TALESKI A OSTATNÍ proti Severní Makedonii

SECOND SECTION

DECISION

Application no. 77796/17
Vladimir TALESKI against North Macedonia
and 5 other applications
(see list appended)

The European Court of Human Rights (Second Section), sitting on 24 January 2023 as a Chamber composed of:

Arnfinn Bårdsen, President,
Pauliine Koskelo, judge,
Tim Eicke, ad hoc judge,
Saadet Yüksel,
Lorraine Schembri Orland,
Frédéric Krenc,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,

Jovan Ilievski, the judge elected in respect of North Macedonia, withdrew from sitting in the Chamber (Rule 28 of the Rules of Court). On 22 March 2022 the President of the Chamber decided to appoint Tim Eicke, the judge elected in respect of the United Kingdom, to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 of the Rules of Court).

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the fact that the Albanian Government, who had been informed of their right to intervene in the proceedings as regards application no. 80003/17, under Article 36 § 1 of the Convention, gave no indication that they wished to do so,

Having regard to the joint comments submitted by the Helsinki Committee for Human Rights and the “Foundation Open Society – Macedonia” (“the third‑party interveners”), who were granted leave to intervene by the President of the Section,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The Government of North Macedonia (“the Government”) were represented by their Agent, Mrs D. Djonova, assisted by Mr Timothy Otty KC and Mr George Molyneaux, both barristers from Blackstone Chambers, London, the United Kingdom.

The circumstances of the case

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

1. Background to the case

4. At the relevant time the following applicants held high-ranking positions within the Government and/or the then ruling political party (Внатрешно‑Македонска Револуционерна Организација-Демократска Партија за Македонско Национално Единство – “the VMRO-DPMNE”), now in opposition: Mr Gruevski was Prime Minister and party leader at the time; Ms Jankuloska and Mr Janakieski were Minister of the Interior and Minister for Transport respectively; Mr Mijalkov was the Director of the Bureau for Security and Counterintelligence (“the UBK”) and Mr Jakimovski was a Section Chief; Mr Taleski and Mr Trajkovski were municipality mayors. Mr Temelko was a municipality mayor in Albania.

5. In 2015 the existence of a vast programme of covert recording of thousands of telephone conversations throughout North Macedonia was revealed by the biggest opposition party at the time (Социјалдемократски Сојуз на Македонија – “the SDSM”), now in power.

6. In 2015 a senior experts’ group on systemic rule of law issues issued a report on behalf of the European Commission (entitled “The former Yugoslav Republic of Macedonia: Recommendations of the Senior Experts’ Group on systemic Rule of Law issues relating to the communications interception revealed in Spring 2015” and dated 8 June 2015, known as “the Priebe report”), the relevant parts of which read as follows:

“1. Interception of communications

From 9 February 2015 to the present date, the opposition party SDSM has released a total of 36 packages of audio tapes of recorded telephone conversations of, among others, the Prime Minister, government Ministers, senior public officials, Mayors, Members of Parliament, the Speaker of the Parliament, opposition leaders, judges, the State Prosecutor, civil servants, journalists, editors and media owners into the public domain. The amount of material contained in these releases so far has reached around 500 pages of transcripted conversation. SDSM claims that it has access to over 20,000 such recorded conversations in total, and that these recordings have been made by the national intelligence services. The making of these recordings is generally acknowledged to have been illegal, to have taken place over a number of years and not to have been part of any legitimate court-sanctioned operations. The recordings are also of a quality, scale and number to be generally acknowledged to have been made inside the national intelligence service’s facilities. The content of many of the recordings provide indications of unlawful activities and abuse of power by senior government officials.

Causes of the current situation

The causes of the protracted scandal in the former Yugoslav Republic of Macedonia can be traced back both to a concentration of power within the national security service (UBK) and to a malfunctioning of the oversight mechanism over the UBK.

The UBK appears, to an external onlooker, to have been operating outside its legal mandate on behalf of the government, to control top officials in the public administration, prosecutors, judges and political opponents with a consequent interference in the independence of the judiciary and other relevant national institutions.

... from a practical point of view, the UBK can intercept communications directly, autonomously and unimpeded, regardless of whether a court order has or has not been issued in accordance with the Law on Interception of Communications.

...

Content of the interceptions

The scale of the unlawful recording of conversations, the concentration of power within the UBK, the over-wide remit of the UBK’s mandate (which, despite its considerable breadth, was nevertheless exceeded) and the dysfunctional external oversight mechanism have resulted in a number of serious violations:

• Violation of the fundamental rights of the individuals concerned;
• Serious infringements of the personal data protection legislation;
• Violation of the 1961 Convention on Diplomatic Relations (Vienna Convention), given that diplomats have also been illegally intercepted;
• Apparent direct involvement of senior government and party officials in illegal activities including electoral fraud, corruption, abuse of power and authority, conflict of interest, blackmail, extortion (pressure on public employees to vote for a certain party with the threat to be fired), criminal damage, severe procurement procedure infringements aimed at gaining an illicit profit, nepotism and cronyism;
• Indications of unacceptable political interference in the nomination/appointment of judges as well as interference with other supposedly independent institutions for either personal or political party advantages.

...”

7. The release of the recordings exacerbated the serious political crisis which already existed in the respondent State. In a report entitled “Commission Staff Working Document, The former Yugoslav Republic of Macedonia: 2016 Report” (SWD(2016) 362 final, 9 November 2016) regarding the respondent State, the European Commission noted “the country was faced with the continuation of the most severe political crisis since 2001 ... democracy and the rule of law continue to be challenged, in particular due to the capture of institutions such as judicial bodies, regulatory agencies and media outlets. The country suffers from a divisive political culture and a lack of capacity for compromise”. “State capture” was also mentioned in a report entitled “The former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts’ Group on systemic Rule of Law issues 2017” and dated 14 September 2017 (“the second Priebe report”). That second report further reiterated that the recordings of communications:

“were performed illegally, outside of court-sanctioned operations from inside the national intelligence service’s facilities – the Bureau for Security and Counterintelligence (UBK) ... The assessment was one of a very serious malfunction of the oversight mechanism over the Bureau for Security and Counterintelligence (UBK) and a concentration of power in this institution ... There are indications that illegal interception continued after the group’s recommendations were issued. The necessary safeguards, oversight mechanisms and internal control measures have not been put in place to prevent any risk of illegal wiretapping. As the 2015 report stated, the scandal ‘demonstrated a disrespect for professional ethics, basic principles of risk management and a lack of knowledge of the sensitivity of the intelligence task at hand within the UBK.’ There are indications that concerns expressed then about the lack of respect for basic fundamental rights and data protection rules still stand.”

8. In September 2015 the national Parliament adopted the Law on the public prosecutor’s office for the prosecution of cases related to and arising from the content of the unlawful interception of communications (Закон за Јавното обвинителство за гонење на кривични дела поврзани и кои произлегуваат од содржината на незаконското следење на комуникациите), which provided for the appointment of a Special Prosecutor whose task was to “investigate and prosecute criminal offences related to and arising from the content of unlawfully intercepted communications”. The applicants asserted, and the Government did not deny, that the SDSM had handed over some 540,000 audio files of intercepted communications and six boxes of transcripts to the Special Prosecutor’s Office (“the SPO”). The second Priebe report (see paragraph 7 above) confirmed that “the SPO [had] received a ‘package of over 20,000 illegal interceptions’”. The SPO then launched (or took over from the regular prosecutor’s office) an investigation into the revelations about alleged criminal conduct stemming from the content of the interceptions, and lodged numerous bills of indictment against individuals, senior public officials and high-ranking former government officials, including the applicants.

9. The investigation in respect of Mr Taleski (application no. 77796/17) concerned charges of rigging the procurement process for transportation services for school children (a case known as “Transporter”); Mr Temelko, Ms Jankuloska and Mr Janakieski (applications nos. 80003/17 and 11583/18) were charged with various electoral offences (a case known as “Titanic 1”); Mr Mijalkov (application no. 30884/18) was charged with having incited several police officers to subject a political opponent at the time to inhuman and degrading treatment (a case known as “Torture”); the charges against Ms Jankuloska and Mr Jakimovski (application no. 81862/17) concerned the alleged destruction of equipment used in the unlawful wiretapping (a case known as “Fortress”); and the charges in respect of Mr Gruevski, Mr Janakieski and Mr Trajkovski (application no. 81848/17) concerned the unlawful demolition of a business complex built by a political opponent (a case known as “TNT”). The Court has already ruled on the applications submitted to it by the victims in the cases of “Torture” (application no. 71034/13) and “TNT” (application no. 37948/13). In addition to the criminal proceedings to which these applications relate, certain applicants have also been charged with and/or convicted of criminal offences in other proceedings. All the criminal cases to which these applications relate were heard by the Skopje Court of First Instance (“the trial court”) and the Court of Appeal.

