Background
The three applicants — a former mayor and two former government and party officials in North Macedonia, all members of the then-ruling VMRO-DPMNE party — received presidential pardons in April 2016 exempting them from criminal prosecution for offences including abuse of official position and electoral crimes. Those pardons were purportedly issued under section 11 of the 1993 Pardon Act, which had in fact been repealed by a 2009 amendment. Although the Constitutional Court struck down the 2009 amending act in March 2016, Parliament’s Legislative Committee later confirmed that the striking down did not revive section 11, meaning that provision had not formed part of the legal order at the time the pardons were issued.
In May 2016, Parliament enacted the 2016 Pardon Act, which gave the President a 30-day window to annul pardons granted without the required preliminary proceedings. The President used that power to revoke the applicants’ pardons. Criminal proceedings resumed and all three were convicted: the first applicant (Taleski) received seven years for abuse of official position; the second (Janakieski) received three and a half years for criminal association and electoral offences; and the third (Mitrovski) received three years for tampering with electoral documents. Appeals and extraordinary review requests to the Supreme Court — whose five-judge panel included Judge M.L.T., who had made public statements about the pardons in 2016 — failed.
Before the Court, the applicants argued that the legislative intervention had retrospectively deprived them of irrevocable rights, violating the principles of legal certainty and the rule of law under Article 6 § 1 of the Convention. The second and third applicants additionally complained that the higher prosecutor’s written submissions in the appeal proceedings had never been served on them, and that Judge M.L.T.’s prior statements had compromised the Supreme Court’s impartiality.
The Court’s Holding
The Court found no violation of Article 6 § 1 in respect of the legislative intervention. It accepted that the 2016 Pardon Act constituted a legislative intervention affecting pending proceedings but concluded that it was justified by compelling grounds of general interest. The pardons had been granted under a statutory provision that had ceased to form part of the domestic legal order, rendering them fundamentally defective and legally void ab initio. Because the applicants never validly acquired any entitlement to exemption from prosecution, no res judicata effect arose from the annulments and the principle of legal certainty was not breached. The intervention was foreseeable, proportionate, and directed at the narrow situation of restoring accountability for public officials — a pressing concern that justified departure from ordinary principles of legal certainty. The Court also rejected the impartiality complaint concerning Judge M.L.T., finding that her earlier public statements, read in context, did not amount to prejudgment of the applicants’ specific cases.
The Court did, however, find a violation of Article 6 § 1 in respect of the second and third applicants’ right to adversarial proceedings. The higher prosecutor submitted written observations to the Court of Appeal that were never served on those applicants; they were merely present at the appeal hearing when the prosecutor read the submissions aloud. Applying the principles established in Bosak and Others v. Croatia, the Court held that making the defence’s knowledge of the prosecution’s observations entirely contingent on its physical presence at the hearing placed a disproportionate burden on the defence and did not ensure a real opportunity to comment on them. The extraordinary review proceedings before the Supreme Court did not remedy this shortcoming.
Key Takeaways
- A legislative intervention permitting retrospective annulment of presidential pardons can be compatible with Article 6 § 1 where the pardons were granted under a provision that had already ceased to form part of the domestic legal order — the beneficiaries acquired no legally protected right in such circumstances.
- The need to maintain accountability of public officials and to prevent serious wrongdoing from escaping judicial scrutiny can constitute compelling grounds of general interest sufficient to justify an exceptional departure from the principle of legal certainty.
- Serving written prosecutorial submissions on the defence — not merely presenting them orally at a hearing the defence attends — is required to satisfy the adversarial-proceedings guarantee under Article 6 § 1; failure to do so cannot be remedied by the defence’s passive awareness at the hearing.
- Extraordinary review proceedings will not cure a breach of adversarial rights if the reviewing court limits itself to confirming that the defence was present when the submissions were read, without addressing the lack of prior written service.
Why It Matters
This judgment offers important guidance on when legislative intervention to unwind executive clemency is compatible with the European Convention on Human Rights. Rather than treating all pardons as categorically irrevocable once issued, the Court focused on whether the legal basis for the pardon was valid — a distinction that may have significant implications for domestic legal systems grappling with pardons issued in legally contested circumstances. The ruling makes clear that the rule-of-law principle cuts both ways: it constrains retrospective legislative action, but also condemns the use of procedurally defective pardons to shield public officials from accountability.
On the procedural side, the Court’s strict application of Bosak to the failure to serve the higher prosecutor’s submissions reinforces a concrete obligation on appeal courts to ensure that all written prosecutorial materials reach the defence directly and in advance, not merely upon oral presentation at a hearing. For practitioners and criminal courts across Council of Europe member states, this underlines that equality of arms requires proactive disclosure, not merely an opportunity to hear submissions in real time.