FIRST SECTION

Application no. 29908/11 Trendafil IVANOVSKI against the former Yugoslav Republic of Macedonia lodged on 9 May 2011

STATEMENT OF FACTS

1. The applicant, Mr Trendafil Ivanovski , is a Macedonian national, who was born in 1946 and lives in Skopje . He is represented before the Court by Mr S. Pavleski , a lawyer practising in Skopje .

The circumstances of the case

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

3. The applicant was a judge of the Constitutional Court between 2003 and 2011 when he was dismissed as a result of the lustration proceedings. During these proceedings and at the time of his dismissal he was also the President of the Constitutional Court . In the period before and during the lustration proceedings there were continuous tensions and exchange of public statements between the Government and the Constitutional Court .

4. On 3 September 2009, the applicant, being a holder of a public office, submitted to the Facts Verification Commission ( Комисија за верификација на факти – “the Commission”) a written statement for non-collaboration with the state security agencies from 1945 onwards (“the statement”), as prescribed with the Additional Requirement for Public Office Act ( Закон за определување дополнителен услов за вршење на јавна функција - “the Lustration Act”).

5. On and around 15 September 2010, different media, despite the confidential character of the proceedings before the Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator of the state security agencies. In the following days the media continued with speculations that the identified collaborator was actually the President of the Constitutional Court . On 24 September 2010, in a letter broadcasted in the media and addressed to the “opponents of the lustration”, the Prime Minister (signed in his capacity as President of the governing party) stated, inter alia , that the Commission had publicly revealed that the applicant had been a collaborator with the state security agencies. On 30 September 2010 the Director of the State Archive said that he, “as a historian, researched personal records and was surprised that a ‘ collaboration thread ’ had appeared in the applicant ’ s personal record, since in the State Archive only the political files of the oppressed had been stored”.

6. During its deliberations held in camera on 16 September 2010, the Commission found that the applicant ’ s statement had not been in conformity with the information it had at its disposal. The applicant was notified about the Commission ’ s finding on 21 September 2010 with a note classified as “strictly confidential” ( строго доверливо ) . He was also instructed that in accordance with the Lustration Act, he might, within five days, provide oral or written observations to the Commission ’ s findings. The applicant replied and requested a public session on 24 September 2010.

7. On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “in the part in which classified information will not be used” and that he could access the whole classified documentation at the Commission ’ s disposal for one hour before the session.

8. On 24 September 2010 the applicant replied to the above notification and expressed his discontent that the Commission had first informed the media about the public session and only then him. He also objected to the imposed time constraints regarding his access to the Commission ’ s files. The Commission, in turn, immediately informed him that he could inspect his “personal record” at the State Archive as well as the documents at the Commission in the coming days until the session. The applicant inspected the Commission ’ s documents on the same day.

9. On 27 September 2010 the Commission held a public session at its premises in a meeting room of around 20 square meters. A large number of media representatives were present. During the session, the applicant denied any allegations about the veracity of his statement. He disputed the authenticity of the documents contained in the files as he neither had composed nor signed them and claimed that the reports contained therein had been forged, taken from others ’ and added to his personal record. He further denied the authenticity of the signature of two payment receipts, which indicated that he had received money for the collaboration. He alleged a confusion regarding the different collaboration pseudonyms appearing in the files and the identity behind them. He also claimed that an episode from the time when he had still been a minor and forced to have contacts with the police, due to his involvement with a high-school nationalistic group, had been misused.

10. On 29 September 2010 the Commission decided that the applicant ’ s objection to its initial finding of 16 September 2010 was not in accordance with the information available and that consequently he had not fulfilled the additional requirement for performance of a public function. The decision was based on the applicant ’ s “personal record” from the State Archive and contains a list of 22 documents. It summarised the contents of the documents and stated inter alia , that, as indicated on the two payment receipts, the applicant, in 1965, had been paid for the collaboration. It was served on the applicant on 30 September 2010 and classified as “strictly confidential”.

11. In an exchange of correspondence on 1 October 2010, the applicant requested that the Commission provided him with a copy of the file to prepare lawsuit before the Administrative Court against the Commission ’ s decision. The Commission informed him that they only had copies ( препис ) while the originals were available in the State Archive and advised him to search for them there. Upon the applicant ’ s request of the same day, the State Archive on 4 October 2010 provided him with the copy of his personal record.

