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FIFTH
SECTION
CASE OF TRAJKOSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 13191/02)
JUDGMENT
STRASBOURG
7
February 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Trajkoski v. the former Yugoslav Republic of
Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and Claudia Westerdiek, Section
Registrar.
Having
deliberated in private on 15 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13191/02) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by six Macedonian nationals,
Mr Cvetan Trajkoski and Mr Nikola Trajkoski, Mrs Snezana Trajkoska,
Mr Igorce Simonoski, Mr Cvetan Simonoski and Mrs Ratka
Simonoska, on 26 September 2001.
- All
applicants were represented by Mr D. Miloseski, a lawyer practising
in Prilep. The Macedonian Government (“the Government”)
were represented by their Agent, Mrs R. Lazareska Gerovska.
- The
application concerned complaints under Articles 6 and 13 of the
Convention and Article 1 of Protocol No. 1. In a letter received by
the Court on 28 January 2002, Mr Cvetan Trajkoski also complained
that he had been ill-treated by the police.
- On
1 December 2005 the Court decided to communicate to the
Government the complaint raised by Mr Cvetan Trajkoski (“the
applicant”) under Article 3 of the Convention and declared the
remainder of the application inadmissible. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of that complaint at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Prilep.
- In
a number of administrative proceedings, the applicant challenged the
lawfulness of administrative decisions related to the construction
and operation of a petrol station that was located a few metres from
his home. He also brought criminal charges against the state
officials who took the relevant decisions and against the manager of
the petrol station.
1. The incident
(a) The applicant's version of events
- On
30 January 2001 at 8.20 p.m. the applicant, accompanied by his wife
and Mr P.N., went to the Prilep police station to report the
possibility of a fire and explosion at the petrol station as a result
of alleged improper handling of petrol stocks at the time. Upon their
arrival, they had parked their car in front of an access ramp on the
street in front of the police station. At the warden's request, the
applicant had moved his car to a car park situated behind the “Lipa”
hotel. After the applicant had entered the police station, the same
officer had pushed him backwards. In his initial submission, the
applicant stated that a gun had also been pointed at his head. Seven
or eight police officers had arrived at the scene and had assaulted
him, grabbing him by his arms, legs and hair and throwing him against
the stairway. They had continued hitting and beating him all over his
body. During the beating, the police officers had used offensive
language.
(b) The Government's version of events
-
The Government submitted that the applicant had parked his car in
front of the entrance of the Prilep police station on a street on
which no traffic and parking had been allowed. They further
maintained that he had failed to move his car despite having been
ordered to do so by the police officers on duty. The applicant had
then entered the police station without identifying himself. He had
ignored the officers' verbal order that he leave the building. He had
actively resisted when police officers took him out of the station.
2. Subsequent events
- A
medical certificate (“the first certificate”) issued on
30 January 2001 at 9.15 p.m. indicated that the applicant had
sustained several bodily injuries which did not qualify as grievous.
A tranquilliser was prescribed. That certificate did not specify the
possible origin of the injuries, their timing or the way in which
they had been inflicted.
-
After communication of the case, the applicant obtained another
medical certificate issued on 11 May 2006 by the Prilep Hospital
which described the applicant's injuries, noted on the first
certificate, in the following terms: slight redness on the right
temple, a scratch on the right ankle and a toe. In addition, it was
noted that his right elbow and the left side of his hip were tender.
- After
communication, the applicant also obtained a forensic expert report
of 23 May 2006 concerning his post-incident trauma. That report,
which was based on the medical records and the applicant's statement,
indicated that, after the incident, the applicant had a bruise on his
left elbow, a scratch on his left shinbone and bruises on his face
below his left eye and on his left hip.
- No
court decision about the incident at issue has been given against the
applicant.
3. Application before the Sector for Internal Control within the
Ministry of the Interior (“the Sector”)
-
On 30 January 2001 the applicant asked the Sector to investigate the
incident. On 23 August 2001 the Sector drew up a report giving a
factual account of the incident. It established that the applicant
had been taken out of the building after he had ignored the officers'
verbal order to that effect. He had actively resisted the police
officers and he had behaved in an arrogant manner. It found that
there had been no abuse of power by the police in their attempts to
subdue the applicant. It further stated that on 6 February 2001
an application for misdemeanour proceedings had been submitted
against the applicant under the Act on minor offences against public
order. That application indicated, inter alia, that policemen
had grabbed the applicant by his arms and taken him outside the
police premises.
3. The criminal investigation
-
On an unspecified date, the applicant brought before the public
prosecutor criminal charges against Mr P.R., a police officer who had
allegedly participated in the incident, for having ill-treated him
while on duty. It cannot be established whether the applicant
complained about other policemen as well.
