European Court of Human Rights Declares Macedonia Roma Rights Case Admissible
11 May 2006
Strasbourg Court to Rule on Macedonian Roma Torture Case for the First Time in its History
Budapest, Skopje. In a decision communicated last week, the European Court of Human Rights has declared admissible the application of Mr. Pejrusan Jasar against Macedonia.
On 16 April 1998, Mr. Pejrusan Jasar, a Romani man from Stip, Macedonia, was in a local bar where gambling took place. One of the losing gamblers complained that the dice were fixed, drew a firearm, and fired several gunshots. Several police officers were called to the bar. Mr. Jasar maintains that police officers grabbed him by his hair and forcibly placed him in a police van. During his detention in police custody, he was kicked in the head, punched and beaten with a truncheon by a police officer. Medical protocols provided immediately after Mr. Jasar was released from police custody the following morning stated that he had sustained numerous injuries to his head, hand and back.
In May 1998, Mr. Jasar, represented by local attorney Mr. Jordan Madzunarov together with the European Roma Rights Centre (ERRC), filed a criminal complaint with the public prosecutor against an unidentified police officer. In the more than eight years intervening, no steps have ever been taken to investigate the complaint. Mr. Jasar also brought civil proceedings for damages against the Macedonian State. These were dismissed in October 1999.
Having exhausted available domestic remedies, the ERRC and Mr. Madzunarov filed a claim at the European Court of Human Rights on behalf of Mr. Jasar against Macedonia on 1 February 2001. Mr. Jasar and his advocates complained that he had been subjected to acts of police brutality amounting to torture, inhuman and/or degrading treatment, as banned under Convention Article 3. Furthermore, it was argued that the fact that prosecuting authorities' failed to carry out any official investigation capable of leading to the identification and punishment of the police officers responsible for the ill-treatment constituted a procedural violation of the same article. It was further noted that Mr. Jasar's lack of access to an effective remedy with respect to the authorities' failure to investigate his allegations of ill-treatment violated Article 13 of the Convention read in conjunction with Article 3.
In challenging Mr. Jasar's claims, the Macedonian Government submitted that he had not exhausted domestic remedies pursued all possibilities for justice in Macedonia -- in respect of his complaints of ill treatment. The Government therefore argued that the application should be ruled inadmissible. In the Government's view, Mr. Jasar should have complained to the officer in charge of the station or to the Sector for Internal Control within the Ministry of Interior, such that disciplinary proceedings could have been instituted against the police officers responsible. The Government also took issue with the fact that Mr. Jasar did not initiate administrative proceedings challenging the actions of the police before the Supreme Court. He also failed to bring the alleged police brutality to the attention of the Ombudsman, the Government argued.
In deciding on whether to hear the case, the Court reiterated that for the purposes of reviewing whether Mr. Jasar had in fact pursued all available opportunities for legal remedy in Macedonia, it is essential to have regard to the circumstances of the individual case. The Court held, "This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies."
The Court accepted Mr. Jasar's arguments and noted that the possibility of initiating a disciplinary or internal inquiry into alleged ill-treatment cannot generally be regarded as an effective remedy in this context as these bodies lack the necessary independence. In the Court's view, Mr. Jasar could have not availed himself of the possibility of bringing an administrative dispute before the Supreme Court for ill-treatment, as this is only possible under Macedonian domestic law when the victim has no alternative court remedy at his disposal. The Court held that the Ombudsman also cannot be considered an effective remedy, as this body is not empowered to address binding decisions to the Government, but rather may only formulate recommendations.
In the view of the Court, by filing a criminal complaint and civil action to obtain damages, Mr. Jasar "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. In the normal course of events this would be regarded as fulfilling the requirements of […] the Convention in respect of his complaints under Article 3 and it would not be necessary to institute any other procedures." The Strasbourg Court also accepted ERRC's argumentation that as no official effective investigation into the victim's allegations had been carried out, he had been suffering a continuing violation of the Convention's provisions.
Decision on the merits of the case is pending.
For further information on the case, please contact ERRC Staff Attorney Anita Danka: email@example.com, +36-1-413-2221.
The ERRC's work in Macedonia is currently supported by funding from the European Union's CARDS program, as well as funding from the Swedish International Development Cooperation Agency (SIDA).