Roma Rights 1, 2010: Implementation of Judgments
26th, July, 2010
“To This Very Day I Fear Policemen Whenever I See Them in Town”: Implementation of the Judgment in Jasar v Macedonia
On 15 February 2007, the European Court of Human Rights (ECtHR or the Court) established for the first time a violation of Article 3 of the European Convention on Human Rights (ECHR or the Convention) by Macedonia in connection with the police ill-treatment of Mr Pejrušan Jašar,2 a Macedonian national of Romani ethnic origin, and the ensuing lack of effective investigation.3 The Court later reiterated the main findings from the Jasar case in two subsequent rulings involving Romani victims.4 However, the positive ruling for Mr Jašar and the condemnation of Macedonia by Europe’s ultimate human rights court brought no change to his personal circumstances. Not even nine months had passed from the time of the Court’s judgment before he was again physically abused by police. The years following the Jasar judgment saw some improvement in law, but the legal changes and actions of the authorities have not reduced significantly the problem of ill-treatment of persons by law enforcement officials and have not effectively addressed the phenomenon of the latter’s impunity.5
The facts of the case and the ECtHR ruling
The applicant is Mr Jašar, a Romani man from Štip, Macedonia. He was in a bar on 16 April 1998, when another customer, complaining that the gambling machine was rigged, drew a firearm and fired several shots. According to Mr Jašar, several police officers came to the bar, grabbed him by his hair and forced him into a police van. While in police custody overnight, he reported that a police officer kicked him in the head, punched him and beat him with a truncheon. The following morning, a medical report was issued immediately after Mr Jašar was released noting that he had sustained numerous injuries to his head, hand and back. In May 1998, local attorney Jordan Madzunarov, in cooperation with the European Roma Rights Centre (ERRC), filed a criminal complaint on behalf of Mr Jašar with the Public Prosecutor against an unidentified police officer; no effective steps were taken to investigate the complaint. Mr Jašar lodged a civil action for damages against the State at the same time, which was dismissed in October 1999. Having exhausted available domestic remedies, Mr Jašar, represented by Mr Madzunarov and the ERRC, filed a complaint with the ECtHR on 1 February 2001, complaining under Article 3 of the Convention that he had been subjected to acts of police brutality amounting to torture, inhuman and/or degrading treatment and that the prosecuting authority’s failure to carry out any official investigation capable of leading to the identification and punishment of the responsible police officers constituted a procedural violation of Article 3. He also complained that he did not have access to an effective remedy with respect to the prosecuting authority’s failure to investigate his allegations of ill-treatment, in violation of Article 13 of the Convention, read in conjunction with Article 3.
The significance of the case was underscored by the fact that on 19 January 2006 the Court held an oral hearing on the admissibility and merits of the case without a related previous request from either of the parties. Much of the hearing focused on various legal remedies available in Macedonia in cases of police ill-treatment. In its admissibility decision, the Court ruled that by filing a criminal complaint and civil action to obtain damages the applicant “brought the alleged police brutality to the attention of the authorities, placing them under a duty to carry out an appropriate investigation, and instituted a court procedure able to establish the facts, attribute responsibility and award monetary redress.”6 Therefore Mr Jašar was not obliged to exhaust other remedies. This “precedent” conclusion prompted the admissibility decisions of two other cases which, at that time, were still pending before the Court: the Sulejmanov and Dzeladinov and Others cases.7
The Court recalled that “where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, when read in conjunction with the State’s general duty under Article 1 of the Convention “to secure to everyone within their jurisdiction the rights and freedoms defined in […] [the] Convention”, requires by implication that there should be an effective official investigation.”8 Furthermore, “such an investigation should be capable of leading to the identification and punishment of those responsible.”9 The Court emphasised that “it is particularly striking that the public prosecutor did not undertake any investigative measures after receiving the criminal complaint”10 and that:
the national authorities took no steps to identify who was present when the applicant was apprehended or when his injuries were received, nor is there any indication that any witnesses, police officers concerned or the doctor, who had examined the applicant, were questioned about the applicant’s injuries. Furthermore, the public prosecutor took no steps to find any evidence confirming or contradicting the account given by the applicant as to the alleged ill-treatment. […] In addition, the inactivity of the prosecutor prevented the applicant from taking over the investigation as a subsidiary complainant and denied him access to the subsequent proceedings before the court.11
Considering the absence of any investigation into Mr Jašar’s allegations of police ill-treatment while in custody, the Court found that Macedonia had acted in violation of Article 3 of the Convention and awarded financial compensation.12
The systemic nature of the issues addressed in the Jasar case
The systemic character of the problems addressed in this case had already been analysed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in a report following its 2004 visit to Macedonia. The report stressed that if such a state of affairs were to persist despite previous repeated CPT recommendations, it would be obliged to consider having to resort to Article 10.2 of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and make a public statement of the matter. The report stated:
Repeated examinations of the issue by visiting delegations have clearly established that, even when detained persons do indicate to an investigating judge and/or a prosecutor that they have been ill-treated, there is no guarantee that any effective investigation will be set into motion. Further, as regards internal accountability procedures, the Committee concluded that there was considerable room for improvement in the manner in which police complaints were investigated […] no effective follow-up action has been taken in respect of most of the specific cases set out in previous reports where the Committee had found that there had been a failure to carry out an effective investigation.13
In its June 2003 report, the Office of the United Nations High Commissioner for Human Rights stated that despite achievements in the implementation of the 2001 Framework Peace Agreement, the level of enjoyment and respect of human rights in Macedonia has not improved significantly; it also noted that allegations of racial discrimination and police abuse of Roma continued.14
In a 2005 report Amnesty International expressed its concern regarding cases of torture and ill-treatment by the police, and the lack of indictments of the persons responsible for such violations.15
Similarly, the Skopje-based Helsinki Committee for Human Rights of the Republic of Macedonia reported in 2002 that the excessive use of force and inappropriate treatment by the police in the arrest and detention of Roma was of specific concern. Its 2003 report stated that “torture and inhuman treatment are still everyday practice in police work and are not subject to any control, prosecution or appropriate sanctioning.”16 The most common types of human rights violations by police included physical violence against citizens during the process of arrest, while in police custody, during investigation and in the execution of other police duties. The Helsinki Committee report noted that in the most likely scenario, these cases are not investigated, nor are criminal charges brought against the perpetrators.