10. At the time there were a series of anti-government protests known as “the Colourful Revolution” led by the civic movement “I protest” (“Протестирам”), with demonstrators throwing paint on monuments and government buildings constructed as part of the controversial “Skopje 2014” project financed by the Government led by the then ruling VMRO-DPMNE.

2. Pardons by the President of the respondent State

(a) Legislative developments and related judicial decisions preceding pardons

11. Under section 11 of the 1993 Pardon Act, the President of the State was entitled to grant pardons to individuals (exceptionally and without conducting pardon proceedings) when the interests of the State or specific circumstances so required (see paragraph 48 below). In January 2009 an Act amending the 1993 Pardon Act (“the 2009 Pardon Act”) entered into force, which, inter alia, repealed section 11 (and introduced a list of criminal offences in respect of which pardons could not be granted). On 16 March 2016 the Constitutional Court struck down (укинува) the 2009 Pardon Act, holding that it was unconstitutional (U.br.19/2016, see paragraph 51 below).

(b) Pardons

12. On 12 April 2016 President I. (elected as the candidate of the VMRO‑DPMNE) issued fifty-one individual pardons (published in the Official Gazette no.72/2016) accompanied by 107 individual rulings (not published in the Official Gazette, but delivered by the President to the SPO and the trial court) exempting fifty-six people, including the applicants (some applicants were pardoned more than once), from criminal prosecution in relation to the specific alleged offences identified in the rulings. As regards the applicants, the pardons and rulings concerned the alleged offences described in paragraph 9 above. As stated by the Government and not contested by the applicants, the pardons mainly concerned cases that were at the pre-investigation stage. All the individual pardons and rulings were based, inter alia, on section 11 of 1993 Pardon Act and Article 114 of the Criminal Code (see paragraphs 47 and 48 below). In five out of twenty-two cases, they concerned people who were being investigated by the SPO.

13. In a public speech given on the same date, President I. explained the reasons for his decisions. The relevant parts of the speech read as follows:

“Our country has been facing a deep political crisis for two years now ... the crisis is severely detrimental to Macedonia and all of its citizens. It has seriously damaged the country’s reputation, it has slowed down reforms and progress, it has distorted the focus on our strategic aims of EU and NATO integration, it has damaged the economy and it has contributed to deeper division in every pore of society, to radicalisation of the political structure ...

...

The recent developments have resulted in an unprecedented political confrontation, in politics of mutual clashes and destruction. In endless retaliation, hatred and personal confrontations ...

For these reasons, and with an intention to contribute to the resolution of the crisis, to the relaxation of the strained relations and to a decrease in tensions between the opposing political forces and their supporters ..., but also with a strong belief that I am making a decision that is in the interests of the State and the nation, its stability and independence, I have decided to put an end to the agony that the Republic of Macedonia is suffering. Metaphorically speaking, I have decided to cut the [Gordian] knot, in line with the powers vested in me by the Constitution and the law, through a decision that enforces a general termination of all court proceedings concerning the politicians and their supporters.

...

If I have omitted anyone and ascertain so in the forthcoming period, I shall correct such an omission...

...

I am convinced that this decision means a big step toward reconciliation, and that this will help restore a normal political and democratic contest ...”

3. Subsequent events

(a) Public reaction to the pardons

(i) The Colourful Revolution

14. There were massive street protests in response to the pardons granted by President I. His office in the centre of Skopje was set on fire and protesters sought his resignation.

(ii) Opinions of national experts, foreign States and international organisations

15. Both parties in the instant case submitted transcripts of television interviews, newspaper articles and other documents in which national legal experts had expressed divergent opinions about the lawfulness of the pardons based on their (divergent) views as to the validity of section 11 of the 1993 Pardon Act at the time. The experts referred to by the Government, some of whom were engaged at the time as advisors to the SPO or were members of parliament representing the SDSM (paragraph 5 above), considered that that provision had been repealed by the 2009 Pardon Act and had not been in force when the pardons had been granted. Accordingly, it was their view that the President had acted without any legal basis and that the pardons, which had been based on section 11 of the 1993 Pardon Act, had been unlawful ab initio. On the other hand, experts referred to by the applicants, both of whom were associated with the VMRO-DPMNE (one was a presidential candidate and a member of parliament, and the other held a high-ranking position in that political party), considered that the revocation of the 2009 Pardon Act by the Constitutional Court (see paragraph 11 above) had restored section 11 of the 1993 Pardon Act to the legal order of the respondent State, with the resulting effect that the pardons had been lawful.

16. The Government further submitted newspaper articles and press releases recording statements of criticism by representatives of States (Germany, the Netherlands, the United Kingdom, the United States) and of the EU, as well as calls for the pardons to be annulled in order “to preserve the principle of accountability [and] ensure equal treatment before the law ...”. The European Commission noted that “the President’s subsequent attempt to pardon 56 individuals charged or allegedly involved in the wiretaps reinforced the public perception of impunity and selective justice. It also showed a serious lack of political will to engage effectively against corruption” (Commission Staff Working Document, The former Yugoslav Republic of Macedonia: 2016 Report (COM(2016) 715 final, 9 November 2016)). NATO expressed similar concerns.

(b) Annulment of the pardons

17. Following the enactment on 20 May 2016 of the 2016 Pardon Act, which conferred on the President the power to annul a pardon granted exceptionally and in the absence of pardon proceedings (see paragraph 52 below), on 27 May and 7 June 2016 President I. adopted fifty-one individual decisions declaring the pardons he had granted on 12 April 2016 to all applicants null and void, to be effective ex tunc (“the annulment decisions”). All the annulment decisions were published in the Official Gazette. Before the annulment, on 16 and 18 April 2016 respectively, Mr Gruevski and Mr Taleski had requested in writing that the President annul the pardons granted to them. The annulment decisions in respect of these two applicants contained no reference to their requests.

(c) Position of the national authorities regarding the pardons of 12 April 2016

(i) National criminal courts

18. On 15 April 2016 the trial court (in a case known as “Coup”, which did not include any of the applicants) discontinued (се запира) the criminal proceedings against several accused persons, including Mr Z.Z. (at the time, the leader of the SDSM and subsequently Prime Minister of the respondent State), on account of the pardon granted to him by President I. on 12 April 2016 (KOK 77/15). On 14 June 2016 the Skopje Court of Appeal quashed that decision on account of the subsequent annulment of the pardon under the 2016 Pardon Act. In doing so, the court held that the trial court’s decision had not violated any substantive or procedural rules, since at the time the pardons had been legally valid (правно валидна одлука за помилување). It nevertheless ruled that it had competence to examine proprio motu whether the grounds precluding the criminal prosecution had still existed, and held that the pardons in question had been validly annulled by decisions which had been effective ex tunc and had eliminated the legal effect of the pardons (KOKZ 27/16)[1].

19. By a decision of 25 April 2016, in respect of Mr Jakimovski and Ms Jankuloska (application no. 81862/17), among others, a pre-trial judge of the trial court (sitting in private and acting proprio motu) rejected an application by the SPO for preventive measures aimed at ensuring suspects’ attendance at trial (including a ban on their leaving their places of residence; a duty to report; the temporary seizure of their passports; and a ban on their performing certain activities), given that the accused had been pardoned by the President and could not be subject to criminal prosecution regarding the offences in question (KOK PP 105/16). No appeal was submitted, therefore that decision became final.

20. By three separate decisions issued between 5 June and 13 November 2017, a three-judge panel of the trial court dismissed with final effect the objections of Mr Taleski (“Transporter”), Mr Jakimovski and Ms Jankuloska (“Fortress”), among others, as well as the objections of Mr Gruevski, Mr Janakieski and Mr Trajkovski (“TNT”) to the bills of indictment lodged against them. The panel held that, inter alia, the pardons granted to the accused had been “in effect between 12 April and 27 May 2016”, and that the subsequent annulment had not been retrospective (cases nos. I KOK OOA 9/17; I KOK OOA 28/17; and IX KOK OOA 24/17). In a decision of 7 December 2017 the trial court, sitting as a single judge, dismissed an argument by Mr Mijalkov regarding the pardon granted to him, holding that it had been annulled. However, it upheld his objection that there was insufficient evidence to support the indictment (“Torture” case, XII KOOA 53/17). By a decision of 5 March 2018 (KSZH 90/18) the Skopje Court of Appeal upheld an appeal by the SPO and overturned the lower court’s decision with final effect, confirming the indictment against Mr Mijalkov. In all of the above decisions, the trial court made explicit reference to the pardons and the individual rulings in respect of each accused (see paragraph 12 above).