12. On 5 October 2010 the applicant also asked the State Archive to provide him with the “document for establishing the personal record” that allegedly existed in the Commission ’ s files that he had inspected earlier on 24 September 2012. He further pointed out the inconsistencies among the files provided to him by the State Archive, the inventory of the documents contained in his record and the documentation adduced in the Commission ’ s decision. The State Archive responded that they had simply received the personal records from the state security agencies as they were, and had listed them by name without any further inspection into their contents as they had not been authorised to do so. Finally, they invited the applicant to inspect the personal record under their supervision.

13. On 8 October 2010 the applicant lodged his lawsuit before the Administrative Court against the Commission ’ s decision. In its reply, the Commission firstly listed and made a reference to twenty-two documents and then also mentioned “forty-seven written documents” on which it based its decision. The Commission ’ s reply was classified as “strictly confidential”.

14. In his submissions to the Administrative Court , the applicant raised various concerns about the fairness of the proceedings and about errors of fact and law. He specified that the session had been held without Commission Rules of Procedure ( Деловник за работа ) which the Commission should have adopted ex lege before establishing the facts. The public session had not been, as initially planned, followed by proceedings in camera , and he therefore had not had an opportunity to fully present his arguments concerning the classified information of the file. He further objected that the time-limit for the preparation of his appeal had been effectively shorter since he had received the copies of the State Archive only on 5 October 2010 and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the files ’ documents and requested a technical examination ( графолошко вештачење ) of the signature on the two payment receipts. He proposed additional evidence, asked that a public hearing be held and requested leave to invite an expert, Dr. I.B., a university professor of state security and intelligence and a former member of the state security agencies.

15. On 26 October 2010 and 2 November 2010 the Administrative Court held a public hearing in the presence of the applicant, Dr. I.B. and the President of the Commission.

16. On 8 November 2010 the Administrative Court dismissed the applicant ’ s lawsuit and confirmed the Commission ’ s decision. In its judgment, the Administrative Court stated inter alia that the Commission ’ s files and the originals received from the State Archive were identical and contained 27 documents. It also found that “... the Commission had neither been authorised nor obliged to determine facts that may only be established by technical examinations ( вештањења ) within criminal proceedings. The Commission does not conduct any adversarial proceedings and may, as facts (truths), admit only the records made by the [state security] services of the former system.” As for the payments, the Administrative Court found that it had been immaterial ( беспредметно ) to determine whether they had been received by the applicant as this had been “only one of the requirements for a collaboration to be established”. The judgment also took into account the statements of Dr. I.B. Parts of the judgment were classified as “strictly confidential”. The presiding judge was L.K. who was soon after promoted to the newly established Higher Administrative Court . The applicant alleges that judge V.S. was also initially designated to sit in the Administrative Court ’ s panel.

17. In his appeal of 25 November 2010 to the Supreme Court, the applicant expressed his concerns about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the state bodies had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by Dr. I.B. and annexed an additional written statement by Dr. I.B. He also objected to the Administrative Court ’ s finding on the Commission ’ s powers and complained that the Administrative Court therefore had failed to fully determine the facts and had not ordered any technical examination to check the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant ’ s appeal, and the applicant provided additional observations on the Commission ’ s reply.

18. On 2 March 2011 the Supreme Court dismissed the applicant ’ s appeal and upheld the Administrative Court ’ s judgment. The Supreme Court stated inter alia that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant ’ s remaining complaints and concluded that they were of no relevance for a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court found that no formal procedures existed at the time when these documents had been produced and therefore dismissed the applicant ’ s allegations. Judge V.S. who in the meantime had been promoted from the Administrative Court to the Supreme Court sat in the panel and, according to the applicant, acted as a rapporteur in his case.

19. Around 4 March 2011, the President of the Supreme Court gave a statement to the media regarding the contents of the case and its outcome. The applicant was served with the judgment on 9 March 2011. Media reports suggested that the Commission had asked the Public Prosecutor to open criminal proceedings against the applicant on charges of submitting false statements or evidence and that the State Public Prosecutor stated that he would not take “any action before the court in Strasbourg decides the case”.