Advocacy action following the judgment
The standards adopted in the Jasar case, reiterated in subsequent rulings against Macedonia, emphasise the need for thorough implementation to avoid the occurrence of similar violations in the future. Therefore, analysis of the legal gaps between the international human rights obligations and domestic law and the examination of the practices of the State bodies seems relevant.
In particular, the lack of effective investigation in cases of alleged ill-treatment by law enforcement officials was one of the main concerns of the Court and it has been also articulated by various international human rights monitoring bodies and civil society organisations. Meanwhile a draft Law on the Public Prosecution Office was prepared and adopted in December 2007. The ERRC and the Civil Society Research Centre (CSRC) sent a joint letter to the highest Macedonian authorities to secure timely and effective response by the Public Prosecution Office (PPO).17 The provisions suggested therein were not accepted by the legislative body.18
On 7 October 2007, the ERRC and the CSRC sent a joint memorandum to the Committee of Ministers of the Council of Europe (CoE) regarding implementation of the Jasar judgment by the Macedonian State.19 The organisations recommended, inter alia, the following: Police officers using unnecessary or non-proportionate force should be subject to adequate sanctions that are capable of deterring police abuse;20 the then draft Law on the Public Prosecution Office should guarantee effective legal remedies for individuals against the inactivity of the PPO the prosecutors’ independent and impartial work and their freedom from political pressure by the executive;21 the Internal Control Unit of the Ministry of Interior should improve its transparency and accountability to the public, ensuring that all relevant information regarding alleged ill-treatment by law enforcement officials are examined in a thorough, timely and unbiased manner, and that the PPO is immediately notified of every case in which the conduct of police officers may be criminal in nature; free and independent22 medical examination during detention as well as immediately after release should be provided for persons taken into police custody;23 where a person has sustained any injuries during contact with a law enforcement agent, the burden of proof concerning the necessity and proportionality of the force used should remain with the law enforcement agent/office; and the judgments of the European Court should be brought to the attention of judges, public prosecutors and other state servants and relevant experts, through their translation, publication or other means of dissemination, as well as through training.24
The human rights situation of detained persons and the conduct of law enforcement officials was closely monitored by a number of international and domestic non-governmental organisations, which submitted a number of recommendations to international human rights bodies. The organisations recommended the following: improvement of the legislation for a solid legal framework to secure effective struggle against ill-treatment by law enforcement officials and their impunity; strong and clear high level political messages to the law enforcement agencies that no ill-treatment, harassment or discrimination practices will be tolerated; creation of a fully independent, impartial and transparent body to investigate complaints of alleged police abuse; full collaboration between various governmental bodies and agencies and civil society to eradicate torture and ill-treatment; adoption of appropriate legal provisions to secure independent, timely and effective performance of the duties of public prosecutors in cases of alleged ill-treatment; and training of law enforcement officials and legal practitioners to effectively deal with cases relating to ill-treatment.25
Information regarding the issues addressed in the Jasar case was submitted to the United Nations Human Rights Committee26 and the CoE Commissioner for Human Rights in connection with his country visit to Macedonia in February 2008.
The just satisfaction awarded by the ECtHR in respect of the non-pecuniary damages suffered by Mr Jašar was paid by the State in 2007.27 However, even before the delivery of the judgment, on 22 February 2006, the Basic Public Prosecutor of Štip decided not to prosecute in the case which was closed as time-barred,28 resulting in impunity for the perpetrators and no effective remedy for the victim as guaranteed in the Convention.
