SECOND SECTION
CASE OF ZAHARIEV v. NORTH MACEDONIA
(Application no. 26760/22)
 
 
 
JUDGMENT
Art 6 § 1 (criminal) • Fair hearing • Domestic courts’ failure to address applicant’s argument related to his alleged immunity from prosecution under the 1961 Vienna Convention on Diplomatic Relations in criminal proceedings resulting in his conviction
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
5 November 2024
 
FINAL
 
05/02/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zahariev v. North Macedonia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Diana Sârcu,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 26760/22) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Borislav Zahariev Zahariev (“the applicant”), on 27 May 2022;
the decision to give notice to the Government of North Macedonia (“the Government”) of the complaint under Article 6 of the Convention concerning the lack of a fair hearing and to declare inadmissible the remainder of the application;
the fact that the Bulgarian Government did not express a wish to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court);
the parties’ observations;
Having deliberated in private on 8 October 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the reasoning of the domestic courts’ judgments in dismissing the applicant’s argument that he enjoyed immunity from criminal jurisdiction under the Vienna Convention on Diplomatic Relations of 1961 (“the Vienna Convention”). THE FACTS
2. The applicant was born in 1965 and lives in Sofia. He was represented by Mr M. Neykov, a lawyer practising in Plovdiv. 3. The Government were represented by their Agent, Ms D. Djonova. 4. The facts of the case may be summarised as follows. 5. Between 2004 and 2009 the applicant worked as a financial director of a telecommunications company in the respondent State. 6. From January 2007, the applicant’s wife worked as an official (службеник) at the Bulgarian Cultural and Information Centre (“the Centre”) attached to the Bulgarian embassy (“the embassy”) in the respondent State. 7. On 24 January 2012 an investigating judge opened an investigation against the applicant and another person on suspicion of abuse of office (злоупотреба на службена положба и овластувања) and tax evasion (даночно затајување), allegedly committed by the applicant in 2008 and relating to his work at the telecommunications company. On 11 February 2013 the public prosecutor filed an indictment against the applicant. 8. On 13 June 2013 the applicant and his lawyer informed the Skopje Court of First Instance (“the trial court”) that the applicant held a special identity card granting him, under international law, absolute immunity from prosecution. They submitted a copy of that card, which had been issued by the Ministry of Foreign Affairs (“the Ministry”). The card stated that its holder enjoyed immunity from criminal jurisdiction, arrest or police custody in the territory of the respondent State. 9. The trial court scheduled ten hearings between 16 October 2013 and 22 September 2015, most of which were adjourned. The applicant was absent from those hearings and was represented by a lawyer, who stated on several occasions that he had advised his client not to attend the hearings until the court had decided on the issue of his immunity. 10. In the meantime, by a letter apparently received by the trial court after 30 April 2014, the Ministry notified the public prosecutor that the applicant was the holder of a special identity card on account of the status of his wife, who was an official of the Centre, and that, under Article 37(2) of the Vienna Convention (see paragraph 30 below), members of the family of administrative and technical staff of an embassy enjoyed immunity, which, however, did not apply to acts performed outside their official functions. In a submission of 16 September 2014 the applicant argued that the exception provided for in Article 37(2) of the Vienna Convention concerned solely immunity from civil and administrative jurisdiction and not immunity from criminal jurisdiction. 11. On 22 September 2015 the trial court convicted the applicant in absentia. Referring, inter alia, to the Ministry’s letter (paragraph 10 above) and to Article 37(2) of the Vienna Convention, it found that the applicant did not enjoy immunity from criminal prosecution, as he had been accused of a criminal offence unrelated to the exercise of the official functions from which such immunity would derive. 12. The applicant appealed, arguing that the trial court had wrongly applied Article 37(2) of the Vienna Convention. He relied on the judgment of the International Court of Justice in the case Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (ICJ Reports 2002; “the Arrest Warrant case”, see paragraph 32 below). The Skopje Court of Appeal (“the appellate court”) upheld his appeal and remitted the case for reconsideration of, inter alia, the question of immunity from criminal jurisdiction. 13. In the remitted proceedings, in written submissions of 31 October and 1 December 2016, the applicant again referred to the judgment in the Arrest Warrant case, which, in his view, with respect to the immunity from criminal jurisdiction, made no distinction between acts performed in an official capacity and acts performed in a private capacity. Furthermore, a person enjoying diplomatic immunity could only be prosecuted: (i) in his or her own country; (ii) in other countries if his or her own country had waived immunity; (iii) after his or her official functions had ceased; or (iv) by an international court. The applicant submitted that none of these conditions were met in his case. 14. Following several requests for information, by a letter dated 24 July 2018 the Ministry notified the trial court that: (i) in 2007 the applicant and his wife had been issued with special identity cards; (ii) possibly because of the prohibition under Article 42 of the Vienna Convention (see paragraph 30 below) on diplomatic agents engaging in professional or commercial activities for personal profit, in February 2010 the embassy had requested the Ministry to cancel the applicant’s registration as the spouse of an official of the Centre; (iii) on 30 January 2012 the Ministry had again issued the applicant with a special identity card, which had subsequently been extended until 30 May 2014; and (iv) on 3 June 2014 the embassy had requested the extension of his and his wife’s special identity cards, but, given that criminal proceedings had been pending against the applicant, only the wife’s card had been extended until 31 December 2015. The Ministry also stated that the applicant could not be employed and at the same time enjoy immunities and privileges. In this regard, it was necessary for the respondent State to conclude a bilateral agreement with Bulgaria, but that had not happened. 