21. By a judgment of 2 July 2021 the trial court convicted Ms Jankuloska and Mr Jakimovski[2] (application no. 81862/17) among others, and sentenced them to four and six years’ imprisonment respectively. In the judgment (KOK 47/17), which runs to some 480 pages and, as stated therein, concerns “one of the largest and most complex cases [in the history] of the Macedonian judiciary”, the trial court dismissed arguments by these applicants which related to the pardons. In doing so, it noted that “the purported pardons” (наводното помилување) had been based on section 11 of the 1993 Pardon Act, which had previously been repealed and accordingly had not been in force in 2016; consequently, they could not have any legal effect. It further held that the Constitutional Court’s decision of 16 March 2016 (U.br.19/2016, see paragraph 51 below) had not “revived” that provision, since that court had no competence to enact laws or reinstate repealed provisions; that latter conclusion had been confirmed by the Constitutional Court (reference was made to all rulings, available at the time, mentioned in paragraph 65 below). The court further referred to the opinion of some national experts (see paragraph 15 above) and the Legislative Committee (see paragraph 23 below). It also held that the pardons “de facto constituted an act at amnesty ... which [wa]s [with]in the exclusive competence of Parliament.” In such circumstances, the trial court concluded that the pardons had been null and void ab initio and, although unnecessary, their annulment in May 2016 had been lawful, because the Constitution did not proscribe Parliament conferring (by virtue of the law) such a right on the President, and the Court’s case-law (referring to Lexa v. Slovakia (no. 54334/00, 23 September 2008)) did not suggest that a pardon was irrevocable. Furthermore, it noted that there was no legal remedy against the President’s decisions. Lastly, the trial court considered that no weight should be given to a judgment of the Greek Supreme Court (see paragraph 70 below) holding that the interpretation of domestic law was within the exclusive province of the national courts.

22. By a judgment of 20 May 2022 (V KOK 53/17) the trial court convicted Mr Gruevski, Mr Janakieski and Mr Trajkovski (application no. 81848/17) and sentenced them to terms of imprisonment ranging from three and a half to nine years. The court dismissed these applicants’ arguments related to the pardons, for the reasons indicated in paragraph 21 above.

(ii) Legislative Committee of Parliament (Законодавно-правна комисија на Собранието)

23. Two members of parliament requested that Parliament provide, under Article 68 of the Constitution, an authentic interpretation of section 11 of the 1993 Pardon Act. On 4 December 2019 the Legislative Committee (whose members were mostly from the political parties in power) held that the request was unjustified (не е оправдано), stating, inter alia, the following:

“... The Pardon Act was amended in 2009, in that section 11, which provided for the granting of a pardon in the absence of pardon proceedings, was repealed ...

In March 2016 the Constitutional Court struck down the 2009 Pardon Act entirely ... but [that action] is not tantamount to a restoration of section 11.

...

... it is noted that legal theory makes a distinction as to the legal effect of an annulment and a striking down of decisions. If a law is declared null and void (поништен), earlier provisions are restored. If the Constitutional Court adopts a decision declaring an act null and void, the derogative effect of the annulled law is stopped and the earlier law is restored.

It is undisputed that the decision of the Constitutional Court by which the 2009 Pardon Act was struck down ... did not revive section 11 of the 1993 Pardon Act. That means that the President of the Republic was [and is] not entitled, either at the time or now, to grant a pardon without conducting pardon proceedings under that provision.

All pardons of the President of the Republic based on section 11 of the 1993 Pardon Act ... after 2009 are unlawful and null and void.

In view of the above, the Legislative Committee ... has found that the request for an authentic interpretation ... is unjustified, since section 11 of the 1993 Pardon Act ... is no longer part of the legal order, which means that it is inapplicable. Accordingly, an authentic interpretation cannot be provided in respect of a statutory provision that does not exist ...”

(iii) Proceedings in relation to President I.’s accountability (impeachment proceedings)

24. On 13 April 2016 several members of parliament requested that impeachment proceedings be launched in respect of President I. in relation to the disputed pardons. As noted in a report of 6 June 2016 drawn up by a commission set up within Parliament to examine the request, it was alleged that the disputed pardons constituted an act of amnesty, which was within the exclusive competence of Parliament. Furthermore, the report asserted that the pardons were based on section 11 of the 1993 Pardon Act, which had not been in force at the time. Accordingly, it was asserted that the President had overstepped his authority and had violated several provisions of the Constitution. By six votes to four the commission held that the request was ill-founded and that President I. had not violated the Constitution or any laws.

25. At a plenary session on 21 June 2016 the Parliament rejected the request for impeachment proceedings in respect of President I. In accordance with Article 87 of the Constitution, the initiation of impeachment proceedings by Parliament requires a two-thirds majority of the 120 members of parliament. The final decision on the President’s accountability is taken by the Constitutional Court.

(d) Criminal proceedings against the applicants

(i) Common facts

26. Between 12 February and 8 June 2016 the SPO opened an investigation in respect of the applicants on suspicion that they had committed the offences described in paragraph 9 above.

27. On 15 May 2016, under section 304 of the Criminal Proceedings Act, the applicants sought the SPO’s discontinuance of the investigation on account of the President’s pardons. In the absence of a reply, on 18 May 2016 they addressed the Public Prosecutors Council (“the PPC”, Совет на Јавни Обвинители), complaining that the SPO had violated the law by failing to discontinue the investigation. In a subsequent submission to the PPC, they referred to a press conference on 3 June 2016 at which the SPO had confirmed that it had not discontinued the investigation. By a letter of 8 July 2016 the PPC informed the applicants that having regard to the President’s annulment decisions of 27 May and 7 June 2016, the SPO’s failure to dismiss the charges or discontinue the investigation had not violated their rights.

28. On 13 June 2016 the applicants asked that the trial court establish (under section 290 of the Criminal Proceedings Act, paragraph 57 below) that the SPO had violated the law, in that it had not discontinued the proceedings on account of the pardons granted to them. They relied on the above exchange with the PPC. By separate decisions issued between 24 February 2017 and 13 March 2019 a pre-trial judge of the trial court rejected those applications as belated, holding that the eight-day time-limit set out in section 290 of the Criminal Proceedings Act had started to run from 15 May 2016 and/or 3 June 2016. Those decisions were confirmed on appeal by a three-judge panel of the trial court, in decisions issued between 15 September 2017 and 11 April 2019.

29. Between 5 April and 30 June 2017 the SPO indicted the applicants (and others). In particular, the indictment against Ms Jankuloska and Mr Janakieski (application no. 11583/18) was lodged on 30 June 2017 and the indictment against Mr Mijalkov (application no. 30884/18) was lodged on 29 June 2017. Between 10 July and 24 August 2017 all the applicants objected to the bills of indictment. All the applicants, except Mr Temelko, relied on the pardons granted to them. They referred to Article 118 of the Constitution, the Convention and the Court’s case-law (reference was made to Lexa, cited above). They also argued that under the Convention, which certain applicants maintained was directly applicable, pardons were irrevocable and the 2016 Pardon Act and the annulment decisions could not retrospectively and adversely affect their right not to be prosecuted and tried for the crimes imputed to them, a right they had acquired on the basis of the pardons granted to them. Accordingly, the pardons were still in effect and any continuation of the proceedings in respect of the offences to which the pardons related would be in violation of Article 6 § 1 of the Convention. In separate decisions issued between 5 June and 7 December 2017 the trial court dismissed the objections related to the pardons concerning the applicants, for the reasons indicated in paragraph 20 above. By a decision of 28 December 2017 the trial court also dismissed, in a summary manner, objections by Ms Jankuloska, Mr Janakieski and Mr Temelko, among others, against the bills of indictment in the “Titanic 1” case (KOK-OOA 27/17).

(ii) Specific facts

(α) Facts relevant to application no. 77796/17 (Mr Taleski)

30. By a decision of 16 June 2016 a three-judge panel of the trial court replaced an earlier order for preventive measures in respect of Mr Taleski (he had been ordered to surrender his travel documents) with an order for house arrest. Mr Taleski’s house arrest, which was extended on two occasions and lasted from 21 June to 19 September 2016, was based on the risk of flight, the risk of an interference with the investigation, and the risk of reoffending. In oral submissions of 13 and 26 June 2016 regarding the initial order for his house arrest, Mr Taleski referred to the SPO’s failure to take into consideration the pardon in respect of him and to discontinue the investigation on that basis, without explicitly asking the court to declare his house arrest unlawful on those grounds. In an appeal against the orders extending his house arrest, the applicant made no reference to the pardon granted to him.

31. Mr Taleski’s application under section 290 of the Criminal Proceedings Act (see paragraphs 28 and 57) was rejected as out of time on 6 April 2017, a decision that was confirmed on appeal on 9 May 2017.

32. On 31 March 2020 Mr Taleski was convicted as charged and sentenced to eight years’ imprisonment. In the judgment (which runs to over 1,000 pages), the trial court, making reference to the 2016 Pardon Act and the annulment decisions by the President on 27 May 2016, dismissed Mr Taleski’s argument that the pardon granted to him had barred his prosecution. On 16, 20 and 21 July 2020 Mr Taleski initiated appeal proceedings challenging the trial court’s judgment, inter alia, on the basis that the pardon granted to him had been irrevocable, that the annulment decision relating to him had been retrospective, and that his prosecution and trial had been contrary to the Court’s case-law on the matter (reference was made to Lexa, cited above). On 31 August and on 1 and 2 September 2021 the Skopje Court of Appeal held a public hearing. No decision has been issued as yet.