Eight and half months after the judgment was issued, Mr Jašar was again severely beaten by Macedonian police. The incident happened on 2 November 2007 around 8:30 PM when the police detained Mr Jašar in connection with the alleged involvement of his nephew, Turkmen, in a theft. Mr Jašar reported that among the police officers who beat him he was able to recognise some of those who had beaten him in 1998. Mr Jašar recalls this second incident in the following way:
On 2 November 2007, I joined my underage nephew in the police car as he was taken from home for an alleged theft […] and his parents were not there. In the police car I was beaten by Z.R. in the presence of two other police officers after speaking in Romani with my nephew. Several minutes after the car’s arrival at the Štip Police Station, a police van with seven or eight police officers arrived. In front of the police station I was beaten by no less than seven police officers. After the beating, two of them grabbed my hands while Z.R. pulled my hair; they dragged me like this towards an accordion-door, which they opened using my head. Then they put me into the office of the police commander Z.R., who started to hit my head and body. I fell down and then he started to kick me all over my head and ribs, at the same time threatening and cursing me with vulgar expressions (“monkey”, “f[…] your Gypsy mother, you who sued my colleagues”).29
Mr Jašar’s nephew gave the following account of the events:
At that time my parents were not at home so I took my uncle, Pejrušan, with me. When we arrived in front of the police station, before entering, a police officer started to beat my uncle. He was placed in one room and beaten by them [police officers]; after a while they took him out to wash his face and again they started to beat him. They were also beating me and you can see these marks on my face.30
A representative of the Association for Roma Rights Protection (ARRP), a Štip-based NGO, called an ambulance around 11:00 PM and Mr Jašar was hospitalised as he had sustained a broken rib and contusions; he was released on 6 November 2007.31 The medical certificate stated that the fracture of the rib amounts to a severe bodily injury.32 The NGO Čerenja expressed concerns over the disproportionate response - deploying four police vehicles and more than 20 police officers to investigate an alleged minor theft - and publicly asked the police whether there was a hidden motive for the brutal beating of Mr Jašar.33
The Štip Police Station’s Spokesperson stated that the police were performing their duty to apprehend the minor suspect and that while waiting for the suspect’s parents to arrive a group of people started to obstruct the police. The Spokesperson also claimed that Mr Jašar started to attack the officers upon arrival of the second police vehicle.34
On 15 November 2007, Mr Jašar filed a criminal complaint against Officer Z.R. under Article 142.2 in connection with Article 142.1 of the Criminal Code.35 On 17 March 2009, the investigating judge ordered an investigation against Officer Z.R. for the alleged crime of torture and other cruel, inhuman or degrading treatment or punishment. At the end of the investigation proceedings, the Public Prosecution Office decided not to issue an indictment; the investigating judge then informed Mr Jašar about his entitlement to take over the prosecution within eight days. On 24 October 2009, Mr Jašar’s lawyer lodged a subsidiary indictment under Article 142.2 of the Criminal Code against Officer Z.R., extending it to include police officers Z.V., J.Z., N.D., M.M., P.A. and L.V. (the lawyer identified the others in the course of his inquiry). On 12 April 2010, the Štip Basic Court informed Mr Jašar that no trial could be conducted against the police officers who were not included in the investigation. The Court held that the subsidiary indictment in respect of these persons was to be a criminal complaint and asked Mr Jašar to inform the Court within 8 days whether or not he would submit new criminal complaints to the Basic Public Prosecution Office;36 a criminal complaint was submitted within the stipulated time period but no hearing has been held so far.
The Ministry of Interior lodged a criminal complaint against Mr Jašar for alleged assault of law enforcement officials during the performance of their duties: In June 2008 the Basic PPO filed an indictment against Mr Jašar and the proceeding is still pending though no hearing has been held. The practice of lodging criminal complaints against victims of police abuse for alleged crimes against the police is very common in Macedonia and raises suspicions in general about a hidden aim of discouraging lawsuits by genuine victims of human rights violations committed by police. Under-reporting of police abuse is also prevalent because the use of force is seldom investigated,37 goes unpunished or results in minimum sanctions.38 There are also various accounts about police intimidating witnesses, lawyers, judges, human rights defenders and others involved in the judicial process, with the intention of preventing them from taking action on human rights violations.39
Mr Jašar experienced various methods of “persuasion” and harassment aiming at “convincing” him to withdraw legal proceedings against the State and the responsible police officers after the initial incident in 1998:
Following the 1998 beating, I was called by a shift-commander of the Štip Police who told me the following: “Pejrušan, let such a thing occur no more, the police officers will pay your hospital bills and the fees for the medical certificate; just don’t sue them.” However, I told him that I will sue those who are responsible. Upon my departure from the Court of Appeal, the police officers threatened me in front of my family, saying “you won’t remain alive.”40
With reference to his and his family’s security from ill-treatment, particularly after the judgment of the Court, Mr Jašar states: “After the judgment things did not change much: my son was beaten; this is shame! To this very day I fear policemen whenever I see them in town. While watching me, they move their heads and point their fingers toward me in a threatening manner.”41
Developments in law and practice following the Jasar judgment
The CPT had constantly warned of the persistent failure by national authorities to address certain fundamental shortcomings in the treatment and detention conditions facing persons deprived of their liberty. Therefore in December, owing to the lack of appropriate response by the national authorities, the President of the CPT sent a letter informing the Macedonian authorities about the CPT’s decision to set in motion the procedure provided for in Article 10.2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.42 Nevertheless, with a view to pursuing a constructive dialogue, the CPT informed the Macedonian authorities shortly afterwards about their decision to re-examine the situation on the ground before taking a formal decision with regard to Article 10.2 procedure.43 Additional information was sought from the Macedonian Government and a new visit was conducted from 30 June to 3 July 2008. During the visit, the delegation received many allegations that prosecutors and judges did not act upon claims of ill-treatment when they were brought to their attention. It concluded that “it would appear that no action has been taken by the relevant authorities to ensure implementation of the Committee’s recommendation” and reiterated:
whenever persons brought before a prosecutor or judge allege ill-treatment by law enforcement officials, the prosecutor/judge records the allegations in writing, immediately orders a forensic medical examination and take the necessary steps to ensure that the allegations are properly investigated.44
Further, the CPT recommended that even in the absence of an express allegation of ill-treatment, the prosecutor or judge should adopt a proactive approach. It recommended that guidelines should be issued relating to the treatment of imprisoned or detained persons (particularly juveniles and children)45 to reiterate the message of zero-tolerance regarding ill-treatment of persons deprived of their liberty.
In its second periodic review of Macedonia in May 2008, the UN Committee against Torture (CAT) expressed concern over allegations of torture, or cruel, inhuman or degrading treatment or punishment committed by law enforcement personnel and the lack of prompt and effective investigations and prosecutions in this respect.46 Moreover, it noted with concern reports of intolerance and hatred towards ethnic minorities, especially Roma, and information showing that instances of ill-treatment by law enforcement officials, especially the police, often involve persons belonging to ethnic minorities.
