CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 janvier 2023

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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. 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. 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 ...” 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 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. 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. 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 ). The Pardon Acts ( Закон за помилување ) 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. 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