(β) Facts relevant to applications nos. 80003/17 and 11583/18 (Mr Temelko, Ms Jankuloska and Mr Janakieski)

33. Mr Temelko was detained on remand from 26 September to 25 November 2017. On that latter date, for reasons related to his health, the trial court accepted an application by the applicant and replaced the order for his detention in prison with an order for his house arrest, which it subsequently extended on several occasions until 16 May 2018, when he was released. Upon making an appeal to a higher court, the applicant challenged the sole grounds for his detention, namely the risk of absconding. He did not rely on the pardon granted to him.

34. After Ms Jankuloska and Mr Janakieski had confessed to the crimes (while maintaining that they should not have been prosecuted because of the pardons), on 28 February 2022 the trial court sentenced them to two and a half and four and a half years’ imprisonment, respectively. The court did not comment on the pardons. Both applicants appealed against that judgment, relying on the President’s pardons. The appeal proceedings are still pending.

(γ) Facts relevant to application no. 81848/17 (Mr Gruevski, Mr Janakieski and Mr Trajkovski)

35. Between 8 and 11 November 2018 Mr Gruevski fled the country and to date he has not returned. After he had informed the public (through Facebook) that Hungary had granted him political asylum, a request for his extradition was sent to the Hungarian authorities, but to no avail. The criminal proceedings in question are being conducted in his absence. On 20 May 2022 the trial court gave a judgment (V KOK 53/17) in which it convicted the applicants and sentenced them to imprisonment (see paragraph 22 above). The applicants challenged the trial court’s judgment, arguing, inter alia, that the pardons granted to them had been irrevocable and that the annulment decisions had been retrospective (reference was made to Lexa, cited above). The appeal proceedings are still pending.

(δ) Facts relevant to application no. 30884/18 (Mr Mijalkov)

36. By a judgment of 23 July 2021 the trial court acquitted (ослободува од обвинение) Mr Mijalkov of the charges of inhuman and degrading treatment, for lack of evidence. The public prosecutor appealed against the judgment. On 18 October 2022 the Skopje Court of Appeal held a public hearing. It has not yet ruled on that appeal.

(ε) Facts relevant to application no. 81862/17 (Mr Jakimovski and Ms Jankuloska)

37. By a judgment of 2 July 2021 the trial court convicted Ms Jankuloska and Mr Jakimovski and sentenced them to four and six years’ imprisonment respectively (paragraph 21 above). Both applicants appealed against the trial court’s judgment. Ms Jankuloska argued that, inter alia, the trial court had had no competence to review the President’s decisions and declare the pardons null and void. She referred to several earlier decisions regarding the matter (see paragraphs 18-20 above) and submitted that the annulment of the pardons had been retrospective and in violation of the principle of the rule of law. Under “international legal principles”, a pardon was final and irrevocable. In his appeal, Mr Jakimovski did not refer to the pardon granted to him. On 7 March 2022 the Skopje Court of Appeal held a public hearing. As reported by media and alleged by the applicants, on 16 December 2022 the Court of Appeal quashed the trial court’s judgment for substantial procedural flaws and ordered reconsideration of the case by the lower court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. The 1991 Constitution

38. Article 52 § 4 of the Constitution provides that the law cannot have a retrospective effect, unless it is more favourable to citizens.

39. Under Article 68, Parliament, inter alia, enacts laws and provides an authentic interpretation of laws. It may also grant an amnesty (амнестија).

40. Article 84 § 1 (9) provides that the President may grant a pardon (помилување) in accordance with the law.

41. Under Article 98 § 2, courts are autonomous and independent. They make decisions on the basis of the Constitution, laws and international agreements ratified in accordance with the Constitution.

42. Article 108 of the Constitution provides that the Constitutional Court safeguards constitutionality and legality. Under Article 112 § 1, the Constitutional Court shall strike down (укине) or annul (поништи) a law if it is not in conformity with the Constitution.

43. Article 118 provides that international agreements ratified in accordance with the Constitution are part of the internal legal order and cannot be amended by law.

2. The Courts Act (Закон за судовите, Official Gazette nos. 58/06, 35/2008, 150/10, 83/18, 198/18 and 96/19)

44. Section 2 of the Courts Act provides that courts make decisions on the basis of the Constitution, laws and international agreements ratified in accordance with the Constitution. When applying a law, the courts are required to protect human rights and freedoms. The obligation on the courts to protect human rights and freedoms is reaffirmed in section 5(1) of the Courts Act.

45. Section 6(2) provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

46. Section 18 of the Courts Act provides that in the event that an issue pertaining to the constitutionality of a law is raised in proceedings pending before a court, that court can apply to the Constitutional Court to seek a constitutional review of that law. When a court considers that a law that is to be applied in a case is not in compliance with the Constitution and constitutional provisions cannot be applied directly, it will discontinue the proceedings until the Constitutional Court has made a decision on the matter. When a court considers that the application of a law in a specific case is in violation of an international agreement ratified in accordance with the Constitution, it will apply the international agreement if that agreement is directly applicable. The courts directly apply final and enforceable judgments of the Court, and they are bound by the Court’s opinion expressed in those judgments.

3. The Criminal Code (Кривичен Законик)

47. Under Article 114 of the Criminal Code, a pardon entails, inter alia, the exemption from prosecution of a specific individual (поименично определено лице).

4. The Pardon Acts (Закон за помилување)
   1. The 1993 Pardon Act (Official Gazette no. 20/93)

48. Section 1 of the 1993 Pardon Act provides that the President may grant pardons to specifically named persons for criminal offences set out in national laws, in accordance with the provisions of the Criminal Code and the 1993 Pardon Act. Under section 3, pardon proceedings for exemption from criminal prosecution can be initiated proprio motu at any stage of criminal proceedings. The initial wording of section 11 of the Act read as follows:

“The President of the State can grant pardons to individuals, exceptionally and without conducting pardon proceedings specified by this Act, when the interests of the State or specific circumstances pertaining to the person concerned and the criminal offence so require”.

49. By a decision of 15 September 1999 (U.br.144/1999) the Constitutional Court found section 11 compatible with the Constitution. On 21 March 2018 the Constitutional Court rejected a fresh application for a constitutional review of section 11 of the 1993 Pardon Act as res judicata, finding no grounds to depart from the reasons given in decision U.br.144/1999 (U.br.96/2016). In a joint dissenting opinion, two judges of the Constitutional Court considered that section 11 of the 1993 Pardon Act was no longer in force, given its repeal by the 2009 Pardon Act.

2. The 2009 Act amending the 1993 Pardon Act (“the 2009 Pardon Act”, Official Gazette no. 12/2009, 28 January 2009)

50. Section 10 of the 2009 Pardon Act repealed section 11 of 1993 Pardon Act.

51. By a decision of 16 March 2016 (U.br.19/2016), adopted by a majority, the Constitutional Court struck down (укинува) the 2009 Pardon Act as unconstitutional. In the decision, which mainly concerned how the 2009 Pardon Act made it impossible for pardons to be granted in respect of certain offences, the court held that the 2009 Pardon Act violated the principles of separation of powers and equality of citizens. The court stated, inter alia:

“a pardon ... is an irrevocable and final act of clemency by the President of the Republic, who does not make a decision as a judicial authority, but as a State body that has obtained its legitimacy from citizens through direct elections. A pardon is an undisputed constitutional and lawful right of the President which is at his disposal and can be used in accordance with the procedure specified by law and for reasons which are not necessarily of a legal nature (for example social, medical, political [reasons] or reasons of fairness) ... A pardon can be granted before the imposition of a sentence in the form of exemption from criminal prosecution, or after a final judgment and sentence have been given.”

3. The 2016 Act supplementing the 1993 Pardon Act (“the 2016 Act”, Official Gazette no. 99/2016, 20 May 2016)

52. The 2016 Pardon Act reads as follows:

Section 1

“In the Pardon Act (Official Gazette no. 20/1993), after section 11, a new section 11-a is added, which reads as follows:

Section 11-a

‘The President of the State can, within thirty days of the enactment of this law, declare a pardon granted without preliminary pardon proceedings null and void (поништи).

The President is not required to provide reasons for a decision given under subsection 1.

A person who has received a pardon is entitled to submit a request to the President of the State seeking the annulment of the pardon.

The President of the State is required to declare the [pardon] null and void within thirty days of a request under subsection 3 being submitted’”

Section 2

“This law enters into force on the day of its publication in the ‘Official Gazette of the Republic of Macedonia’”

53. As stated in the explanatory report of the 2016 Act, its aim was to “create a legal basis for the annulment of a pardon granted by President of the Republic without preliminary proceedings, within certain time-limits, and without the requirement to provide any reasons”.

