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FIFTH
SECTION
CASE OF
SULEJMANOV v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 69875/01)
JUDGMENT
STRASBOURG
24
April 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 Sulejmanov v. the former Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 18 September 2006 and on 25 March 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 69875/01) 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 a Macedonian national,
Mr Demir Sulejmanov (“the applicant”), on 11 May
2001. He died on 6 December 2001. On 18 September 2006, the
Court granted the request of the applicant's sisters,
Ms Demiran Sulimanova and Ms Remzie Durmiseva, to pursue
the application after his death.
- The
applicant was represented by the European Roma Rights Centre (“the
ERRC”), based in Budapest, Hungary and Mr J. Madjunarov, a
lawyer practising in Štip. The Macedonian Government (“the
Government”) were represented by their Agent, Mrs R. Lazareska
Gerovska.
- The
applicant alleged, in particular, that he had been ill-treated by the
police and that no investigation had been carried out by the
prosecuting authorities. In that respect, he relied on Articles 3 and
13 of the Convention.
- On
18 September 2006, the Court declared the applicant's complaints
under Articles 3 and 13 admissible and the Article 14 complaint
inadmissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. The incident
(a) The applicant's version of events
- On
13 March 1998, the applicant and his friend S. D., both of Roma
ethnic origin, were stopped by two police officers near the village
of Balvan on suspicion of having stolen two sheep. The police
officers, without asking any questions, immediately started to beat
him and his friend on their heads and bodies with their truncheons,
which caused bleeding from the applicant's mouth and nose. They were
then put into the police car and driven to the village of Tarinci,
where the theft had allegedly occurred. One of the police officers
called over the owner of the sheep in order to confront him with the
applicant. The police officer started to swear at him and said: “All
gypsies will remember me forever. I can sacrifice you all.” The
applicant was handcuffed and beaten by police officers with
truncheons and by the owner of the sheep, who was using the branch of
a tree.
-
Around 9 p.m. the applicant and his friend were taken to the police
station, where they were made to lie on the ground in front of the
door and beaten by five police officers. Once inside the police
station, they were tied to a bench in the hall and beaten up again.
As the applicant was terribly thirsty, he asked for some water, but
the reply was “there is no water for gypsies!” They
remained tied to a bench all night; they were released in the
morning.
-
After his release on 14 March 1998, the applicant went the same date
to the Emergency Aid Unit of Štip
Hospital (the “hospital”), where a plaster cast was put
on his broken left arm. As he had no money to pay for the medical
assistance, he used his cousin's medical identity card and therefore
his name, instead of the applicant's name, appeared in the hospital's
register. In the hospital's register, the injuries were described as
“fracturae”.
(b) The Government's version of events
- On
11 March 1998, after 9 p.m., the applicant and his two friends, S. D.
and D. R., hired a taxi in Štip and went to the
village of Tarinci with the intention of stealing sheep from K. P.
They told the taxi driver that they were going to collect two sheep
from a relative and sell them in Vinica.
-
On arrival in the village, the applicant and his
friends broke into the cellar of K. P.'s house, stole two sheep, put
them in the taxi and then headed for Vinica. In Vinica, they went to
the Roma quarter and tried to sell the sheep for 8,000 denars. They
refused an offer of 6,000 denars and headed back towards Štip
with the sheep in the taxi.
-
At about 11 p.m. the police stopped the taxi in the
vicinity of the village of Dolni Balvan in a routine check. Their
suspicions were aroused by contradictory explanations given by the
occupants of the car about the sheep. The police requested
information on the radio as to any reported theft.
-
At about 10.50 p.m. K. P. had reported the theft of his
two sheep. A police van arrived and the taxi driver was
instructed to follow it to Tarinci. At about 11.30 p.m., they arrived
in Tarinci. The applicant and his friends were instructed to unload
the sheep. K. P. arrived at the scene and began to swear; he hit the
applicant with a stick several times on the upper body and claimed
that the applicant had stolen livestock and property from him before.
The police ordered K. P. to stand back and prevented any further
blows to the applicant.
-
At 11.45 p.m. the police took the applicant and his
friends back in the police van to Štip. The applicant, his
friends and the taxi driver were interviewed. The applicant
complained of pain in his arm and stated that K. P. had hit him
with a stick. This was allegedly corroborated by the taxi driver.
-
At 2 a.m. on 12 March 1998 the applicant and the others
were released. The same day, K. P. lodged a criminal complaint with
the police.
2. Documents concerning the incident and the criminal
proceedings against the applicant
(a) Police records of 12 March 1998
concerning the incident
-
The taxi driver confirmed that it had been on 11 March 1998 that
three persons of Roma origin, including the applicant, had loaded the
sheep into his car in the village of Tarinci and taken them to
Vinica. After being stopped by the police, he had been instructed
to follow the police van to the village of Tarinci, where the
sheep had been returned to K. P. No mention was made that K. P had
hit the applicant.
-
The applicant, D. R. and S. D. described the circumstances concerning
the sheep theft which had happened on 11 March 1998. None of them
indicated that the applicant had been hit by K. P.
(b) Criminal proceedings against the
applicant concerning the incident
-
On 8 April 1998 the police lodged criminal charges of
aggravated theft with the public prosecutor against the applicant and
his two friends. It was noted that the incident had occurred on 11
March 1998. No mention was made of any injuries having been sustained
by the applicant.
-
On 20 January 1999 the applicant was
convicted by the Štip Court of First Instance on six counts of
theft (verdict K. No. 237/98) including the one relevant to the
present case. According to the judgment, the offence had been
committed on 11 March 1998. The applicant was sentenced to one year
and one month's imprisonment. On 30 March 1999 the Štip Court
of Appeal upheld the trial court's decision and confirmed the
sentence.
3. The civil proceedings
-
On or about 21 October 1998, Mr Madjunarov, as the applicant's
representative, brought a civil action before the Štip Court
of First Instance (Основен
суд Штип)
against the respondent State and the Ministry of the Interior
for compensation for non-pecuniary damage sustained as a result of
police brutality inflicted on him.
-
On 5 March 2001 the Štip Court of First Instance dismissed the
applicant's claim as ill-founded. It found insufficient evidence to
establish that the applicant had been injured by the police officers
on duty. It accepted the testimony given by the police officers, who
said that the applicant had been hit with a stick by K.
P., the owner of the sheep. It found that the applicant had
not been beaten by the police officers and that no force had been
inflicted on him while he was detained in the police station. The
court established 13 March 1998 as the date of the incident. It
stated, inter alia,
“... when K. P.
[the owner of the sheep] saw the persons who had stolen the
sheep, he started to hit [the applicant] with a stick, as he had
stolen sheep from him before. The officers on duty intervened to
protect the complainant (the applicant) from K. P. without hitting
him ... During the arrest, they (the applicant and his friend) did
not resist and the police officers did not use any force ... the
court established that the complainant had been beaten by K.
P. when the sheep were returned to
him ... these witnesses (the police officers who were on duty on 13
March 1998 in the police station when the applicant was taken into
police custody) stated that they had questioned him and had not used
force against him, as he had not resisted ... during the questioning,
he had not complained that he was injured or felt any pain. He only
complained that he had been taken to K. P., who had hit him. They
(the police officers on duty on the decisive date) stated that they
had not noticed any injuries on [the applicant's] body.”
-
The applicant asked the court to hear S. D., as an eyewitness to the
incident, the cousin who had lent him his medical card and the doctor
who had examined him. The court did not hear S. D. or the applicant's
cousin, as they had been imprisoned in Idrizovo and were therefore
considered “unreachable” by the court. It ruled that
their examination would be irrelevant, as other evidence did not show
that he had had any injuries during the police investigation. It
accepted as possible that the applicant had visited a doctor with
another person's medical identity card, but that it had not been in
relation to injuries inflicted by police officers.
-
On 17 September 2001 the Štip Court of Appeal dismissed an
appeal by the applicant and upheld the lower court's decision. The
court found that the lower court had reasonably established that K.
P., the owner of the sheep, had inflicted the injuries on the
applicant by hitting him with a stick. The police officers had
intervened to protect the applicant from further attacks. It endorsed
the lower court's reasoning that the applicant had not been beaten in
the police station while in custody. It established that even if the
lower court had heard the witnesses proposed by the applicant, they
would not have altered its findings, as it had found that the police
officers who had arrested him had not used any force and had not
inflicted any injuries on him.
