5.  The applicant was born in 1936 and lives in Skopje. He was a high-ranking official during the communist era. At the time of the events, he neither held a public office nor was a candidate for such an office.
6.  On the basis of a request by a third person and of its own motion, on 27 May 2013 the Fact Verification Commission (“the Commission”) established in lustration proceedings that the applicant had collaborated with State security bodies. Relying on two files from the State Archives, it “established indisputably that [the applicant] gave information ... to State security bodies about individuals ... namely ... he collaborated with the State security services in a conscious, secret, organised and continuous manner as a secret collaborator.” Accordingly, it held that the applicant had fulfilled the condition for restricting his candidacy to or performance of public office. The Commission based its decision on the relevant provisions of the 2012 Lustration Act (see paragraphs 19, 23-26 below) and the Administrative Proceedings Act.
7.  Referring to a report registered as file no. 6825, the Commission established that in 1963, after he had visited his brother in Sweden, the applicant had given information about his brother, his brother’s wife and other people to State security bodies. He also had provided information about other people after he had returned to the city of Gevgelija. The Commission established that the applicant had been engaged by the security services before leaving for Sweden and that they had intended to continue collaborating with the applicant. The file further noted that in 1964 the applicant had shared his impressions about his stay in Sweden with his father.
8.  On the basis of documents in another file, file no. 2599, the Commission established that the applicant, while editor-in-chief of a newspaper in 1962 and afterwards, had provided information to the security services about a colleague, the colleague’s articles and his relations with other people.
9.  The Commission’s decision was published on its website on 30 May 2013, in accordance with sections 29 and 31 of the Lustration Act (see paragraphs 25 and 26 below). It contained information about the applicant’s place of birth, his personal identification number and the positions he had held. The decision was served on the applicant on 4 June 2013.
10.  On 11 June 2013 the applicant challenged the decision in the Administrative Court, arguing that the Commission’s findings based on file no. 6825 had been wrong since the file had obviously been about another person with the same name and not him. He submitted several documents to show that the lustration decision had been a result of mistaken identity. The documents were his birth certificate, which showed a date of birth that was different from the one in file no. 6825; an inheritance decision, certified by a notary public, attesting that the applicant had a sister rather than a brother; his notarised military card, which showed that in 1963 he had been doing military service in Bosnia and Herzegovina; and a death certificate showing that his father had died in 1962. He argued that he had never visited Sweden and had lived since 1955 in Skopje. He also challenged the veracity and authenticity of the documents in file no. 2599 and denied that he had ever collaborated with or provided any information about any colleague to the State security services, let alone that any such collaboration had met the criteria specified in section 18 of the Lustration Act (see paragraph 24 below). In that connection, he submitted that none of the documents in the file had been signed by him. Lastly, he complained about the fact that the decision on the Commission’s website had included his father’s name, despite the fact that the Lustration Act made no provision for the release of such information. He argued that his reputation, dignity, personal information and integrity had been compromised.
11.  In a hearing held in private on 29 January 2014, the Administrative Court dismissed the applicant’s claim. The court held that the Commission had correctly established the facts and applied the relevant law. The court stated:
“[the Commission] established that there were documents in the State Archives created by the State security bodies confirming that [the applicant] had collaborated with State security bodies in a conscious, secret, organised and continuous manner and that he had obtained favours when being promoted, as set out in sections 14 and 18 of [the Lustration Act] ... The Commission correctly established that [the files in question] contained information provided by [the applicant], which had been used to restrict and violate the human rights and freedoms of other people on political and ideological grounds ... ”
12.  As regards the applicant’s complaints of mistaken identity, the court stated:
“... the Commission’s decision clearly established collaboration with security bodies by [the applicant], by determining his personal identification number, place of birth and the office that he had held.”
13.  As to his arguments that the Commission had erred in finding “conscious, secret, organised and continuous collaboration” with State security bodies, the court held:
“[the applicant] was entitled to obtain access to the documents attesting to his collaboration. In case of doubts about their veracity, he could have initiated proceedings before the competent court to prove their inaccuracy, before the impugned decision had been delivered.
In addition, the court considers that the above State security service documents on [the applicant’s] secret collaboration were drawn up on the basis of the rules and regulations of those bodies.”
14.  Lastly, the court stated:
“The court made its decision at a hearing held in private because the Commission had correctly established the relevant facts [on the basis of written material] and [the applicant] had not submitted any evidence that led to different facts.”