54. In response to an application by a certain Z.S., on 27 November 2019 the Constitutional Court instituted proceedings to examine the constitutionality (поведува постапка за оценување на уставноста) of the 2016 Pardon Act. Referring, inter alia, to the judgment of this Court in Lexa (cited above) and to the comparative law “of several member States of the European Union, which were requested to provide an opinion”[3], the Constitutional Court indicated that a pardon granted by the President of the State was irrevocable and could not be annulled by a law or decision. In particular, it stated “the exceptional pardon granted ... proprio motu [under section 11 of the 1993 Pardon Act] is not dependent on the will of the person concerned ...”. Article 84 of the Constitution authorised the President to grant a pardon, but not revoke it. According to the court, there were grounds to suggest that the 2016 Pardon Act was in violation of the principle of the rule of law, legal certainty and equality of citizens.

55. On 18 November 2020 the Constitutional Court terminated the proceedings (се запира постапката) to assess the constitutionality of the 2016 Pardon Act. The relevant parts of the ruling read as follows:

“Taking into account sections 1 and 2 [of the 2016 Pardon Act], it is undisputed that the Act is legally effective for only thirty days after its publication, [meaning that] the actions provided for in the disputed Act can be taken only within thirty days of the date of its publication, namely 20 May 2016.

...

Under Rule 47 § 1 (3) of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia, the Constitutional Court shall terminate proceedings initiated on the basis of erroneous facts.

...

... the court has found that during the proceedings [before the Constitutional Court] the application of the disputed Act was extinguished owing to the temporary nature [of the Act] and that [the Act] can no longer have legal effect, which constitutes a procedural obstacle to the proceedings continuing.

Accordingly, the initiation of the proceedings [before the Constitutional Court] by the ruling of 27 November 2019, [which] did not take into account the temporary nature of the disputed Act, ... was based on erroneous facts ...” (U.br.163/2016)

5. The Criminal Proceedings Act (Official Gazette no. 150/2010)

56. Under section 288(1) of the Criminal Proceedings Act, a public prosecutor shall reject criminal charges if, inter alia, the criminal offence in question is subject to an amnesty or a pardon.

57. Under section 290, any person who believes that his or her rights have been violated by any action or measure taken in pre-investigation proceedings can challenge the legality of that action or measure before the pre-trial judge within eight days of learning about it. The person concerned will be entitled to seek legal protection of his or her rights by other means.

58. Section 304(1)(3) provides for a public prosecutor discontinuing an investigation (запирање на истражната постапка) if there are grounds that preclude a criminal prosecution.

59. Under section 337(1)(2), an indictment can be dismissed if there are grounds that exclude criminal liability.

60. Under section 402(1)(6), a court shall dismiss charges (одбивање на обвинението) if a defendant has been exempted from prosecution by an act of amnesty or a pardon, or if criminal prosecution is not possible owing to a statute of limitation, or if there are any other grounds that preclude criminal prosecution.

61. Section 463 provides that a person convicted by a final judgment and sentenced to imprisonment may request an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “an extraordinary review request”). Under section 464, the Supreme Court decides extraordinary review requests. Section 465, read in conjunction with section 416(1)(2) and (1)(3), provides that an extraordinary review request may be submitted in the event of a violation of the Criminal Code, namely if there are grounds for excluding a criminal prosecution, particularly on the basis of an act of amnesty or a pardon or if the matter was res judicata. Section 467, read in conjunction with sections 460 and 461, provides that if the request is well founded, the Supreme Court shall either overturn the final decision or quash, entirely or in part, the decisions of the trial court and the appellate court, or the appellate court’s decision alone, and refer the case back for a retrial or to the appellate court, or establish a violation itself.

6. The General Administrative Proceedings Act (Закон за Општата Управна Постапка, Official Gazette no. 124/2015)

62. Section 124(4) of the General Administrative Proceedings Act provides that an administrative decision can be declared null and void by the body that adopted it or by the relevant second-instance body. If there is no second-instance body, an administrative decision can be declared null and void by the supervisory body determined by law.

7. The Rules of the Constitutional Court (Деловник на Уставниот Суд)

63. Under Rule 69 of the Rules of the Constitutional Court, the court issues decisions (одлуки), rulings (решенија) and conclusions. Rule 70 § 1 (6) provides that the court issues decisions when it decides on the merits of a claim, namely when it reviews, inter alia, an Act’s compliance with the Constitution. Rule 71 § 1 (3) provides that it issues rulings when it does not decide on the merits, such as rulings rejecting an application. In accordance with Rule 78 §§ 2 and 3, decisions are published in the Official Gazette, while rulings are published only if the court so decides. Decisions become effective and enforceable (произведуваат правно дејство) from the date of their publication in the Official Gazette (Rule 79). The enforcement of final individual decisions issued on the basis of a law or regulation struck down by the court cannot be allowed, and if enforcement has already started it will be discontinued (Rule 80). Rule 81 provides that every person whose right is violated by a final individual decision based on a law or regulation declared null and void by the Constitutional Court is, within six months of the date of publication of the court’s decision in the Official Gazette, entitled to request that the competent body declare the final individual decision in question null and void.

8. Other rulings of the Constitutional Court

64. By a ruling of 5 October 2016 the Constitutional Court rejected an application lodged by two physical persons for a constitutional review of the pardons of 12 April 2016. The court noted that each pardon had identified individuals who had been exempted from prosecution. The individual rulings on the same date had specified the state of the criminal proceedings against each person concerned, the criminal offence(s) concerned and the applicable statutory provision. Making reference to the annulment decisions of 27 May and 7 June 2016 (paragraph 17 above), the court found that the pardons “were not part of the legal order”, that is, “they [had] ceased to exist” and that accordingly there were procedural obstacles to reviewing their constitutionality and legality (U.br.95/2016). The court reiterated those findings in a ruling of 14 October 2020 following a further application by a physical person for a constitutional review of the pardons of 12 April 2016 (U.br.122/2016).

65. The Government submitted copies of several rulings in which the Constitutional Court had rejected applications for constitutional reviews where it had found that such applications aimed to restore provisions repealed by the disputed normative acts. In the rulings, the court held that it did not have regulatory competence (законодавна функција) to create provisions, nor was it competent to restore statutory provisions repealed by a subsequent law. It also added that a repealing provision did not regulate matters and accordingly was not suitable for constitutional review (U.br.254/2001; U.br. 44/2003; U.br.166/2003; U.br.198/2007; U.br.163/2008; U.br.200/2008; U.br.24/2011; U.br.97/2011; U.br.154/2011; U.br.156/2011; U.br.85/2012; U.br.176/2012; U.br.7/2015; U.br.45/2018 and U.br.59/2021).

9. Earlier pardons granted under section 11 of the 1993 Pardon Act

66. On 7 April 2003, relying on section 11 of the 1993 Pardon Act and Article 114 of the Criminal Code, the then President of the respondent State, in the absence of pardon proceedings, granted pardons exempting two individuals (a former minister and a high-ranking official in the Ministry of the Interior) from criminal prosecution. By a ruling of 9 July 2003 the Constitutional Court rejected an application against those pardons, holding that they concerned specific individuals and were therefore not suitable for constitutional review. The court also added that a pardon could entail exemption from prosecution and could be granted at any stage of criminal proceedings (U.br.81/2003).

67. On 2 August 2008 the then President of the respondent State, in the absence of pardon proceedings, granted a pardon exempting six people (including Mr Z.Z., see paragraph 18 above) from criminal prosecution.

68. Initiatives by members of parliament to bring impeachment proceedings against both of the above-mentioned Presidents in relation to the pardons granted in 2003 and 2008 were to no avail.

10. Relevant judgments of the trial court

69. The applicants submitted copies of three judgments issued between 8 March 2019 and 29 September 2020 in which the trial court had not dealt with the legality of the pardons of 12 April 2016 granted to certain defendants, including some of the applicants (KOK 62/2017; K.br.1904/16 and KOK-30/2017).

11. Judgment of the Greek Supreme Court (no. 839/2018)

70. By a judgment of 18 May 2018 the Greek Supreme Court refused a request to extradite to North Macedonia two Macedonians/citizens of the Republic of North Macedonia (employees of the Directorate of Security and Counterintelligence of the respondent State at the time, not applicants before the Court) who had been granted pardons on 12 April 2016 and had subsequently been charged with criminal conspiracy, abuse of power and forgery. The Greek Supreme Court held that the pardons, “[granted] for reasons that served the interests of the State ... and [tantamount] to the termination of the criminal proceedings ... in respect of the offences referred to in [the pardons]”, had been irrevocable once granted. Referring to their subsequent annulment under the 2016 Pardon Act, the court held that any fresh prosecution or continuation of an earlier prosecution for the offences in question would have led to an “inadmissible” and “retrospective application of a less favourable law”.