20. On 11 April 2011, the Parliament ex lege dismissed the applicant from his office as a judge of the Constitutional Court despite the experts ’ debates about the constitutionality of any such action.

21. On 14 April 2011, during its last session before early elections, the Parliament appointed V.S. as a judge of the Constitutional Court . The position was vacated as a result of the applicant ’ s dismissal.

22. The proceedings were closely followed by the international community present in the respondent State and referred to in various reports, most notably, the European Commission ’ s Progress Report of 9 November 2010 which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary”.

COMPLAINTS

23. The applicant complains under Article 6 of the Convention about the overall fairness of the lustration proceedings. He complains about lack of the Commission ’ s and the courts ’ impartiality and independence, due to the public statements made by political representatives and judicial officials, the political influence exercised by the Government, the functioning and the composition of the Commission and the promotions of the judges that sat in his case. The applicant also alleges that the principles of equality of arms and adversarial proceedings have been violated, due to the continuous pressure exercised against him not to reveal classified information, the short time-limits he had for the preparation of arguments and his limited access on the one hand and others ’ unauthorised and unlimited access to the files on the other. He further complains about his access to court since the courts had not established full jurisdiction over the facts, they had erred on the facts and moreover, he could have not effectively challenge the decisive evidence against him, which put him in a disadvantaged position vis-à-vis the State. The applicant alleges arbitrariness in assessing the evidence and lack of reasoning in the decisions. He also invokes a violation of the presumption of innocence under Article 6 § 2 and of his defence rights under Article 6 § 3 (b) and (d).

24. The applicant complains under Article 8 that, in view of his position as the President of the Constitutional Court , the lustration proceedings had a complex impact on his reputation, personal dignity and integrity. He also alleges that he was, and continuously remains, registered as a collaborator without his knowledge or acceptance, that his personal information had been collected and continuously stored in the registries of the state security services, that unauthorised persons had access to his personal information and that due to the proceedings, certain moments of his early youth had to be publicly revealed and discussed.

25. The applicant complains under Article 13 that he de facto did not have recourse to an effective legal remedy to protect his rights guaranteed under the Convention.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case?

2. Does the Commission satisfy the criteria laid down in the Court ’ s case-law to be seen as a “tribunal” within the meaning of Article 6 of the Convention (see Olujić v. Croatia , no. 22330/05, 5 February 2009)?

3. Did the applicant have a fair hearing, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Was the tribunal (including the Commission), which dealt with the applicant ’ s case, independent and impartial, as required by Article 6 § 1 of the Convention? Were the Commission ’ s Rules of Procedure clear and accessible as regards all stages of the proceedings before the Commission, ensuring the applicant ’ s rights protected under Article 6?

(b) Was judge V.S. involved in the proceedings before the Administrative Court, and if so, in what capacity?

(c) Could the applicant, without any technical examination being granted, effectively challenge the authenticity of the documents contained in the files (in particular, the payment receipts), as decisive evidence against him? In this context, did he have access to a court with a full jurisdiction over all the facts relevant to the lustration proceedings?

(d) Did the applicant have full access to all documents and sufficient time to prepare his arguments in the proceedings before both the Commission and the courts?

4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the public statements made by the political and judicial representatives, such as the letter of the Prime Minister of 24 September 2009 or the statement of the President of the Supreme Court of 4 March 2010, violate the applicant ’ s right to be presumed innocent in the lustration proceedings?

5. Has there been an interference with the applicant ’ s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? In particular:

(a) Is the applicant ’ s continuous and indefinite registration as a collaborator in the state security services ’ registries contrary to the guarantees of Article 8? In this context, has the collection and continuous storing of his personal data been proportionate?

(b) Have any unauthorised persons had access to the files concerning the applicant ’ s private life? In this context, was the access to the file and the public statements of 30 September 2010 of the Director of the National Archive and of 4 March 2011 of the President of the Supreme Court contrary to the guarantees of Article 8 of the Convention?

6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 6 and 8 as required by Article 13 of the Convention?