Therefore, it recommended that the Government should strengthen efforts to combat ill-treatment of and discrimination against ethnic minorities, in particular Roma, by ensuring strict observation of relevant existing legal and administrative measures, training and information campaigns. Regarding the role of the Public Prosecution Office, the CAT recommended the Macedonian Government should ensure the independence and the effective functioning of the Public Prosecution Office.47
However, recent reports of State bodies, NGOs and intergovernmental bodies indicate that the situation has not improved much in practice (in spite of notable legislative developments described in the next chapter). The Ministry of Interior’s Unit for Internal Control and Professional Standards (UICPS) examined cases of alleged excessive use of force by police as follows: 2007 - 61 complaints (9 identified as well-founded; 2008 - 64 complaints (4 identified as well-founded), 2009 - 79 complaints (6 identified as well-founded).48 The Human Rights Support Project (HRSP) registered the following: 2007 - 51 cases (53% relating to excessive use of force or ill-treatment) with 57 alleged victims (12.28% Romani), 2008 - 37 cases (51.35% excessive use of force or ill-treatment) with 38 alleged victims (18.42% Romani), 2009 - 42 cases (66.66% excessive use of force or ill-treatment) with 2 NGOs and 41 persons as alleged victims (26.19% Romani). HRSP filed criminal complaints with the PPO as follows: 2007 - 11 criminal complaints (5 indictments filed by the PPO), 2008 - 4 complaints (1 indictment filed by the PPO), 2009 - 5 complaints (no indictments filed by the PPO).49
In its 2009 report, the Helsinki Committee for Human Rights of the Republic of Macedonia reported about recent practices of ill-treatment50 and intimidation of victims by law enforcement officials who were defendants in criminal proceedings.51 It reported that all of its submissions, including criminal complaints, in cases relating to torture have been completely ignored by the competent authorities.52 Admittedly, four Skopje prison officials were subjected to disciplinary sanctions (though without instigating criminal proceedings) for the ill-treatment of inmates and in one case police were convicted for “maltreatment in the performance of duties” for an incident in 2003.53
In his 2008 country visit report, the Commissioner for Human Rights noted that despite improvements police violence remains a problem54 and recognised the particular problem of Roma being subjected to ill-treatment as a result of their ethnicity.55 In its recent report, the European Commission against Racism and Intolerance noted continuing reports of ill-treatment by police or of police action potentially based on ethnic prejudice primarily concerning Roma and that there is still no “fully independent, impartial, effective investigation mechanism.”56
Laws and strategies
The Law on the Public Prosecution Office (LPPO), enacted in December 2007,57 states that the PPO is obliged to take steps according to the law as soon as possible, but not later than 30 days after the criminal complaint has been filed. However, the LPPO contains no provisions requiring the PPO to provide information within a reasonable period of time upon the request of persons or agencies filing the criminal complaint (charges) as to whether it has initiated an investigation, submitted an indictment to the Court or rejected the criminal complaint. Given that there is no prescribed time limit to inform the victims of the outcome, the PPO’s failure to act for unreasonably long periods might result in a prosecution being time-barred because victims can assume prosecution as subsidiary complainants (plaintiffs) only after rejection of the criminal complaint by the PPO. The inactivity of the PPO in practice resulted in the rejection of a number of criminal complaints as time-barred (including in the Jasar case) and contributed to impunity of law enforcement officials for serious crimes such as torture, which may have occurred partly owing to the lack of independence of the PPO. The latter issue can be well demonstrated by the answer of the former Public Prosecutor of the Republic of Macedonia (Prosecutor General) to a journalist stating that his successor’s “hands are tied because with the present organisational structure of the Public Prosecution Office he will continue to be a marionette in the hands of the authorities”58 and that “until the Prosecutor has a police force under its own control, a bigger budget and control over wire-tapping, he will continue to depend on the will of the Ministry of Interior and high ranking State officials.”59
In May 2007 a Strategy on Criminal Law Reform was adopted. In accordance with the Action Plan for Strategy Implementation, four working groups were established within the Ministry of Justice (two for criminal law and two for criminal procedure law). Between 2008 and 2010, Macedonian authorities informed the Committee of Ministers that Article 282 of the Law on Criminal Procedure (LCP) “would be amended to provide a three-month deadline within which public prosecutors must decide on complaints. Where the public prosecutor fails to decide on a complaint within the prescribed period, he or she would be obliged so to inform the applicant and the superior prosecutor.”60 The updated draft LCP, published by the Ministry of Justice on 1 July 2010, entitles the PPO to conduct investigations with the assistance of judicial police.61
Article 275 of the 2010 draft LCP stipulates: “1. If the Public Prosecutor does not decide on the complaint within three months from the day of filing, he [or she] is obliged to immediately inform the person who filed the complaint and the superior prosecutor; and 2. Reasons for not deciding on the complaint are to be enclosed to the information from paragraph 1 of this law to the superior prosecutor.”62
Amendments to the Criminal Code adopted in 200963 raised the sentence for the basic crime of torture (Article 142.1) to three to eight years and for more severe forms of torture (Article 142.2) to at least four years.64
On 30 December 2008, the Macedonian Parliament enacted the Law on Ratification of the Optional Protocol to the Convention against Torture or Other Cruel, Degrading or Inhuman Treatment or Punishment. Article 4 stipulates that the Peoples’ Defender (the Ombudsman) is designated to act as a National Preventive Mechanism (NPM).65 To date the NPM has not become fully operational because the Government has not yet provided funds for the functioning of the section for prevention.