COMPLAINTS

71. Mr Taleski (application no. 77796/17) and Mr Temelko (application no. 80003/17) complained under Article 5 § 1 (c) of the Convention that the pre-trial detention ordered in the context of the criminal proceedings concerning the alleged offences covered by the pardons of 12 April 2016 had been arbitrary and not in accordance with the law.

72. Under Article 6 § 1 of the Convention, all applicants (except Mr Temelko) complained that their prosecution and the criminal proceedings against them following the pardons of 12 April 2016 were not permissible and were in violation of the principle of the rule of law, incorporated in all Articles of the Convention, including Article 6. All applicants alleged that the annulment decisions had had a retrospective effect and had been in violation of the principle of legal certainty, embodied in both the Constitution of the respondent State and the Convention.

THE LAW

1. JOINDER OF THE APPLICATIONS

73. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

2. ALLEGED VIOLATION OF ARTICLES 5 AND 6 OF THE CONVENTION

74. Mr Taleski (application no. 77796/17) and Mr Temelko (application no. 80003/17) complained under Article 5 § 1 (c) of the Convention that the pre-trial detention ordered in the context of the criminal proceedings concerning the alleged offences covered by the pardons of 12 April 2016 had been arbitrary and unlawful. Under Article 6 § 1 of the Convention, all applicants (except Mr Temelko) complained that their prosecution and the criminal proceedings against them following the pardons of 12 April 2016 were not permissible and were in violation of the principle of the rule of law, incorporated in all Articles of the Convention, including Article 6. All applicants alleged that the annulment decisions had had a retrospective effect and had been in violation of the principle of legal certainty. Articles 5 and 6, in so far as relevant, read as follows:

Article 5 § 1 (c)

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties’ submissions
   1. The Government

75. The Government submitted that the complaint of Mr Taleski (application no. 77796/17) under Article 5 of the Convention had been lodged more than six months after 19 September 2016, the date when his house arrest had ended. His application under section 290 of the Criminal Proceedings Act (paragraphs 31 and 57 above) could not be regarded as an effective remedy for his complaint under this head, since it had predated his house arrest; it had concerned the SPO’s failure to discontinue the investigation in the light of the purported pardon granted to him, and accordingly had had nothing to do with his house arrest. In any event, that application had been rejected as out of time. Furthermore, in his appeals against the orders extending his house arrest, “the purported pardon [had] not [been] clearly and squarely identified as a basis on which [he had] challenged his detention ... His lawyer [had only] made a passing oral reference to the purported pardon at the appeal hearing on 27 June 2016”. Accordingly, his complaint under this head was inadmissible because it had been submitted outside the six-month time-limit and there had been a failure to exhaust domestic remedies.

76. In the appeals against his detention, Mr Temelko (application no. 80003/17) had not advanced any argument that the purported pardons had rendered his detention unlawful. The domestic courts had not been required to take the pardons into account proprio motu. He had therefore failed to exhaust the available domestic remedies.

77. The Article 6 complaints of Mr Taleski (application no. 77796/17); Mr Gruevski, Mr Janakieski and Mr Trajkovski (application no. 81848/17); Mr Jakimovski and Ms Jankuloska (application no. 81862/17); Ms Jankuloska and Mr Janakieski (application no. 11583/18); and Mr Mijalkov (application no. 30884/18) should be rejected, since the criminal proceedings had not yet ended and it was open to those applicants to advance arguments based on the purported pardons and contend that the charges against them should be dismissed on that basis. The Government referred to section 402(1)(6) of the Criminal Proceedings Act, which provided for the dismissal of charges where a defendant had been exempted from prosecution by a pardon (paragraph 60 above). The applicants could also avail themselves of an extraordinary review request before the Supreme Court, in so far as the criteria related to its jurisdiction set out in the Criminal Proceedings Act were met (paragraph 61 above). The criminal proceedings provided an avenue through which the applicants could seek findings to the effect that they should not have been prosecuted. If the domestic courts found in their favour, it would be open to the applicants to seek pecuniary compensation.

In the alternative, applications nos. 11583/18 (Ms Jankuloska and Mr Janakieski) and 30884/18 (Mr Mijalkov) should be rejected because they had been submitted outside the six-month time-limit, which, in respect of those applicants, had started to run from the date on which the indictments against them had been lodged (paragraph 29 above). This was so because these applicants should have been aware of the outcome of Mr Talevski’s objection to the indictment against him, where the issue of the disputed pardons had been decided for the first time by the reviewing panel of the trial court. Mr Taleski’s objection had been dismissed on 5 June 2017; from that point in time, Ms Jankuloska, Mr Janakieski and Mr Mijalkov should have been aware that an objection addressed to the reviewing panel did not represent an effective remedy as regards the pardons.

2. The applicants

78. Mr Taleski submitted that his application under section 290 of the Criminal Proceedings Act, although not directly related to his detention, was decisive for his grievances under Article 5 of the Convention. It concerned the SPO’s failure to discontinue the investigation as required under section 304 of the Criminal Proceedings Act (paragraph 58 above). The court had wrongly rejected that application; however, had it been accepted, there would have been no legal grounds for his detention. In any event, he had relied on the pardon granted to him in his oral pleadings in the review proceedings regarding his detention (paragraph 30 above).

79. Mr Temelko agreed that he had not challenged his detention on the basis of the pardon granted to him. However, the pardon granted to him had been published in the Official Gazette and had had erga omnes binding effect; it had been “mentioned in the objection to the indictment [submitted] several months before”. Accordingly, the court had been required to take into consideration proprio motu the existence of any circumstances precluding the criminal prosecution.

80. According to the applicants, the criminal proceedings pending against them should not be considered relevant, since their grievances under Article 6 of the Convention were not about the trials, but about being tried. The objections to the indictments, which the applicants had used and which could have led to the discontinuance of the proceedings (see paragraphs 29 and 59 above), had been the only effective remedies they had been required to exhaust. The reference to section 402(1)(6) of the Criminal Proceedings Act was inappropriate, as that provision concerned pardons granted after the approval of an indictment and the commencement of a trial. In any event, given the trial court’s judgment of 2 July 2021 in respect of Ms Jankuloska and Mr Jakimovski (see paragraph 21 above), it was “unrealistic to expect a different practice” in relation to the other applicants. Referring to that judgment and relying on the rules of administrative proceedings (see paragraph 62 above), the applicants submitted that “the trial court [had not been] authorised to declare the disputed pardons null and void” and that only Parliament had such competence, given the fact that there was no superior body in respect of the President of the State. They further stated that “there [had been] no remedy to test or revoke [the pardons] and all criminal proceedings should have been discontinued ex lege”, as provided for in national law (see paragraphs 41, 56, 58 and 59 above) and confirmed in domestic practice (reference was made to the discontinuance of the proceedings against Mr Z.Z. after he had been pardoned, see paragraph 18 above). Ms Jankuloska, Mr Janakieski and Mr Mijalkov (applications nos. 11583/18 and 30884/18) also contested the Government’s arguments described in paragraph 77 above in fine regarding the alleged delay in their applications.

3. Other submissions by the parties

81. In their submissions, both parties referred extensively to domestic practice and law, the views of the domestic legal community and legal theory, and submitted diverging arguments regarding the validity and legal effect of the pardons and annulment decisions – whether the pardons, in so far as they had in any way been based on an existing legal basis, had been irrevocable, and whether the annulment decisions had been incompatible with the principles of the rule of law and legal certainty. As regards the latter, they disаgreed on the question of whether the annulment decisions had provided for the retrospective annulment of the applicants’ acquired right not to be prosecuted in relation to the offences specified in the pardons and the related rulings. The parties further disagreed about the legal effect of Mr Gruevski’s and Mr Taleski’s requests for annulment of the pardons granted to them.

4. Joint submissions by the Helsinki Committee for Human Rights and the “Foundation Open Society – Macedonia” (“the third-party interveners”)

82. The third-party interveners submitted that they had been targeted by VMRO-DPMNE, the then ruling party, owing to their human rights activities and involvement (Helsinki Committee for Human Rights) in the “Colourful Revolution” at the time (see paragraph 14 above). It was also alleged that members of the Helsinki Committee for Human Rights had been the victims of the illegal wiretapping. The unlawful covert recordings by high-ranking State officials from the ruling party at the time led to massive human rights violations of over 20,000 citizens. The third-party interveners maintained that the pardons had been void ab initio. They had been issued by the President on his own motion and had failed to meet the criteria established by the Court. Furthermore, the 2016 Pardon Act was the only legal avenue to correct the abuse of power and restore the principle of the rule of law and legal certainty. “Otherwise the country was on the verge of a political civil war”.