15.  On 7 March 2014 the applicant appealed to the Higher Administrative Court. He reiterated the complaints raised in his action in the Administrative Court and submitted that the latter court had not provided any reasoning regarding his complaint that the publication of the Commission’s decision on its website had violated his right to respect for his private and family life, his reputation and dignity. It had also disregarded his evidence that file no.6825 had not concerned him, but a person with the same name, which had led to facts being wrongly established. He stated that the court had also relied on evidence adduced by the Commission without analysing it in adversarial proceedings in the presence of the applicant or any other relevant witness or expert. He complained that the lower authorities had not explained why they had considered that he had collaborated with the security bodies in an intentional, secret, organised and continuous manner, as set out in the Lustration Act. He further complained about the lack of an oral hearing before the Administrative Court and argued that there had been no statutory provision allowing him to request such a hearing. Lastly, he contested the Administrative Court’s explanation about the possible legal avenues he could have used to challenge the veracity of the documents in file no. 2599. In that connection, he submitted that before 4 June 2015 he had not been aware of the existence of documents about his alleged secret collaboration with the security services. Furthermore, his arguments on that point should have been dealt with in the impugned proceedings.
16.  On 12 June 2014 the Higher Administrative Court dismissed the applicant’s appeal and upheld the lower court’s decision. It found no grounds to depart from the facts as they had been established and the reasons given by the Commission and the Administrative Court. It stated:
“The Fact Verification Commission only checks whether or not there was collaboration with the security services; there are no adversarial proceedings, the documents created and held by the [security services] are regarded as facts ...”
17.  Section 13 of the 2008 Lustration Act provided that the name of the person concerned who had been identified by the Lustration Commission as a collaborator had to be published in the Official Gazette after final conclusion of the proceedings. The Act was replaced with the 2012 Lustration Act (see sub-heading B. below).
18.  Section 1 stated that the Lustration Act regulated the criterion for limiting the exercise of public office, the publication of information on cooperation with State security bodies and the powers of the Fact Verification (Lustration) Commission.
19.  Section 3 contained a list of persons subject to the Lustration Act.
20.  Section 4 provided that people found by the Lustration Commission to have been registered as a secret collaborator or secret informer between 2 August 1944 and the date of entry into force of the Act would be regarded as having met the criterion for limiting their candidacy for or the exercise of public office. Such collaboration was deemed as the operational gathering of information and data (hereinafter “information”) that was subject to processing, storage and use by the State security services, gathered and kept on certain persons, thereby resulting in violations or limitations of human rights and freedoms.
21.  Section 4(1) defined collaboration as conscious, secret, organised and continuous cooperation with the State security services, consented to in writing, as a secret collaborator or secret informant. It involved collecting information about an individual, violating their human rights on ideological or political grounds, in return for material benefit for the collaborator or informant, or favours during employment or in getting promotion. Under sub-section 3 of the provision, the Lustration Commission was to find that there had not been cooperation with the State security services if it could not establish that there had been conscious, secret, organised and continuous cooperation and activity.
22.  Section 5 established the Commission as an autonomous and independent authority financed from the State budget. It was composed of a president, a deputy president and nine other members, elected by Parliament by a qualified two-thirds majority for a five-year term (section 6(1)).
23.  Section 10 regulated the functioning of the Commission. The Commission was to deliberate in session in the presence of two-thirds of its members and decisions had to be taken by a majority of its members.
24.  Section 18(4) defined collaboration as conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written agreement. The person was to have acted as a secret collaborator or secret informant, collecting information regarding an individual, in violation of their human rights, in return for material benefit or favours during employment or in getting promotion.
25.  Under section 29(1), any former holders of public office or of a position of public authority whom the Commission found, after conducting the verification procedure, to have collaborated within the meaning of the Act, were to be deprived of their right to exercise public office or hold positions of public authority during the validity of the law (ten years from the appointment of the Lustration Commission, section 42). Sub-section 2 stated that the Lustration Commission had to publish its decisions of a finding of collaboration with the State security services on its website. That had to be done immediately and in any case no later than three days after completion of the procedure. It also had to submit the decision to Parliament, the Government and the State Electoral Commission.
26.  Under section 31, a decision establishing collaboration with the State security services had to contain the full name and surname, personal identification number, date and place of birth, pseudonyms and documents used as evidence of collaboration. A person subjected to such checks would be informed by the Lustration Commission of the results of its investigation. The Commission’s decision was to be published on its website. The documents used as evidence to confirm collaboration with the State security services were also to be published. The Commission’s decisions were subject to a court appeal within eight days of the day of service, based on the principles of priority and urgency.