International human rights law has developed an approach which takes into account the vulnerability of victims of ill-treatment as related to their membership in groups that have been subjected to pervasive and systematic discrimination over a very long period of time, such as Roma. There is a growing consensus that individuals belonging to marginalised groups are entitled to a heightened level of human rights protection.66 The European Code of Police Ethics, for example, provides in Principle 49 that “Police investigation […] shall be sensitive and adaptable to the special needs of persons, such as […] minorities including ethnic minorities.”67 As demonstrated by the aforementioned human rights monitoring reports, Roma continue to be particularly vulnerable to police abuse in Macedonia and international human rights monitoring bodies have repeatedly urged the State to increase efforts to combat ill-treatment of and discrimination against persons belonging to ethnic minorities, in particular Roma.68 However, Macedonia’s Code of Police Ethics contains no provision providing for special protection to account for the particular vulnerability of Roma.69
In 2007 the Agent of the Government for Proceedings before the European Court for Human Rights (Government Agent) reported that “general measures involve translation and distribution of judgments to the authorities involved, to experts and general public, and analysis of the implemented legislation which is considered to have generated the violation.”70 However, the Government Agent emphasised its inability to secure implementation of measures expected from the Government, apart from translation and dissemination of the ECtHR judgments. It reiterated findings included in earlier reports that problems relating to execution of judgments arise because of the undefined system of execution of judgments, as well as the lack of authorisation and institutional capacities and opportunities of the Government Agent71 to propose and order appropriate activities or undertakings by various administrative and judicial bodies and to determine the dynamics of their activities. The Government Agent indicated a need for further institutional development of its position and for the establishment of an inter-ministerial body to analyse ECtHR judgments and propose appropriate measures for their execution.72 Despite these recommendations, the Inter-Ministerial Body for Human Rights, established in 2006, has not involved the Government Agent as a member; nor has it been entitled to analyse the Court’s judgments or design action plans for their execution.73
In 2009 a Bureau for Representation before the European Court was established through the Law on Representation of the Republic of Macedonia before the European Court of Human Rights.74
The 2009 Law on Execution of Judgments of the European Court of Human Rights envisages the establishment of an Inter-Ministerial Commission for Execution of European Court Judgments, composed of officials governing the Ministries of Justice (chairman), Interior, Foreign Affairs, Labour and Social Policy, Finance, Education, Health, Transport and Communications and Local Self-Government, as well as the President of the Judicial Council, the President of the Supreme Court, the President of the Council of Public Prosecutors, the Prosecutor General and the Government Agent.75 The Inter-Ministerial Commission analyses European Court judgments and the grounds which resulted in the finding of violation(s); recommends general measures for the purpose of remedying the violation(s) and preventing the occurrence of future violations; submits proposals for legislative improvement for the protection of human rights; monitors the execution of the ECtHR judgments, provides for the exchange of information and data in the field of execution of the European Court’s judgments; monitors the existing system of judgment execution; and proposes measures for its improvement.76 The Law stipulates that general measures encompass: changes and amendments of laws and by-laws that caused the violation and their implementation; changes in the behaviour of the competent subjects; providing legal expertise on legal provisions; improving the knowledge of judges, public prosecutors and other legal professionals; and other determined measures capable of preventing violations of the Convention, removing drawbacks of a systematic nature and providing compensation to victims of violations, subject to monitoring by the Committee of Ministers.77
During a visit to Macedonia of the Council of Europe’s Department for the Execution of Judgments of the European Court (the Department) on 13-14 March 2008, its representatives indicated that the Jasar case is the most complex of the adjudicated police violence cases against Macedonia indicating systematic lacunae in the legislation and practice of the Public Prosecution Office and the Ministry of Interior regarding criminal complaints filed against Ministry officials.78 A Deputy Prosecutor General is reported to have stated that the Jasar case was considered while drafting the new Law on the Public Prosecution Office to avoid the occurrence of similar problems and failures in future. However, the official described the Jasar case as “a time-barred case, resulting from individual proceedings of the then Basic Public Prosecutor of Štip who is no longer exercising this duty, rather than resulting from a systemic problem.”79
The Court has held many times that individual and general measures must put an end to the violation established and to remedy as much as possible the consequences of those violations, providing that such measures are compatible with the conclusions in the Court’s judgments.80 Based on the report of Macedonia’s Government Agent:
individual measures taken with an aim of providing redress on domestic level for the violation of the applicant’s rights which gave rise to the complaint before the European Court […] most often mean a possibility for acceleration of proceedings before domestic courts or administrative bodies, Prosecution offices or other State authorities, repetition or reopening of proceedings before domestic courts and so on, depending on the violation established by the judgment.81
General measures are intended to prevent similar violations from happening in the future.
As to the individual measures in Mr Jašar’s case, it appears that the PPO rejected the criminal complaint lodged by Mr Jašar back in 1998 as time-barred,82 apparently considering it under the less severe form of the offence “torture”.83 Therefore no effective individual measure for substantial execution of the Jasar judgment was possible, notably by reopening investigation proceedings.
Article 418.1(7) of the Law on Criminal Procedure provides for the possibility of reopening criminal proceedings within 30 days from the date that the ECtHR judgment becomes final; however, the law says nothing about cases in which there was a lack of effective procedure. Nevertheless the Government’s commitment to allow judicial review of already completed proceedings following ECtHR judgments leads to the conclusion that the authorities should open or reopen the investigation which was not effective since in such cases conducting an investigation is a prerequisite for consequent judicial examination. Therefore, an important way of complying with judgments in which a procedural violation of Article 3 is established owing to lack of effective investigation would be to instigate and complete an effective criminal procedure capable of identifying and – where appropriate – sanctioning the perpetrators.
The Court has held that Article 13 of the Convention:
guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this article is thus to require the provisions of a domestic remedy to allow the competent national authorities both to deal with the substance of the relevant complaint and to grant appropriate relief.84
In Macedonia, the only legal remedy capable of providing effective and adequate redress for victims of ill-treatment is a criminal procedure before a court. However, as described above, victims are still vulnerable to the possible inactivity of the Public Prosecutor, which seriously undermines its effectiveness.