2. The Court’s assessment
   1. Scope of the case in view of the applicants’ complaints

83. The Court considers it important to set out the relevant context for examining the applicants’ complaints, and reiterates that their grievances concern their prosecution and pre-trial detention notwithstanding the President’s pardons of 12 April 2016 (see paragraph 12 above). According to the applicants, their prosecution and the criminal proceedings pending against them were in violation of the principle of the rule of law embodied in Article 6 of the Convention. This was because the pardons had been irrevocable and their subsequent annulment had not been in compliance with the Constitution and the Convention, in that it had been in violation of the principle of legal certainty. On the same grounds, Mr Taleski and Mr Temelko complained that the pardons in question had rendered their pre-trial detention ordered in relation to the “Transporter” and “Titanic I” cases respectively unlawful within the meaning of Article 5 § 1 of the Convention. In this context, the Court will examine whether the applications satisfy the admissibility criteria set out in Article 35 of the Convention.

2. Preliminary remark regarding the Government’s admissibility pleas

84. The Government contended that the applicants had failed to exhaust available domestic remedies and to comply with the six-month rule within the meaning of Article 35 § 1 of the Convention.

85. The relevant Convention principles regarding non-exhaustion have been summarised in the Court’s judgment in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014)). In particular, to be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (ibid., § 74). The relevant general principles regarding the purpose of the six‑month rule set out in Article 35 § 1 of the Convention and the calculation of the six-month time-limit in view of the effectiveness of remedies used have been outlined in Jeronovičs v. Latvia ([GC], no. 44898/10, §§ 74 and 75, ECHR 2016).

86. Before the Court examines the pleas submitted by the Government, it considers it important to note the following. As stated above, the applicants argued that the President’s pardons of 12 April 2016 had been irrevocable and that their subsequent annulment had had a retrospective effect and had been in violation of the principle of legal certainty, and accordingly in breach of the Constitution and the Convention. Having regard to the available material and the parties’ submissions, it is undisputed that by separate decisions of 27 May and 7 June 2016, President I. declared his earlier pardons null and void. Those annulment decisions were based on the 2016 Pardon Act (see paragraph 17 above), which conferred on him an express power to annul pardons granted in the absence of prior pardon proceedings, such as the pardons in question (see paragraph 52 above). The fact that the President’s pardons of 12 April 2016 did not remain in force following the annulment decisions of 27 May and 7 June 2016, as a matter of domestic law, was established by the Constitutional Court as early as 5 October 2016, and subsequently confirmed by the same court on 14 October 2020. In those rulings, the Constitutional Court held that the pardons “were not part of the legal order” in that “they [had] ceased to exist” because of the annulment decisions (see paragraph 64 above). Accordingly, as a matter of fact and in terms of domestic law, the Constitutional Court established that the annulment decisions had removed the pardons from the domestic legal order. In doing so, the court did not, however, pronounce on the question of whether the annulment decisions in question had been in compliance with the Constitution or whether and how they had affected the rights of the persons concerned.

87. The Court further observes that the issue of the constitutionality of the 2016 Pardon Act, on which the annulment decisions were based, was raised before the Constitutional Court, which has exclusive competence to review the constitutionality of Acts and regulations (see paragraphs 42 and 46 above). In a ruling of 27 November 2019 the Constitutional Court expressed certain concerns that the Act in question was in violation of the Constitution and the principles of the rule of law, legal certainty and equality of citizens (see paragraph 54 above). However, the court did not reach any final conclusion on the merits and discontinued the proceedings on procedural grounds, holding that its earlier ruling had not taken into account the fact that “the application of the disputed Act [had been] extinguished owing to the temporary nature [of the Act] and that [the Act could] no longer have legal effect” (see paragraph 55 above).

88. The Court cannot speculate as to what the outcome of the proceedings before the Constitutional Court would have been had that court been asked to assess the constitutionality of the 2016 Pardon Act while it had temporarily been valid. However, and notwithstanding the fact that it appears that the President’s pardons were not subject to any direct review (see paragraphs 21, 51, 66 and 80 above), the Court notes the legal consequences which a decision of that court declaring a law unconstitutional entails for any final individual decision adopted on the basis of such a law (see paragraph 63 above). In any event, it reiterates that under Rule 55 of the Rules of Court and the Court’s case-law (see Mooren v. Germany [GC], no. 11364/03, §§ 57-59, ECHR 2009), a plea of inadmissibility on account of non-exhaustion of domestic remedies is subject to the rule of estoppel. Since the Government’s plea of non-exhaustion did not concern that particular remedy, the Court cannot examine of its own motion whether an application for constitutional review of the 2016 Pardon Act, if considered by the Constitutional Court while that Act had temporarily been valid, would have been an effective remedy for the applicants’ complaints before the Court (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 122, 9 December 2010; Djavit An v. Turkey, no. 20652/92, § 35, ECHR 2003-III; and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 35, Series A no. 301-‑B).

89. The Court will therefore turn to the Government’s inadmissibility pleas.

3. The complaints under Article 5 as to whether the pre-trial detention of Mr Taleski and Mr Temelko was in accordance with the law, on account of the pardons of 12 April 2016

(a) Mr Taleski (application no. 77796/17)

90. The Court notes that in the light of the criminal proceedings in the “Transporter” case (see paragraph 9 above), on 21 June 2016 Mr Taleski was placed under house arrest. The Court does not find it necessary to examine whether, in the review proceedings regarding his house arrest (see paragraph 30 above), Mr Taleski raised, at least in substance, the argument that the pardon granted to him on 12 April 2016 rendered his house arrest unlawful. This is so because those proceedings ended with Mr Taleski’s release on 19 September 2016, which was more than six months before he lodged the application with the Court, namely on 3 November 2017.

91. On the other hand, Mr Taleski argued that his application under section 290 of the Criminal Proceedings Act was decisive for the admissibility of his complaint under Article 5. In this connection, the Court notes that, as argued by the Government and not disputed by the applicant, the application in question did not directly concern his house arrest, but challenged the SPO’s failure to discontinue the investigation on the basis of the pardon granted to him. That action aimed to provide Mr Taleski with a judicial declaration that such a failure had been unlawful and in violation of his rights (see paragraph 57 above). The Court notes that the proceedings regarding that remedy ended on 9 May 2017 and could not have led to Mr Taleski’s release, since he had already been set free. Even assuming that such a declaration could be relied on in any subsequent proceedings aimed at providing Mr Taleski with ex post facto redress for his house arrest, the Court notes that the domestic courts at two levels of jurisdiction rejected the application as out of time (see paragraph 31 above). Having regard to the information before it and considering that it has only limited power to deal with alleged errors of fact or law committed by national courts (see Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998‑II, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I), the Court considers that it cannot substitute its view for that of the national courts, which, in the absence of any convincing argument to the contrary, does not appear unreasonable or manifestly arbitrary. Consequently, the applicant failed to exhaust that remedy in compliance with the formal requirements laid down in the domestic law.

92. Accordingly, this complaint must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b) Mr Temelko (application no. 80003/17)

93. The Court notes that as a result of the criminal proceedings in the “Titanic 1” case (see paragraph 9 above), Mr Temelko was deprived of his liberty between 26 September 2017 and 16 May 2018 (detention in prison and house arrest, see paragraph 33 above). The applicant challenged his detention through the two-tier system of judicial review, which is to be regarded, in principle, as an effective remedy as regards pre-trial detention (see Vasilkoski and Others v. the former Yugoslav Republic of Macedonia, no. 28169/08, § 45, 28 October 2010). In those proceedings, Mr Temelko made complaints and submissions asserting that there was no flight risk – the sole ground relied on by the courts to justify his detention. However, as the applicant confirmed (see paragraph 79 above), in those proceedings he did not argue that his detention was not permitted because of the pardon granted to him. Furthermore, there is nothing in the available material to confirm that he raised such an argument in the objection to the indictment against him (see paragraph 29 above). On the other hand, the Court does not consider that the trial court, as the court which was to decide on the applicant’s pre-trial detention, could have been unaware of the pardons and the accompanying rulings, including those concerning Mr Temelko, as the pardons were published in the Official Gazette and the rulings were submitted to the trial court by President I. (see paragraph 12 above). In this connection, the overall context in which those decisions were adopted and the public attention they received at the time (see paragraphs 14-16 above) are of further relevance. Mr Temelko asserted that the domestic courts had been required to examine proprio motu whether there had been any grounds precluding the criminal prosecution which would have rendered his detention unlawful. The Court notes the examples of domestic practice in which the courts considered that issue of their own motion, in particular the trial court’s decision KOK PP 105/16; that decision was issued following the SPO’s application for preventive measures, an application which aimed to ensure the suspects’ presence at trial, as did Mr Temelko’s pre-trial detention (see paragraphs 18 and 19 above). The domestic courts might have been able to or even obliged to review of their own motion the lawfulness of Mr Temelko’s pre-trial detention on account of the pardon granted to him; however, that fact cannot be regarded as having dispensed him from relying on the Convention before those courts or from advancing arguments to the same or similar effect before them, thus giving the courts the opportunity to redress the alleged breach in the first place (see Van Oosterwijck v. Belgium, 6 November 1980, § 39, Series A no. 40, and Gaziyev v. Azerbaijan, (dec.) no. 2758/05, 7 July 2009). The applicant did not submit any argument casting doubt on the effectiveness of that avenue of redress at the time for grievances under this head.

94. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The complaint under Article 6 (Mr Taleski (application no. 77796/17); Mr Gruevski, Mr Janakieski and Mr Trajkovski (application no. 81848/17); Mr Jakimovski and Ms Jankuloska (application no. 81862/17); Ms Jankuloska and Mr Janakieski (application no. 11583/18); and Mr Mijalkov (application no. 30884/18))

Non-exhaustion of domestic remedies

95. The Government argued that the applicants’ complaint under this head was inadmissible, in view of the fact that criminal proceedings were pending before the courts. Whether the pending criminal proceedings in the present case satisfy the criteria of effectiveness (see paragraph 85 above) depends on the respondent State’s legal system in which the remedies operate and the relevant courts’ scope of jurisdiction.

96. Having regard to the facts of the case and the parties’ submissions, it is undisputed that both parties regarded the domestic proceedings concerning the determination of the criminal charges against the applicants effective in relation to their grievances under Article 6 of the Convention. Whereas the applicants claimed that the proceedings regarding the indictments were the only effective remedy for the complaint under this head, the Government maintained that the applicants could still rely on the pardons granted to them and seek dismissal of the charges on those grounds in the pending criminal proceedings. In the event that the charges were dismissed on those grounds, the applicants could seek monetary redress (see paragraph 77 above).

97. The Court notes that the proceedings relied on by the applicants, namely objections to the indictments, were a legal avenue through which a judicial authority was first asked to pronounce on the effect of the President’s pardons on the applicants’ criminal prosecution. In this connection, the Court notes that under section 337(1)(2) of the Criminal Proceedings Act, the trial court had jurisdiction to dismiss an indictment if there were grounds that excluded criminal liability, such as the President’s pardons in the applicants’ case (see paragraph 59 above). The applicants’ earlier unsuccessful attempt under section 304 of the same Act to have the investigation discontinued on the basis of the pardons granted to them had been directed at the prosecuting authorities (see paragraphs 27 and 58 above). In the proceedings regarding the indictments, the trial court dismissed the applicants’ objections, holding that the President’s annulment decisions of 27 May 2016 had been valid and that, consequently, the pardons granted to the applicants concerned were no longer in force (see paragraph 20 above). Although the trial court did not refer to the Constitutional Court’s ruling of 5 October 2016 (approach confirmed in the ruling of 14 October 2020) in its decisions, its findings of fact based on the domestic law were in line with those rulings (see paragraph 64 above).

98. The trial court subsequently relied on similar considerations in the criminal proceedings concerning the substance of the criminal charges against certain applicants. In its judgment of 31 March 2020 the trial court, making reference to the 2016 Pardon Act and the President’s annulment decisions of 27 May 2016, dismissed Mr Taleski’s argument pertaining to the pardons of 12 April 2016 (see paragraph 32 above). As regards the judgments of 2 July 2021 and 20 May 2022, although the trial court pronounced on the legal validity of the President’s pardons of 12 April 2016, as a matter of domestic law, it nevertheless ultimately accepted that the President had lawfully annulled the pardons in May 2016 (see paragraphs 21 and 22 above). By its judgment of 23 July 2021 the trial court acquitted Mr Mijalkov for lack of evidence (see paragraph 36 above). In the judgment of 28 February 2022, issued on account of the confession of Mr Janakieski and Ms Jankuloska, the trial court did not comment on the pardons concerning these applicants (see paragraph 34 above). The trial court has yet to pronounce on the substance of the criminal charges in respect of Mr Temelko.

99. As regards the above judgments, the Court cannot but note that besides establishing (or reiterating, having regard to the earlier rulings of the Constitutional Court on the matter) that, as a matter of domestic law, the President’s pardons were no longer in force, the trial court did not deal with the applicants’ arguments that their continuing prosecution and trial notwithstanding the pardons were in violation of their Convention rights. In this connection, the Court observes that the applicants explicitly relied on the Convention and the Court’s case-law in their objections against the bills of indictment. They maintained that the 2016 Pardon Act and the annulment decisions could not retrospectively and adversely affect their right not to be prosecuted and tried for the crimes imputed to them which they had acquired through the pardons granted to them. They further argued that any continuation of the proceedings in respect of the offences to which the pardons related would be in violation of Article 6 § 1 of the Convention (see paragraph 29 above).

100. Furthermore, in his appeal against the trial court’s judgment of 31 March 2020 Mr Taleski complained that the pardon granted to him had been irrevocable, that the annulment decision relating to him had had a retrospective effect, and that his prosecution and trial had been contrary to the Court’s case-law on the matter (see paragraph 32 above). Ms Jankuloska, Mr Janakieski, Mr Gruevski and Mr Trajkovski challenged the trial court’s judgments of 2 July 2021, 28 February and 20 May 2022 on similar grounds, invoking the Court’s case-law and “international legal principles” (see paragraphs 34, 35 and 37 above). The Skopje Court of Appeal has not yet ruled on those appeals, except, apparently, in Fortress case (see paragraph 37 above).

101. The Court notes that under Article 118 of the Constitution (see paragraph 43 above), the Convention has been part of the domestic legal order of the respondent State since it was ratified on 10 April 1997. Under Article 98 of the Constitution, the domestic courts make decisions on the basis of, inter alia, international agreements ratified in accordance with the Constitution, such as the Convention (see paragraph 41 above). The Courts Act, as the lex generalis, provides further rules relevant for the Convention’s position in the domestic legal order and the jurisdiction of ordinary courts in this regard (see paragraphs 44-46 above). The Courts Act clearly provides that the courts protect human rights and freedoms, including the right to a fair trial under Article 6 of the Convention (sections 2-6 of the Courts Act). Furthermore, it specifies that in the event of a conflict, international agreements ratified in accordance with the Constitution take precedence over Acts of the respondent State. Lastly, it provides that the courts directly apply final and enforceable judgments of the Court and are bound by the Court’s opinion expressed in those judgments (section 18 of the Courts Act). In such circumstances, the Court considers that quite apart from examining issues of constitutionality and legality under the domestic law, the criminal courts may directly apply the Convention and examine whether the manner in which the President exercised the powers relating to pardons conferred on him by the domestic law interfered with the applicants’ rights under Article 6 of the Convention. Such an examination should be comprehensive and include all aspects under Article 6 of the Convention relevant for the determination of the criminal charges against the applicants.

102. Relying on the Criminal Proceedings Act, the Government submitted that the criminal proceedings against the applicants which were pending at various levels of jurisdiction provided an effective avenue through which they could still seek findings to the effect that they should not have been prosecuted because they had been granted pardons. They referred to section 402(1)(6) of that Act, which provides for the dismissal of charges in the event that a defendant has been exempted from prosecution by a pardon (see paragraph 60 above). The applicants did not provide any example of domestic practice in support of their counterarguments that that provision did not apply to the circumstances of the case (see paragraph 80 above). In addition, the existence of grounds excluding criminal prosecution is also expressly listed in the Criminal Proceedings Act as one of the grounds for lodging an extraordinary review request with the Supreme Court. Having regard to the Supreme Court’s jurisdiction and its potential consequences for a person’s conviction or sentencing by lower courts, a matter which may have a direct and serious impact on the determination of a criminal charge (see paragraph 61 above), the Court has already found that that remedy forms part of the well-established procedural safeguards which can be regarded as an effective remedy for Article 6 complaints when such complaints are admissible (see Mamudovski v. the former Yugoslav Republic of Macedonia no. 49619/06, 10 March 2009). Furthermore, the fact that Mr Taleski, Ms Jankuloska, Mr Janakieski, Mr Gruevski and Mr Trajkovski raised the allegations under this head in their appeals against the trial court’s judgments suggests that they also considered that that avenue of redress offered reasonable prospects of success (see paragraphs 32, 34, 35 and 37 above). In view of the fact that it is in the interests of the applicants and the efficacy of the Convention system that the domestic authorities, which are best placed to do so, act to put right any alleged breaches of the Convention (see, mutatis mutandis, Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, § 102, 26 February 2013), the Court considers that the applicants’ complaints under this head are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 16 February 2023.

Hasan Bakırcı Arnfinn Bårdsen
Registrar President

Appendix

List of cases:

[1] After the SPO had withdrawn the charges, on 20 January 2017 the trial court discontinued the proceedings (KOK 60/16).

[2] In the same judgment, Mr Mijalkov was convicted and sentenced to twelve years’ imprisonment for organising the unlawful surveillance and instigating the destruction of equipment with a view to concealing evidence of such surveillance.

[3] In the decision, the Constitutional Court referred to the rules of pardon in the Netherlands, Croatia, Slovakia, the Czech Republic, Lithuania, Latvia, Slovenia, Serbia, Bosnia and Herzegovina, Finland, Luxembourg and Kosovo (all references to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nation’s Security Council Resolution 1244 and without prejudice to the status of Kosovo).