Published on 28 November 2022

SECOND SECTION

Applications nos. 45935/18 and 55102/18 Sonja NIKOLOVSKA against North Macedonia lodged on 22 September 2018 and 14 November 2018 respectively communicated on 11 November 2022

SUBJECT MATTER OF THE CASE

The applicant is the former owner of a savings company (штедилница) that went bankrupt. A lot of people, in particular from Bitola, lost their deposits in what was later established by the judicial authorities to constitute a “pyramid savings scheme”. The events attracted considerable public attention in the respondent State.

Application no. 45935/18 ( К.бр.257/14 ) concerns the criminal proceedings against the applicant for fraud unrelated to, but conducted at the time of the events and the proceedings subject of application no. 55102/18, regarding the savings company. After a remittal, the applicant unsuccessfully requested exclusion of the trial judge M.R. (Bitola Court of First Instance) on account of the strong wording used in the trial court’s judgment regarding the applicant’s propensity to deceive people in relation to the savings company’s activities. The three-judge panel of the Bitola Court of Appeal that decided the applicant’s appeal included judge L.M. who allegedly had a deposit in the savings company. The Supreme Court finally upheld the applicant’s conviction and the prison sentence (three years and six months).

Application no. 55102/18 ( К.бр.110/02 ) concerns the criminal proceedings against the applicant for fraud in relation to the savings company, in which the domestic courts, at three levels of jurisdiction, established that she had deceived over 1,200 savers to deposit sums up to 320,000 euros (EUR), which had not been subsequently reimbursed.

During the investigation, the police temporarily seized documentary evidence related to the work of the savings company. Subsequently, in the applicant’s absence and without any records being made, the police opened the bags containing the evidential material and, as established by a public prosecutor, analysed, selected and seized certain pieces of evidence. It appears that the evidence in question served as basis for the expert reports subsequently relied on by the trial court in establishing the facts of the case. In addition, the statements of over a hundred former savers, heard by a pre-trial judge (different from the trial judge) in the applicant’s absence, were subsequently read out at the trial despite the applicant’s objection.

The trial judge V.K. from the Ohrid Court of First Instance (to which the case was assigned) unsuccessfully requested to be excluded from sitting in the case on account of the fact that her family members had had deposits in the savings company. Both the Bitola Court of Appeal and the Supreme Court confirmed the applicant’s conviction and the prison sentence (four years and six months).

In both sets of proceedings and after the applicant had been convicted at first instance, she unsuccessfully requested exclusion of the president (judge D.R.) and all judges of the Bitola Court of Appeal given that many of them were savers in the company. Those requests were decided by judge D.R.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular,

(a) and given the overall context, were judges M.R. and L.M. (application no. 45935/18), judge V.K. and the three judges of the appeal panel (application no. 55102/18), as well as president D.R. of the Bitola Court of Appeal in both applications, impartial, as required by Article 6 § 1 of the Convention (see Morice v. France [GC], no. 29369/10, §§ 73-91, ECHR 2015; Mitrov v. the former Yugoslav Republic of Macedonia , no. 45959/09, §§ 48-55, 2 June 2016; Nikolov v. the former Yugoslav Republic of Macedonia , no. 41195/02, §§ 21-26, 20 December 2007; Pétur Thór Sigurðsson v. Iceland , no. 39731/98, §§ 37-45, ECHR 2003 ‑ IV; and, mutatis mutandis , Stoimenovikj and Miloshevikj v. North Macedonia , no. 59842/14, § 40, 25 March 2021?

(b) regarding application no. 55102/18, was the fairness of the criminal proceedings against the applicant prejudiced by the admission as evidence of:

- the expert reports, in view of the manner in which the evidence relied upon was obtained (see, mutatis mutandis , Budak v. Turkey , no. 69762/12, §§ 78 et seq., 16 February 2021)? Was the applicant able to effectively challenge the expert reports?

- the witnesses’ statements obtained during the investigation (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015)?

The Government are invited to submit full copies of the case files.