In its 2009 report, the Government Agent reported particular problems regarding the implementation of the judgments where a violation of the right to effective investigation was established. In particular, the Ministry of Interior apparently abandoned a plans for an external oversight mechanism in favour of internal oversight, which does not assure an effective mechanism of external control over law enforcement bodies.85
As described above, Macedonia has not yet entirely fulfilled its obligations under Article 46 of the Convention in connection with the Jasar judgment. Macedonia has undertaken a series of noteworthy legislative and practical measures to improve the efficiency of the criminal justice system and to improve the process of execution of ECtHR judgments. Yet some challenges remain. The State must secure independent domestic monitoring of police conduct by creating a fully independent body for such purpose with involvement of the civil society. Prerequisites for more independent and efficient work of the PPO in cases of alleged police misconduct should be strengthened by: providing the PPO with an independent budget and possibly changing the manner of electing the General Prosecutor, enacting and properly implementing legal provisions guaranteeing the PPO’s efficient involvement in investigations and vigorous follow-up its work by superiors. As Macedonia currently holds the Chairmanship of the Council of Europe, there is a special opportunity for the State to demonstrate its commitment to uphold the fundamental rights enshrined in the European Convention by fully implementing the judgment in the Jasar case and other rulings of the European Court. In particular, at the September 2010 meeting of the Deputies of the Committee of Ministers the State should provide updated, comprehensive and accurate information regarding actual progress in the fight against ill-treatment by and impunity of law-enforcement officials, supported by statistical information on the number of cases reported, processed, and their conclusion, with particular reference to cases affecting vulnerable groups such as Roma.
- Zoran Gavriloski is a Legal Consultant at the Civil Society Research Centre (CSRC), a Macedonian non-governmental organisation dedicated to the promotion and protection of human rights and rule of law. He supported the representation of Mr Jašar before the European Court of Human Rights (ECtHR) by providing a legal analysis regarding the effectiveness of available Macedonian legal remedies, which was used at the oral hearing on 19 January 2006. The author wishes to thank Anita Danka, who was responsible for the representation of the Jasar case before the European Court of Human Rights on behalf of ERRC between 2005 and 2008, for her contribution to this study.
- The correct spelling of the applicant’s name is Pejrušan Jašar. For reference purposes, the author complies with the ECtHR’s case title: i.e. Jasar v Macedonia, Jasar case, Jasar judgment, etc.
- ECtHR, Jasar v The Former Yugoslav Republic of Macedonia, Application no. 69908/01, 15 February 2007, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=813762&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649, paragraphs 46-60.
- ECtHR, Dzeladinov and Others v The Former Yugoslav Republic of Macedonia, Application no. 13252/02, 10 April 2008, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=831065&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649. ECtHR, Sulejmanov v The Former Yugoslav Republic of Macedonia, Application no. 69875/01, 24 April 2008, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=834430&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649.
- See information in the section entitled “Developments in law and practice following the Jasar judgment.”
- ECtHR, Jasar v The Former Yugoslav Republic of Macedonia, Application no. 69908/01, admissibility decision, 11 April 2006, available at:: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=803162&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649.
- ECtHR Dzeladinov and Others v The Former Yugoslav Republic of Macedonia, Application no. 13252/02, admissibility decision, 6 March 2007, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=814697&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649. ECtHR, Sulejmanov v The Former Yugoslav Republic of Macedonia, Application no. 69875/01, admissibility decision, 18 September 2006, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=809135&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649. There is a fourth case regarding the Macedonian authorities’ failure to investigate effectively the applicant’s allegations of police ill-treatment involving a non-Romani victim: ECtHR, Trajkoski and Others v The Former Yugoslav Republic of Macedonia, Application no. 13191/02, 7 February 2008; available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=828671&portal=hbkm&source=externalbydocnumber&table=?F69A27FD8FB86142BF01C1166DEA398649.
- ECtHR, Jasar v The Former Yugoslav Republic of Macedonia, paragraph 55.
- Ibid., paragraph 58.
- Ibid., paragraph 59.
- The above description of the events and the Court’s ruling is based on: Anita Danka, “Strasbourg Court Finds Violation of Article 3 in the First Macedonian Roma Torture Case”, Roma Rights 1-2, (2007): 67-69, available at: http://www.errc.org/cikk.php?cikk=2815.
- Council of Europe, Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 12 to 19 July 2004, CPT/Inf (2006) 36, 15 November 2006.
- United Nations High Commissioner for Human Rights, Europe, Central Asia and North America Region Quarterly Reports of Field Offices, 2 June 2003, 17.
- Amnesty International, Europe and Central Asia: Summary of Amnesty International’s Concerns in the Region: July – December 2004 (31 August 2005), available at: http://web.amnesty.org/library/index/engeur010022005.
- Helsinki Committee for Human Rights of the Republic of Macedonia, Annual Report 2003, available at: http://www.mhc.org.mk/eng/a_izveshtai/a_2003gi.htm, paragraphs 3.1, 4 and 6.
- ERRC, “ERRC/CSRC Call for the Amendment of the Macedonian Draft Law on the Public Prosecution Office” press release, 6 July 2007, available at: http://www.errc.org/cikk.php?cikk=2845.
- The provisions proposed by CRSC and ERRC included obligations on prosecutors to: respond to requests for information on criminal proceedings within 15 days; provide reasons for failing to submit an indictiment to court or reject criminal charges if not brought within three months; and make decisions regarding the rejection or filing of criminal charges within set time periods. The CRSC and ERRC also proposed sanctions on prosecutors for inactivity within set guidelines.
- The submission was based on Rule 9 (2) of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
- In 2006 the Human Rights Support Project reported that in their recorded cases of misconduct or ill-treatment by the police, the only sanction imposed was fine in the amount of 15% of the monthly salary. There was no dismissal and the Internal Control Unit filed criminal charges against the police officers in only two cases. Out of the total of 33 criminal charges the Basic PPO brought an indictment in only one case. Petar Jordanovski, Legal analysis 2006 (November 2006), 6-7, 33.
- The latter was/is jeopardised by the manner of election of the Public Prosecutor of the Republic of Macedonia by the Parliament on the recommendation of the Government, thereby affecting independence of lower prosecutors who are responsible to their superiors within a strong hierarchical structure, and ultimately to the Public Prosecutor of the Republic of Macedonia.
- Upon request of the person alleging police abuse, a doctor of the person’s choice should examine him/her in addition to any medical examination carried out by a doctor called by the police authorities.
- Since a medical certificate is the basic means of evidence in cases alleging physical abuse by the police, it should be accessible for everyone. Members of the Romani community, many of whom live on social aid, do not have adequate access, if at all, to cover the costs of medical examination and certificates.
- ERRC and CSRC, Joint Memorandum to the Committee of Ministers of the Council of Europe, (7 October 2007).
- Recommendations by the World Organization Against Torture (OMCT - Cécile Trochu-Grasso and Orlane Varesano) the Civil Society Research Center (Zoran Gavriloski) and the Organisation for Emancipation, Solidarity and Equality of Women in the Republic of Macedonia - ESE (Jasminka Friščić) in their shadow report to the Committee Against Torture (2008); also published in OMCT and ESE, Human Rights Situation in Macedonia: Implementation of the Convention against Torture (2009).
- ERRC, ”UN Human Rights Committee to Review Macedonia”, press release, 20 March 2008, available at: http://www.errc.org/cikk.php?cikk=2946.
- Interview with Mr Jašar. Štip, Macedonia: 30 April 2010.
- Committee of Ministers, State of execution of 4 judgments [v Macedonia] concerning lack of effective investigation of allegations of ill-treatment by the police, June 2010, available at: http://www.coe.int/t/dghl/monitoring/execution/Reports/Current_en.asp.
- Interview with Mr Jašar. Štip, Macedonia: 30 April 2010.
- Ljupčo Šatevski, “The Man from Štip who Sued in Strasbourg was Beaten Again: After the Teeth, the Police Broke Jašar’s Ribs)”, Dnevnik, 6 November 2007.
- NGO Čerenja, “Stop for Brutal Beating of Roma by the Štip Police”, press release, 5 November 2007.
- Medical Certificate no. 9259, 12 November 2007, issued in Štip by Dr G.B.
- NGO Čerenja, “Stop for Brutal Beating of Roma by the Štip Police”, press release.
- Ljupčo Šatevski, “The Man from Štip who Sued in Strasbourg was Beaten Again: After the Teeth, the Police Broke Jašar’s Ribs”.
- Article 142 of the Criminal Code, applicable in 2007 (Official Gazette of the Republic of Macedonia, no. 19, 30 March 2004) stated: “(1) He, who in performance of his duties, as well as he who incited by a public official or with his consent, applies force, threat or other unpermissible means or an inpermissible treatment for such purposes as extracting confession or some other statement from the accused, witness, expert or other person, inflicting a severe physical or mental suffering to another person in order to punish him for an act he or a third person has committed or is suspected of having committed, or intidimating or coercing him to waive of his right, or for any reason based on discrimination of any kind, shall be punished with imprisonment from one to five years. (2) If the crime from paragraph 1 resulted in a severe bodily injury or other particularly severe consequences for the injured party, the perpetrator shall be punished with imprisonment from one to ten years.”
- Letter to Mr Jašar from Judge S.G., Štip Basic Court: 12 April 2010.
- Council of Europe, CPT Report on the visit to the Republic of Macedonia from 18 - 27 November 2002, CPT/Inf (2004)29, 9 September 2004, available at: http://www.cpt.coe.int/en/states/mkd.htm, paragraph 29.
- European Commission against Racism and Intolerance, Report on ”the former Yugoslav Republic of Macedonia” (fourth monitoring cycle), CRI(2010)19, 15 June 2010, available at: http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Former_Yugoslav_Republic_Macedonia/MKD-CbC-IV-2010-019-ENG.pdf, 33.
- For example in its report of January 2004, the UN Commission on Human Rights includes interviews indicating that “discrimination on the basis of ethnicity” as “a fundamental characteristic of many human rights violations within the former Yugoslav Republic of Macedonia” posed major challenges for NGOs in their work defending victims of ill-treatment and abuse by police. The report states that those who defend human rights are at risk and that the lack of domestic remedy for these human rights violations was cited as one of the reasons human rights defenders looked to international remedies. The report also cited the following contributing to impunity: the Ombudsman’s office is not an effective remedy; lawyers defending human rights are difficult to find; the lack of accountability even when the abuses are known is a significant impediment; the complaints procedure is not transparent and encourages impunity; and the judiciary is not independent. Commission on Human Rights, Promotion and Protection of Human Rights: Human Rights Defenders: Report submitted by the Special Representative of the Secretary-General on the Situation of Human Rights Defenders, Hina Jilani, 15 January 2004, available at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/6edf364688b31535c1256e4a00380110?Opendocument.
- Interview with Mr Jašar. Štip, Macedonia: 30 April 2010.
