CEDH · CASELAW;CLIN;ENG — 24 janvier 2023

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North Macedonia (dec.) - 77796/17, 80003/17, 81848/17 et al. Decision 24.1.2023 [Section II] Article 35 Article 35-1 Exhaustion of domestic remedies Complaints regarding prosecution despite presidential pardons, later annulled, premature in view of pending criminal proceedings in which they could be examined: inadmissible Facts – The applicants, all former high-ranking officials in the respondent State, were subject to criminal prosecution and pre-trial detention for a number of alleged crimes, stemming from the content of unlawful covert recording of telephone conversations whilst they were in power. They were granted presidential pardons in relation to the alleged offences, which were subsequently annulled by the President. The applicants complaints concern their pre-trial detention and prosecution notwithstanding the pardons. In this respect they alleged that the annulment decisions had had a retrospective effect and had been in violation of the principle of legal certainty. Law – Preliminary remark – The President had declared his earlier pardons null and void on the basis of the 2016 Pardon Act. As a matter of fact and in terms of domestic law, the Constitutional Court had established that the pardons had been removed from the domestic legal order because of the annulment decisions. Despite the issue of the constitutionality of that Act being raised before the Constitutional Court the merits had not been ruled upon and the proceedings had been discontinued on procedural grounds. However, and notwithstanding the fact that the pardons had not been subjected to any direct review, the Court noted that the legal consequence of the Constitutional Court declaring a law unconstitutional for any final individual decision adopted on the basis of such a law, entailed that decision being declared null and void. Since the Government’s plea of non-exhaustion had not concerned that particular remedy, the Court could not 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. Article 6 § 1 (applications nos. 77796/17, 81848/17, 81862/17, 11583/18 and 30884/18):   It was undisputed that the domestic proceedings concerning the criminal charges against the applicants had been effective in relation to their grievances under Article 6. The proceedings relied on by the applicants, namely objections to the indictments, had been a legal avenue through which a judicial authority had been first asked to pronounce on the effect of the President’s pardons on the applicants’ criminal prosecution. In this connection, the trial court had had jurisdiction to dismiss an indictment if there were grounds that excluded criminal liability, such as the pardons in the applicants’ case. In both the proceedings regarding the indictments and the substance of the criminal charges, the trial court had established that the pardons were no longer in force, but had not dealt with the applicants’ arguments that their continuing prosecution and trial, notwithstanding the pardons, had been in violation of their Convention rights – as was possible under domestic law. Apart from examining issues of constitutionality and legality, the criminal courts might directly apply the Convention and examine whether the manner in which the President had exercised the powers relating to pardons conferred on him by the domestic law had interfered with the applicants’ rights under Article 6. Such an examination should be comprehensive and include all aspects of that provision relevant for the determination of the criminal charges against the applicants. However, under 402(1)(6) of the Criminal Proceedings Act criminal charges could be dismissed in the event that a defendant had been exempted from prosecution by a pardon. The Government had submitted that the pending criminal proceedings against the applicants had provided an effective avenue for them to seek a finding to the effect that they should not have been prosecuted because they had been granted pardons. The applicants had not put forward any example of domestic practice in support of their counterarguments that the above provision did not apply in their cases. In addition, the existence of grounds excluding criminal prosecution was also a ground under that Act for lodging an extraordinary review request with the Supreme Court – a well-established procedural safeguard which could be regarded as an effective remedy for Article 6 complaints when such complaints were admissible. Furthermore, the fact that most of the applicants concerned had raised the allegations under this head in their appeals suggested that they had also considered that that avenue of redress offered reasonable prospects of success. It was in the interests of the applicants and the efficacy of the Convention system that the domestic authorities, which were best placed to do so, acted to put right any alleged breaches of the Convention. Accordingly, the applicants’ complaints under this head were premature. Conclusion : inadmissible (non-exhaustion of domestic remedies). The Court also declared inadmissible for failure to exhaust domestic remedies the complaints made under Article 5 § 1 by the applicants in applications nos. 77796/17 and 80003/17 concerning their pre-trial detention.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .