Macedonia Again Found in Violation of the European Convention on Human Rights

14 April 2008

Strasbourg Court Finds Violation of Article 3 in the Second Macedonian Roma Torture Case

Budapest, Strasbourg, Skopje, 10 April 2008: In a judgment announced yesterday, the European Court of Human Rights ruled that Macedonia violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in connection with the ill-treatment by the police of Mr Amdi Dzeladinov, Mr Dudzihan Kamilov, Ms Remzie Durmišova, Mr Dagistan Alilov and Mr Mefail (Meta) Asanovski, Macedonian nationals of Romani ethnic origin.

The facts of the case are as follows:

Around midnight on 2/3 August 1998, a group of Romani individuals was returning home from the restaurant Krushevo in the town of Stip. On the street in front of the restaurant, an argument broke out between this group and Mr Zoran Shorov, a former wresting champion employed by the police who was driving by.

Mr Sebajdin Usinov, a member of the Romani group, testified that he was almost hit by Mr Shorov's car, which was speeding. Mr Usinov yelled "are you blind", which might have made Mr Shorov angry (the applicants testified at several stages of the procedure that Mr Shorov smelled of alcohol) as he immediately parked his car for confrontation. Based on the witness statement given by Mr Memet Jusinov to the Association for the Protection of Roma Rights (ARRP) on 1 September 1998, after Mr Shorov got out of his car he immediately started hitting Sebajdin and a fight broke out. He, Dagistan Alilov and Amdi Dzeladinov intervened to separate the fighters, then he left the scene. Amdi Dzeladinov also stated to ARRP on the same day that they managed to separate the two fighters, but Mr Shorov wanted to wait for the police to come.

Several police officers arrived at the scene and indiscriminately used physical force and truncheons against the Romani people in the restaurant and others gathered outside. As a result of the raid, about twenty Romani persons had to seek medical help at the Stip hospital. During the following two days, seven Roma were individually taken to the police station in relation to the raid and were subjected to various kinds of ill-treatment during questioning.

On 11 August 1998, Mr Dzeladinov, Mr Kamilov, Ms Durmishova, Mr Alilov and Mr Asanovski (the applicants), together with several other Romani individuals, filed a criminal complaint with the Stip Public Prosecutor's Office against unidentified police officers for the crime of Torture under Article 142 paragraph 2 of the Macedonian Criminal Code. There no effective official investigation capable of identifying the perpetrators and provide a remedy for the victims. On 12 December 2001, the ERRC filed a complaint with the European Court of Human Rights on behalf of the applicants, claiming violations of Articles 3 (prohibition of torture) and 13 (right to an effective remedy) of the European Convention on Human Rights. The applicants complained under Article 3 of the Convention that they had been subjected to acts of police brutality amounting to torture, inhuman and/or degrading treatment. They also argued that the prosecuting authority's failure 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 Article 3. Finally, they argued that they did not have access to an effective remedy with respect to the prosecuting authority's failure to investigate the allegations of ill-treatment, in violation of Article 13 of the Convention, read in conjunction with Article 3.

On 6 March 2007, the European Court of Human Rights declared the case admissible.

In its ruling, the Court reiterated 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, 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. As with an investigation under Article 2, "such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity."

The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must take all reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation must be expeditious. In cases under Articles 2 and 3 of the Convention, where the effectiveness of the official investigation is at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time.

In the present judgment, the European Court emphasised that, "the public prosecutor was under a duty to investigate whether an offence had been committed. However, he did not take any investigative measures after receiving the criminal complaint, apart from requesting that the Ministry make additional inquiries … He took no steps to identify the officers involved in the police raid, nor is there any indication that any witnesses or police officers concerned were questioned about the incident. No consideration was made as to what possible justification there might have been for the physical force used against the applicants. In conclusion, the public prosecutor took no steps to find any evidence confirming or contradicting the account given by the applicants…. In addition, the inactivity of the public prosecutor prevented the applicants from taking over the investigation as subsidiary complainants and denied them access to subsequent challenges in the context of the criminal proceedings."

Considering that there was no investigation into the applicants' claim that they had sustained the alleged injuries at the hands of the police, the Court found that there has been a violation of Article 3 of the Convention in this respect and awarded non-pecuniary damages to all of the victims.

Reports made by international bodies over the last years, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and local human rights organisations repeatedly confirm that physical ill-treatment of persons in police custody and subsequent impunity of the perpetrators is a serious problem in Macedonia. In their report published on 13 February 2008, the CPT stressed the "persistent non-implementation of its recommendations by the national authorities" and requested an interim response from the Government as regards combating impunity, the conditions of detention in prisons and the treatment and care of particularly vulnerable persons.

In its current assessment published on 4 April 2008, the UN Human Rights Committee noted "the longstanding concerns about the behavior of certain elements of the police forces, including ill-treatment of detainees, as well as reports of deficiencies of the current police internal oversight mechanisms." It was particularly "concerned about reports of police violence against members of minority groups, in particular against Roma, and the lack of effective investigation of such cases" and it called on Macedonia to ensure that "that all allegations of ill-treatment are investigated and those found responsible punished" together with an establishment of an independent monitoring body for the police.
This was the second time that Macedonia was found in violation of the European Court of Human Rights in connection with the physical abuse of Roma by police and lack of adequate state response. It is particularly alarming that irrespective of the repeated concerns expressed by international and domestic human rights monitoring organisations over the last years the situation did not change, moreover, even the European Court's judgment in the first police brutality case against Macedonia in February 2007 (Jasar v. Macedonia) did not prevent the applicant to be beaten again by the police in November last year, just 8 months following the judgment.

The full text of the decision is available here: View it (Acrobat pdf format)! .

The ERRC’s work in Macedonia is currently supported by the Swedish International Development Cooperation Agency (SIDA), Open Society Institute and the Sigrid Rausing Trust.

For further information on the case, please contact
Anita Danka, Staff Attorney (anita.danka@errc.org; +36-1-413-2221).