-
On or about 29 October 2001 the applicant requested the public
prosecutor to lodge with the Supreme Court an application for
protection of legality (барање
за заштита на
законитоста).
Referring to the outcome of the civil proceedings, he did not
provide the public prosecutor with the identity of the police
officers concerned.
-
On 13 December 2001, the public prosecutor notified the applicant
that there were no grounds for lodging that remedy with the Supreme
Court.
4. The criminal investigation
-
On 3 November 1998, Mr Madjunarov, as the applicant's representative,
lodged a criminal complaint (кривична
пријава)
with the Štip Public Prosecutor's
Office (Основно
Јавно Обвинителство
Штип) against an unidentified
police officer. In the complaint, the applicant set out an account of
the incident which had allegedly occurred on 13 March 1998. As
evidence, the applicant offered his own testimony, that of his friend
S. D. and that of the doctor who had examined him and put a
plaster cast on his hand, and proposed consulting the hospital's
register. He stated, inter alia,
“... around 8 a.m. a
police officer, who I don't know, hit me with a truncheon, breaking
my left arm. The police took me to the Štip
Medical Centre where a plaster cast was put on, which I kept on for
two months ... “
-
On 28 May 1999, the applicant's legal representative wrote a letter
to the public prosecutor, stating that a criminal complaint had been
lodged about seven months before and that since then he had received
no information as to whether any steps had been taken to identify the
offenders and initiate a formal investigation.
-
As there was again no reply, on 25 October 1999 the applicant's
lawyer sent another letter to the public prosecutor, requesting to be
provided with information about any action taken concerning the
applicant's complaint and about the identity of the offender(s).
-
In a letter addressed to the applicant on 11 November 1999, the
public prosecutor responded that his office had acted with regard to
the criminal complaint at issue by officially requesting additional
inquiries from the Ministry of the Interior (“the Ministry”).
However, as of that date his office had received no information from
the said ministry.
-
On 13 February 2006 the public prosecutor issued a “written
conclusion” (писмена
констатација)
concerning the applicant's criminal complaint. It was
based on a statement by the taxi driver given on 10 February
2006 and on the criminal case file against the applicant. As stated
therein, the taxi driver attested that K. P. had hit the applicant
and S. D. with a stick and that the police officers involved had
not had recourse to any physical force when arresting them. There
were, accordingly, no grounds for the public prosecutor's
intervention. That decision was served on the applicant's
representative on 10 October 2006, after the Court's admissibility
decision given in the present case.
II. RELEVANT DOMESTIC LAW
- The
statutory provisions relevant for the present case were 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 inflicting on him
great physical and mental suffering which amounted to torture or
inhuman and/or degrading treatment. Furthermore, he alleged that he
was a victim of a procedural violation of the above Article since the
prosecuting authorities had failed to proceed with an effective
official investigation capable of leading to the identification and
punishment of the police officers responsible. Article 3 reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The parties' submissions
1. The Government
-
The Government submitted that the applicant's allegations were not
credible or substantiated. The statements taken by the police and the
official records contradicted the applicant's version of events,
including the date of the incident. Nor were his claims found to be
substantiated by the courts. They argued that he had not had a proper
medical certificate indicating the alleged injuries, but just an
excerpt from the hospital's register, which had been made three days
after the event complained of. Moreover, that entry had been made in
the name of another person. His allegations of an all-night beating
would in any event have left more extensive injuries than the
allegedly broken arm, which could not be considered a severe injury.
They also pointed out that he had not been a decent citizen
persecuted by the police, as alleged, but in fact an offender with an
extensive criminal record. As regards the investigation into his
allegations, they submitted that he himself had rendered it
ineffective by lodging his criminal complaint some eight months after
the events. If he had used the opportunities available to him in a
timely fashion, there would have been some possibility of a
productive investigation. The investigation was still pending, as the
public prosecutor had not taken a decision to dismiss the criminal
charges brought by the applicant.
