminatory grounds.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was he acquainted with the reasons that led to termination of his office due to professional misconduct? Did he have an effective opportunity to put forward arguments in his favour, before the Council of Public Prosecutors and the Administrative Courts?