- Article 10.2 reads: “If the Party fails to co-operate or refuses to improve the situation in the light of the Committee’s recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter.” Council of Europe, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, available at: http://www.cpt.coe.int/en/documents/ecpt.htm.
- Council of Europe, CPT Report on the visit to the former Yugoslav Republic of Macedonia from 30 June – 3 July 2008, CPT/Inf (2008)31, 4 November 2008, available at: http://www.cpt.coe.int/en/states/mkd.htm, 6.5.
- Ibid., 16.33.
- Ibid., 11.16.
- Committee against Torture, Concluding observations of the Committee against Torture: The former Yugoslav Republic of Macedonia, 21 May 2008, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/421/49/PDF/G0842149.pdf?OpenElement, 16.
- Ibid., paragraphs 6 and 20.
- UICPS, Annual reports, covering 2007, 2008 and 2009, available at: http://www.mvr.gov.mk/DesktopDefault.aspx?tabindex=0&tabid=130.
- Helsinki Committee for Human Rights of the Republic of Macedonia, Annual Report 2009, available at: http://www.mhc.org.mk/WBStorage/Files/GODISEN_IZVESTAJ_2009_MK.pdf, 90, 115, 124, 166 and 190-191.
- Ibid., 155.
- Ibid., 82.
- Ibid., 141 and 156-157.
- Commissioner for Human Rights, Report by the Commissioner for Human Rights on his visit to ”the former Yugoslav Reoublic of Macedonia” 25-29 February 2008, 11 September 2008, available at: https://wcd.coe.int/ViewDoc.jsp?id=1341983&Site=CommDH&BackColorInternet=FEC65B&BackColorIntranet=?FEC65B&BackColorLogged=FFC679, 12.
- Ibid., 21.
- ECRI, Report on ”the former Yugoslav Republic of Macedonia”, 8 and 32.
- Official Gazette of the Republic of Macedonia, no. 150/07, 12 December 2007.
- In the last decades, no General Prosecutor (GP) has completed his/her term of office. The GP is usually dismissed soon after Parliamentary elections by the Parliament, the latter de facto being under significant influence of the executive. Only after adoption of the Law on the Council of Public Prosecutors of the Republic of Macedonia (published in Official Gazette no. 150/07, 12 December 2007) did the competence for election of other public prosecutors (basic, higher and those dealing with organised crime) transfer from the Parliament to the Council of Public Prosecutors.
- Gordana Duvnjak, “Does Anyone Hears the Public Prosecutor”, Utrinski Vesnik, 1 July 2010.
- Macedonian authorities provided this information to the Committee of Ministers on 14 March 2008, 15 October 2008, 29 June 2009 and 5 January 2010. Committee of Ministers, State of execution of 4 judgments [v Macedonia] concerning lack of effective investigation of allegations of ill-treatment by the police, June 2010, available at: http://www.coe.int/t/dghl/monitoring/execution/Reports/Current_en.asp.
- Draft Law on Criminal Procedure, available at: http://www.justice.gov.mk/documents/ZKP_bez_TC.pdf, Chapter XXI.1.
- Ibid., Article 275.
- Official Gazette of the Republic of Macedonia no. 114/09, 14 September 2009.
- The Criminal Code (as published in the Official Gazette of the Republic of Macedonia no. 37/96 of 23 July 1996) established imprisonment of between three months and five years under Article 142.1 and at least one year imprisonment under Article 142.2. The penalty prescribed by the 2004 Amendments to the Criminal Code (Official Gazette of the Republic of Macedonia no. 19/04 of 30 March 2004) established one to five year imprisonment under Article 142.1 and one to 10 years imprisonment under Article 142.2.
- Official Gazette of the Republic of Macedonia no. 165/08, 30 December 2008.
- Alexander H.E. Morawa, “Vulnerability as a Concept of International Human Rights Law”, Journal of International Relations and Development (2003): 139-155.
- Committee of Ministers, The European Code of Police Ethics, Recommendation Rec(2001)10.
- Committee against Torture, Concluding observations of 5 May 1999, 106-107; CAT, Concluding Observations 2008, 20.
- Official Gazette of the Republic of Macedonia no. 72/07.
- Agent of the Government for Proceedings before the European Court for Human Rights (Government Agent), Information with Annual Report on the Work of the Government Agent and Analysis of Cases and Proceedings Versus the Republic of Macedonia Before the European Court of Human Rights for 2007, Skopje, April 2008, 16-17.
- In 2006, a Section for Support of the Work of the Government Agent was established within the Ministry of Justice’s Sector for International Legal Aid.
- Government Agent, Report for 2007, 19-20; Government Agent, Information on the State of Cases Versus the Republic of Macedonia Before the European Court of Human Rights for 2008, Skopje, April 2009, 22-23.
- Government Agent, Report for 2007, 20.
- Official Gazette of the Republic of Macedonia no. 67/09, 29 May 2009, 11-13.
- Ibid., 16-19
- Ibid., Article 11.
- Ibid., Article 27.
- Government Agent, Information on the Visit of the Department for Execution of Judgments of the European Court of Human Rights, undated, 4.
- Ibid., 8.
- ECtHR, Sejdovic v. Italy, Application no. 56581/00, 1 March 2006, 119.
- Government Agent, Report for 2007, pp. 16-17.
- Committee of Ministers, State of execution of 4 judgments [v Macedonia] concerning lack of effective investigation of allegations of ill-treatment by the police, June 2010, available at: http://www.coe.int/t/dghl/monitoring/execution/Reports/Current_en.asp.
- Criminal Code, 23 July 1996, Articles 107 and 142.
- ECtHR, Aksoy v. Turkey, Application no. 21987/93, 18 December 1996, Paragraph 95.
- Government Agent, Report for 2009, 18.