-
In their additional observations, the Government stated that besides
the excerpt from the hospital's register, there had been no other
documentation about the applicant's alleged injury. They further
submitted that their efforts to hear a statement from the doctor who
had examined the applicant had been unsuccessful because he had left
the hospital in 2002. Referring to the public prosecutor's “written
conclusion” of February 2006, they concluded that no charges
for the injuries inflicted on the applicant could be brought against
K. P., who had died in June 2000.
2. The applicant
-
The applicant submitted that he had been a victim of police brutality
inflicting on him severe physical and mental suffering amounting to
torture or to inhuman and degrading treatment or punishment. As he
had suffered physical abuse while in police custody, it was for the
Government to show that their officials were not responsible for his
injuries. They had not done so and had failed to do anything to
provide the applicant with redress. They had not interviewed S. D.,
who was the only independent eyewitness to the incident, the cousin
who had lent the applicant his medical card or the doctor who had
examined him. His accounts of ill-treatment had been consistent
throughout and the police assertion that any injury had been caused
by the owner of the sheep was implausible. The applicant always
asserted that he had suffered extensive injuries, his broken arm only
being the most severe. The courts, when considering the applicant's
claims simply ignored the evidence proposed by him and relied solely
on police evidence and reports, which were clearly cursory,
inconsistent and in contradiction with one another.
-
The applicant also referred to the report of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment of
Punishment (CPT/Inf (2003)3), which indicated that physical
ill-treatment of persons in police custody was a serious problem and
expressed doubt that judges or prosecutors conducted effective
investigations where such ill treatment came to their attention.
This indicated a deep-rooted and widespread practice of abuse in
police custody and impunity with regard to officers who perpetrated
such acts. It was for the Government to show what they had done in
response to the scale and seriousness of the problem at issue. In the
present case, they had clearly done nothing.
-
In his additional observations, he also referred to the reports of
the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment of Punishment (CPT/Inf (2004)29) and (CPT/Ing
(2006)36), which indicated similar problems related to allegations of
police brutality. He further relied on reports of other international
organisations and bodies concerning the treatment of Roma in the
former Yugoslav Republic of Macedonia and the lack of an effective
investigation into allegations of ill-treatment.
-
He maintained that the exact date of the incident was irrelevant to
the case, since the Government did not dispute the fact that he had
been detained by the police nor they had contested the civil courts'
findings about the date of the incident. He further expressed doubts
about the credibility of the taxi driver's testimony of 10 February
2006, that he had been hit by K. P., as it contradicted the
latter's prior statement, as noted in the official police records
made after the incident. He contested the Government's assertion that
he had been injured by K. P., arguing that the burden of proof had
shifted to them, since the police had failed to arrange for a medical
examination before taking him into custody. In that respect, he
referred to the Court's jurisprudence under which “where an
individual is taken into custody in good health but is found to be
injured at the time of release, the Government must provide a
plausible explanation of how those injuries were caused”.
-
He also stated that his allegations of ill-treatment by the police
had been arguable and that as a result, the prosecuting authorities
should have carried out a timely, independent, comprehensive and
effective criminal investigation into the facts of his case. Instead,
they had done virtually nothing, and the public prosecutor's “written
conclusion” of 13 February 2006 had been issued some
eight years after he had brought the criminal action. It was not
evident what investigative measures had preceded that “decision”
apart from the testimony of the taxi driver and the police records,
evidence which should have been made available immediately after the
incident. No attempt had been made, either, to hear evidence from S.
D., the cousin who had had lent the applicant his medical card or the
doctor who had examined him.
2. The Court's assessment
1. Concerning the alleged ill-treatment
(i) General principles
- The
general principles emerging from the Court's jurisprudence, relevant
for the present case, were set out in the Jasar judgment (see Jasar
judgment, cited above, §§ 46-49). In addition, although
the Court is not bound by the findings of domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts (see Matko v.
Slovenia, no. 43393/98, § 100, 2 November 2006).
(ii) Application of these principles in
the present case
- Turning
to the present case, the Court at the outset notes that the applicant
and the Government provided conflicting accounts of the events.
- First,
the parties disagreed as to the date of the incident. The Government
maintained that the decisive events complained of had occurred on 11
March 1998. That version coincided with the official police records
of the event and the final judgment in the criminal proceedings in
which the applicant had been found guilty (see paragraphs 15-17
above). On the other hand, the applicant's version, that the incident
had occurred on 13 March 1998, was corroborated by the civil
courts' decisions rejecting his compensation claim related to it (see
paragraph 20 above). The Court observes that the date set out in the
hospital's register (14 March 1998) is not of assistance as there is
no certainty as to the time which elapsed between the incident and
the entry.