15. By a letter of 11 September 2018, the applicant argued that he had been indicted on 11 February 2013, when he had had a valid special identity card granting him immunity from criminal prosecution. 16. On 19 March 2019 the trial court discontinued the proceedings in respect of the offence of tax evasion as the prosecution had become time‑barred. 17. On 19 November 2019 the trial court heard a representative of the Ministry, who stated that on 14 February 2007 the applicant had been issued with a special identity card, the validity of which had been extended until 15 April 2009, and subsequently from 20 April 2009 until 31 December 2011 and from 30 January 2012 until 30 May 2014. The applicant had enjoyed immunities as a family member of the administrative and technical staff of the Centre associated with the embassy, but that immunity could be terminated on several grounds, including when a diplomatic agent practised a professional or commercial activity for personal profit, contrary to Article 42 of the Vienna Convention. He also referred to Article 31(1)(c) of the Vienna Convention (see paragraph 30 below) and concluded that the applicant could not invoke immunity. 18. In his concluding remarks, the applicant’s lawyer argued that Article 42 of the Vienna Convention did not provide that a person entitled to immunity would be automatically stripped of it if he or she engaged in professional or commercial activities. She further reiterated the arguments previously raised (see paragraph 13 above). 19. On 24 December 2019 the trial court convicted the applicant in absentia of abuse of office and sentenced him to five years’ imprisonment. It referred to the Ministry’s letter of 24 July 2018 and the statement of the Ministry’s representative of 19 November 2019 (see paragraphs 14 and 17 above). It found that Article 42 of the Vienna Convention prohibited a diplomatic agent from practising a professional or commercial activity and that, therefore, the applicant’s immunity had ceased at the moment when he had taken up employment with a private company. It further found that the applicant had not invoked diplomatic immunity when the investigation against him had been opened and had concealed the fact that he had been employed in the respondent State, being aware that he had thereby “lost” his immunity. Moreover, the embassy had never invoked immunity for the applicant and had not requested the extension of his special identity card after 2014. The Arrest Warrant case had concerned a person who had enjoyed immunity at the time when the alleged offence had been committed, whereas the applicant’s immunity had been terminated because of the breach of Article 42 of the Vienna Convention at the moment of his employment. 20. The applicant appealed against the trial court’s judgment. He argued, inter alia, that under the Vienna Convention there were no exceptions to immunity from criminal (as opposed to civil and administrative) jurisdiction; that Article 42 of the Vienna Convention did not provide that a person’s immunity was terminated when he or she engaged in professional or commercial activities; that the Vienna Convention (Article 32(1) and (2) and Article 39(2)) explicitly regulated the termination of diplomatic immunity; and that the Arrest Warrant case applied to his case. Bulgaria had not explicitly waived his immunity. He could invoke immunity at any stage of the proceedings. Even assuming that he had lost or waived his immunity at the moment of his employment, when he had been indicted (February 2013) he had not been employed and had possessed a special identity card granting him immunity from prosecution. 21. On 9 March 2021 the appellate court confirmed the applicant’s conviction. It endorsed the trial court’s reasoning that, in view of Article 42 of the Vienna Convention, the applicant had lost his immunity at the moment when he had become employed. Lastly, it held that, under Article 31(1)(c) of the Vienna Convention, the applicant could not rely on immunity in respect of an offence committed outside the official functions. 22. The applicant lodged a request for extraordinary review of a final judgment (барање за вонредно преиспитување) with the Supreme Court. He argued that the appellate court had failed to provide any reasoning in respect of his argument that he had enjoyed immunity at the time he had been indicted and that the lower courts had failed to establish whether the special identity cards issued to him after his employment contract had ended had granted him diplomatic immunity. Moreover, the lower courts had misquoted Article 31 of the Vienna Convention, which clearly provided that immunity from criminal jurisdiction was not subject to exceptions. He also reiterated his previous arguments (see paragraph 20 above). 23. On 3 November 2021 the Supreme Court confirmed the applicant’s conviction and endorsed the lower courts’ reasoning. It referred to Articles 41 and 42 of the Vienna Convention. The relevant part of its judgment reads as follows:
“In view of ... the undisputed fact that [the applicant] had been employed by the [telecommunications company] on the basis of which he had earned an income, having therefore acted contrary to the prohibition in Article 42 of the [Vienna Convention], which implies that [he had regulated] his residence in the country on the basis of employment, the lower courts correctly concluded that [the applicant] had lost his right to invoke the privileges and immunities which he had enjoyed until his employment on the grounds of [the status of his wife]. [The applicant] did not invoke diplomatic immunity before the investigation judge, knowing that his status in the country had otherwise been regulated. This court considers that, in the specific case, there are no circumstances precluding [the applicant’s] criminal prosecution, who, according to [the Ministry], does not enjoy immunity from criminal prosecution [in the respondent State] in which he lost the immunity and the corresponding privileges because of a breach of the provisions of [the Vienna Convention].”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic lawThe 1991 Constitution