- The
Government stated that on 9 March 2001 the public prosecutor
requested that additional inquiries be made by the Ministry of the
Interior (“the Ministry”). The latter submitted an
official report about the incident in reply. No evidence was
submitted in support of that assertion.
-
On 15 May 2001 the public prosecutor rejected the applicant's
complaint, arguing that the alleged offence was not considered to be
a crime that could be prosecuted upon his motion. It was established
that on 30 January 2001 the applicant had parked his car in
front of the entrance of the Prilep police station, blocking the
police cars' way. He had shouted at police officers and threatened to
set the petrol station on fire. Mr P.R. and Mr K.N., another police
officer, had ordered the applicant to move his car. After having
questioned Mr P.R. and other police officers, including Mr P.N.,
who had been present at the scene at the time, the public prosecutor
established that Mr P.R. had not ill-treated the applicant, nor had
the latter been subjected to inhuman and degrading treatment. No gun
had been pointed at him by Mr P.R. or by any other police officer. It
was finally concluded that Mr P.R. had not committed the offence
complained of or any other prosecutable act.
-
On 22 May 2001 the applicant lodged a subsidiary criminal complaint
against Mr P.R. and four other unidentified police officers with the
Prilep Court of First Instance (“the trial court”). He
complained that he had been shouted at, insulted, beaten and dragged
across the floor and that as a result he had sustained light bodily
injuries and bruises. He requested that the trial court hear
statements from him, his wife and Mr P.N., who had been an eyewitness
to the incident, as well as from Mr K.N.
-
On 20 June 2001 the trial court requested that the applicant make his
complaint more specific by providing the names of the unidentified
police officers.
-
On 26 June 2001 the applicant informed the trial court that he was
unable to discover the identities of the remaining police officers.
He pointed out that one of them had been a warden and the other a
guard at the time of the events. He further maintained that the trial
court could officially request information about their identities and
that he would easily be able to confirm it afterwards.
-
On 2 July 2001 the trial court rejected the applicant's subsidiary
complaint as incomplete, namely because he had not identified the
remaining four police officers. No comment was made as to the charges
against Mr P.R.
-
On 1 August 2001 the applicant appealed against that ruling, arguing
that the trial court had failed to investigate his allegations, and
that he had no effective way of discovering the identities of the
police officers concerned but that he would be able to identify them
in a line-up.
-
On 7 November 2001 the Bitola Court of Appeal upheld the trial
court's ruling.
-
On 25 December 2001 the public prosecutor informed the applicant that
there were no grounds for lodging a request for the protection of
legality with the Supreme Court.
II. RELEVANT DOMESTIC LAW
- Section
254 § 1 (1) of the Criminal Proceedings Act (“the Act”)
provides that an indictment should contain, inter alia,
personal information about the person accused.
-
In accordance with section 255 § 2 of the Act, the president of
the adjudicating panel examines whether the indictment has been duly
completed, and if it has not, he/she shall return it to the claimant,
who shall to rectify it within three days. If an injured party does
not comply with that time-limit, the prosecution shall be considered
as having been withdrawn and the proceedings shall be suspended
accordingly.
-
Other statutory provisions relevant to the present case are described
in the Jasar case (see Jasar v. the former Yugoslav
Republic of Macedonia, no. 69908/01, §§ 31-40,
15 February 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been subjected to acts of police brutality on the occasion of his
visit to the police station to discuss the issue of the petrol
station. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties' submissions
- The
Government submitted that the applicant had not exhausted all
domestic remedies in respect of his complaints of ill-treatment since
he had not claimed compensation or brought the alleged police
brutality to the attention of the Ombudsman, who was empowered to
recommend the initiation of disciplinary proceedings and to bring
criminal complaints before the public prosecutor.
- As
to the criminal complaint, the Government maintained that the public
prosecutor had undertaken the required investigative measures (see
paragraph 15 above). After he had rejected the applicant's
allegations, the latter had taken over the prosecution. By failing to
identify the remaining four police officers, apart from Mr P.R., the
applicant had deprived himself of the possibility to have his
contentions considered by the domestic courts.
- The
applicant submitted that he had made a criminal complaint to the
public prosecutor, thus initiating a procedure capable of leading to
the identification and prosecution of the alleged perpetrators of the
assault. After his complaint had been rejected, he had taken over the
prosecution, but to no avail. As to the Ombudsman, the applicant
stated that he could not be regarded as an effective remedy since he
had no judicial powers. He further argued that in his case, a civil
compensation claim would be devoid of any prospect of success given
the fact that no guilt had been established in the course of the
criminal proceedings.