27.  The Act repealed the 2012 Lustration Act. All ongoing lustration proceedings were to be concluded. The Lustration Commission’s mandate was also to be regarded as expired. It came into force on 1 September 2015.
28.  Section 1 of the Administrative Disputes Act states that for the purposes of judicial review a court decides in administrative-dispute proceedings on the lawfulness of decisions (“administrative acts”) by administrative authorities, the Government and other State or public authorities (hereafter “public entities”) when, in the exercise of their public powers, they decide on the rights and obligations of individuals or legal entities in administrative matters.
29.  Section 4 provides that administrative disputes are decided by Administrative Court (at first instance) and by the Higher Administrative Court (on appeal). The Supreme Court can decide upon any extraordinary remedies specified by law.
30.  Under section 7-a, if the Administrative Disputes Act does not contain specific provisions on the administrative-dispute procedure, the provisions of the Civil Procedure Act apply mutatis mutandis.
31.  Section 9 provides that administrative-dispute proceedings cannot be instituted if another judicial remedy has been secured.
32.  Under section 10, administrative decisions may be contested for lack of jurisdiction, the misapplication of substantive law, incorrect findings of fact or for procedural flaws.
33.  Section 26 states that an Administrative Court must declare an application for judicial review inadmissible if, inter alia, the contested decision does not constitute an administrative act, or the law rules out the institution of an administrative dispute in that particular case.
34.  Section 30, as amended in 2010, no longer entitles a party to the proceedings to request that the Administrative Court hold an oral hearing. According to the amended text, the court, as a rule, decides at a hearing held in private. Section 30-a provides that the court holds a public oral hearing if the case is complex, to clarify matters or establish facts, or if it adduces evidence.
35.  Section 36 provides that an Administrative Court, as a rule, is to decide cases on the basis of the facts established in the administrative proceedings before the public entity whose decision is being contested, or on the basis of facts established by the court itself. The Administrative Court should quash the contested decision and remit the case if it finds that the facts have not been correctly established, or for procedural errors. When the evidence suggests that the actual facts are different from those established by the public entity in the administrative proceedings, the Administrative Court may itself establish the facts and decide the case. In such cases the facts are determined at a hearing in the presence of the parties.
36.  Section 39 provides for appeal against the judgment of an Administrative Court.
37.  Section 40 sets out situations where the Administrative Court, having found an action well-founded, does not have to remit the case but can decide it on the merits by a decision entirely replacing the public entity’s contested decision.
38.  Article 33 § 1 (3) of the Criminal Code provides that a convicted person can be prohibited from exercising a profession, activity or duty.
39.  Under Article 38-b § 1, a court can prohibit a convicted person sentenced to imprisonment or given a suspended sentence from exercising a profession or activity if he or she acted in abuse of the rules of that profession or activity in committing the crime and could be expected to repeat that act of abuse in the commission of a new crime.
40.  On 24 March 2010 the Constitutional Court declared several provisions of the 2008 Lustration Act, which was replaced by the 2012 Lustration Act, to be invalid. Among other provisions, the court set aside section 13, which had provided for the publication of a collaborator’s name in the Official Gazette after final conclusion of the lustration proceedings (see paragraph 17 above). The court found that such a measure was unnecessary and violated the moral integrity and reputation of the person concerned. It held that the publication of the collaborator’s name in the Official Gazette was disproportionate to the aim of the 2008 Act, namely preventing collaborators with the secret service from holding public office in a democratic society. That aim, the court held, could be achieved by ascertaining the facts and informing the relevant State bodies.
III.  RELEVANT COUNCIL OF EUROPE DOCUMENTS
Parliamentary Assembly Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems
41.  The relevant Council of Europe documents are set out in Ivanovski case (see Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, §§ 106-108, 21 January 2016). Further to the extracts cited in Ivanovski case, the Venice Commission amicus curiae of 17 December 2012 read as follows:
“D. The publication of the names of those persons who are deemed to be collaborators 74.  In the Commission’s view, publication prior to the court’s decision is problematic in respect of Article 8 ECHR. The adverse effects of such publication on the person’s reputation may hardly be removed by a later rectification, and the affected person has no means to defend himself against such adverse effects. The latter may only appear to be a proportionate measure necessary in a democratic society when the collaboration is finally verified, not before. Publication should therefore only occur after the court’s decision.”