24. 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. Courts Act (Закон за судовите, Official Gazette nos. 58/06, with further amendments)
25. Section 2 provides that the domestic courts make decisions on the basis of the Constitution, laws and international agreements ratified in accordance with the Constitution. 26. Under section 18, if 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. Criminal Proceedings Act of 1997 (Закон за кривичната постапка, Official Gazette no. 15/97, with further amendments)
27. Section 137 of the Criminal Proceedings Act of 1997, applicable to the applicant’s case, provided that the prosecution of persons who enjoyed immunity was governed by the rules of international law. In the event of doubt as to whether the proceedings concerned such persons, the court would seek a clarification (објаснение) from the Ministry of Foreign Affairs. 28. Other provisions relevant to the present case are described in the case of Mamudovski v. the former Yugoslav Republic of Macedonia ((dec.), no. 49619/06, 10 March 2009). 29. Under section 392(1)(7), a case could be reopened if the Court had given a final judgment finding a violation of human rights or freedoms. The same provision is contained in section 449(6) of the new Criminal Proceedings Act, which became applicable after 1 December 2013. International law and practiceVienna Convention on Diplomatic Relations 1961 (“the Vienna Convention”)

30. The relevant parts of the Vienna Convention, which was adopted on 14 April 1961 and to which the respondent State succeeded on 18 August 1993, read as follows:
 
“The States Parties to the present Convention,
... Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
...”
Article 1
“For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
... (e) a ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of the mission;
(f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission;
...”
Article 31
“1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
... (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
... 4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.”
Article 32
“1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 2. Waiver must always be express.
...”
Article 37
“1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36. 2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.
...”
Article 39
“... 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
...”

Article of the Convention at issue: Article 6
Outcome: violation