2. The Court's assessment
- The
Court notes that the applicant brought his allegations about
ill-treatment by the police to the attention of the authorities,
namely the Sector and the public prosecutor, placing them under a
duty to carry out an appropriate investigation. He further instituted
a court procedure able to establish the facts and attribute
responsibility. For the reasons detailed in the Jasar case
(see Jasar v. the former Yugoslav Republic of Macedonia (dec.),
no. 69908/01, 19 January and 11 April 2006) which likewise apply
to this case, the Court considers that the applicant's complaint
cannot be declared inadmissible for non-exhaustion of domestic
remedies within the meaning of Article 35 of the Convention. The
Government's objection must accordingly be rejected. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the police had not had recourse to any
coercive measure, nor had the applicant been subjected to inhuman and
degrading treatment. Relying on the Court's jurisprudence, they
further argued that neither the applicant's injuries nor the conduct
of the policemen could qualify him as having been tortured. The use
of physical force had clearly been regulated by the national
legislation, under which any recourse to force must be strictly
necessary and proportionate.
- Having
regard to the facts of the case, in particular the Sector's report
(see paragraph 13 above) and the measures taken by the public
prosecutor (see paragraph 15 above), the Government argued that an
effective investigation into the applicant's allegations had been
carried out. They submitted that all the relevant facts had been
established in a timely fashion, despite the applicant's failure to
provide information about the identity of the police officers
concerned, a fact that hampered the investigation.
- The
applicant maintained his allegations that he had been ill-treated by
policemen during his visit to the Prilep police station to discuss
issues related to the petrol station. He further submitted that the
Government's arguments were contradictory. The public prosecutor had
not taken any effective measure to discover who the perpetrators
were, although, as was evident from the Sector's records, the
Ministry had been aware of their identity. No statement had been
taken from the eyewitnesses put forward. No effective investigation
had been carried out with respect to Mr P.R., whose identity was
known to the trial court.
2. The Court's assessment
(a) Substantive limb: alleged inhuman and
degrading treatment
(i) General principles
- The
Court recalls that Article 3 of the Convention prohibits in absolute
terms torture and inhuman or degrading treatment. Ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum is relative: it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim. In respect of a person
deprived of his liberty, recourse to physical force which has not
been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3. Treatment has been held by the Court to be “inhuman”
because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense
physical and mental suffering, and also “degrading”
because it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them.
- In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. The question whether the purpose
of the treatment was to humiliate or debase the victim is a further
factor to be taken into account, but the absence of any such purpose
cannot conclusively rule out a finding of violation of Article 3 (see
Labita v. Italy [GC], no. 26772/95, §§ 119-120, ECHR
2000-IV). Allegations of ill-treatment must be supported by
appropriate evidence (see, mutatis mutandis, Klaas v.
Germany, judgment of 22 September 1993, Series A no. 269,
pp. 17-18, § 30).
- To
assess this evidence, the Court adopts the standard of proof “beyond
reasonable doubt”, but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see the Jasar
judgment, cited above, § 48).
(ii) Application of these principles in
the present case
- The
Court notes at the outset as undisputed that during the incident of
30 January 2001, the police took the applicant out of the Prilep
police station by force. The Sector confirmed this in its
fact-finding report and it was not denied by either of the parties.
- The
Court finds that during his visit to the Prilep police station, the
applicant distinguished certain injuries. This was corroborated by
the medical certificates (see paragraphs 9 and 10 above). The
injuries did not require any medical or drug treatment - only a
tranquilliser was prescribed. The
Government also did not contest the injuries.
- The
Court, however, observes that the description of the injuries noted
on those certificates contradict that given in the forensic expert
report (see paragraph 11 above) submitted before it by the applicant
himself. This inconsistency concerns not only the side of the
applicant's body which was injured, but also the nature of the
injuries.
- Furthermore,
the Court notes that the applicant and
the Government provided two conflicting accounts of events as of how
the injuries had been sustained. The Court considers that at least
partly the injuries might have been brought by the applicant's own
provocative behaviour and the need to remove him from the police
premises by force. In that respect, the Court finds that the
applicant did not provide sufficient evidence to support his version
of events. The inconsistency concerning the medical certificates
noted in the preceding paragraph corroborates that conclusion. That
being so, the evidence before it does not enable the Court to find
beyond reasonable doubt that during his visit to the police station
the applicant was subjected to inhuman or degrading treatment within
the meaning of Article 3 of the Convention.
- Accordingly,
it concludes that that there has been no violation of the substantive
limb of Article 3 of the Convention.
(b) Procedural limb: alleged lack of an
effective investigation
(i) General principles
-
The Court recalls that where an individual makes an arguable
assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other similar 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 (see Corsacov v. Moldova, no. 18944/02,
§ 68, 4 April 2006; Labita, cited above, § 131,
ECHR 2000 IV; McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324,
p. 49, § 161; Kaya v. Turkey, judgment of
19 February 1998, Reports 1998 I, p. 324, § 86;
Yaşa v. Turkey, judgment of 2 September 1998,
Reports 1998 VI, p. 2438, § 98).
- Finally,
the investigation must be expeditious. In cases under Articles 2
and 3 of the Convention, where the effectiveness of the official
investigation was at issue, the Court has often assessed whether the
authorities reacted promptly to the complaints at the relevant time
(see, among others, Labita, cited above, § 133).
(ii) Application of these principles in
the present case
- The
Court considers that, taken together, the applicant's complaints to
the public prosecutor's office and the Sector, that he had sustained
injuries at the hands of the police, raised a reasonable suspicion
that the said injuries could have been caused by the police as
indicated by the applicant, which warranted an investigation by the
authorities in conformity with the requirements of Article 3 of the
Convention.
- The
Court observes that the Sector's report was drawn up nearly seven
months after the applicant had made his complaint. The Government
gave no explanation for that delay. In addition, the Court cannot
establish whether that report was communicated to the applicant.
- The
public prosecutor, after having examined the applicant's allegations
on the merits, rejected them finding no evidence of an offence. His
conclusions were based solely on the statements of the police
officers involved.
- In
the subsidiary criminal proceedings the applicant reiterated his
allegations of having been beaten by the police. He provided the
identity of one of the police officers involved and left it to the
court to identify the remaining four. The Court accepts that the
identities of all the perpetrators could have been unknown to him. It
further considers the trial court's insistence that the applicant
discover the identity of the other accused himself to be an excessive
formalism. Their identity could easily have been discovered, as
argued by the applicant, from the official police records. Instead,
the trial court rejected the applicant's complaint as incomplete
without taking any further action. Moreover, this is no explanation
why the trial court did not continue the proceedings at least against
Mr P.R. However, it took no steps to hear witnesses, although put
forward by the applicant, including the doctor who had examined him.
The applicant's complaints remained therefore without a judicial
consideration on the merits.
- Against
this background, the Court concludes that the investigation into the
applicant's claim that he had sustained injuries at the hands of the
police was not thorough and effective. Thus, the Court finds that
there has been a violation of the procedural limb of Article 3
of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 500, 000 euros (EUR) in respect of non-pecuniary
damage. The forensic expert report of 23 May 2006 concerning his
post-incident trauma (see paragraph 11 above) was produced to that
effect.
- The
Government did not comment on the applicant's claims in respect of
non-pecuniary damage.
- The
Court observes that it has found the authorities of the respondent
State to be in breach of Article 3 on account of their failure to
investigate the applicant's allegations of police brutality. It found
no violation on the substance of that complaint. In its
view, the applicant must be taken to have suffered some degree of
frustration and anguish as a result of the lack of concern displayed
by the authorities with respect to his complaint. Making an
assessment on an equitable basis, it awards the applicant the sum of
EUR 1, 000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 2, 590 for the costs and expenses incurred
before the Court. These included EUR 35 for the medical certificate
of 11 May 2006 and EUR 200 for the forensic expert report referred to
above. The remainder concerned the fees of the lawyer who represented
the applicant in the proceedings after his complaint had been
communicated to the respondent Government, namely EUR 420 for letters
of authority issued to twelve individuals who had allegedly initially
complained before the Court and EUR 1, 935 for three submissions
lodged with the Court. He did not specify what those submissions
were, nor did he attach a fee note.
- The
Government did not comment on the applicant's claims for costs and
expenses.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum (see Editions Plon v. France, no. 58148/00, § 64,
ECHR 2004 IV). In the present case, regard being had to the
information in its possession and the above criteria, the Court finds
the amount claimed for lawyer's fees to be excessive and awards
instead the sum of EUR 600 in that respect. It further
considers that the costs related to the forensic expert report were
not necessarily incurred and, accordingly,
rejects the claim in that part. On the other hand, it awards
the whole sum claimed for the remaining costs. The total award under
this head therefore is EUR 635.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaint under Article
3 admissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros) in respect of non-pecuniary
damage;
(ii) EUR 635 (six hundred and thirty-five euros) in respect of
costs and expenses; and
(iii) any tax that may be chargeable on the above amounts;
(b)
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