-
Secondly, the parties provided two divergent accounts of how the
alleged injuries had been caused. The Government maintained that the
police officers on duty and those who had questioned the applicant
while he was in police custody had not had recourse to any physical
force and that therefore no injury had been inflicted on him. They
further submitted that the injury, if any, was caused by K. P., who
had hit the applicant with a stick. This version was confirmed by the
civil courts' findings, and partly by the applicant's statement (see
paragraph 6 above) that he had received blows from K. P. when he had
returned the sheep. The applicant for his part argued that the
injuries had been caused by the police at the scene and while in
police custody. He so contended in the criminal complaint before the
public prosecutor and also in his application before the Court. A
further inconsistency lies in the parties' accounts of those present
at the incidents, with the applicant claiming that he was accompanied
by one friend when stopped by police officers, and the Government
referring to two friends of the applicant's (paragraphs 6 and 9
above).
-
The Court further observes that the applicant himself provided
contradictory statements concerning the way he had reached the
hospital. Thus in the criminal complaint lodged with the public
prosecutor, he stated that the police had taken him to the hospital.
In his application to the Court, the applicant stated that he had
gone to the hospital, apparently by himself, as his arm had been
intensely painful (see paragraphs 8 and 25 above).
-
Finally, there is uncertainty as to the medical evidence. The
Government denied that the excerpt from the hospital's register
constituted evidence attesting the applicant's alleged injury, whilst
the applicant pleaded it in support, claiming that the discrepancy in
the names had arised because he had not had money to pay for medical
assistance, and had borrowed his cousin's medical identity card. The
Court notes that no medical certificate was issued, and that the only
document submitted – the copy of the medical register dated 14
March 1998 – is not in the applicant's name, and gives very
little detail.
-
Due to the inconsistencies noted above, the Court considers that no
cogent elements have been adduced in the course of the proceedings
before it which could call into question the findings of the national
authorities and support the applicant's allegations. It is therefore
not able to establish which version of events is the more credible.
- In
conclusion, since the evidence before it does not enable the Court to
find beyond all reasonable doubt that the applicant was subjected to
physical ill-treatment whilst being arrested or while in police
custody, the Court considers that there is insufficient evidence for
it to conclude that there has been a violation of Article 3 of the
Convention on account of the alleged ill-treatment.
2. Concerning the alleged lack of an effective
investigation
(i) General principles
- The
Court points out that where an individual makes a credible 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.
- 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
(see Jasar, cited above, §§ 55-57, and the
references cited therein).
(ii) Application of these principles in
the present case
- The
Court notes that the applicant lodged a criminal complaint with the
public prosecutor and lodged a compensation claim more than seven
months after the decisive event (see paragraphs 19 and 25 above). The
applicant gave no explanation for that delay. The Court further
accepts that at that time of the incident, in March 1998, the
applicant did not know the identity of the police officers involved.
It cannot however find a convincing explanation for the applicant's
failure to inform the public prosecutor of the identity of the police
officers concerned, after it had been determined in the course of the
civil proceedings.
-
However, notwithstanding this failure, the Court considers that,
taken together, the applicant's criminal complaint to the public
prosecutor and the civil claim for compensation, that he had
sustained injuries at the hands of the police, amounted to a credible
assertion that the alleged 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. In support of his assertion of having
been ill-treated by the police, the applicant offered his own
testimony, that of his friend S. D. and that of the doctor who had
examined him and put a plaster cast on his hand, and proposed
consulting the hospital's register (see paragraph 25 above). That
evidence, as proposed, entailed his assertion of police brutality to
be regarded, at that time, as having been credible.
-
The public prosecutor was under the 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 additional inquiries from the Ministry (see paragraph
28 above). The public prosecutor's “written conclusion”
about the incident cannot alter the Court's conclusion that the
investigation did not satisfy the requirements of Article 3 of the
Convention for the following reasons. First, it was given nearly
eight years after the criminal complaint had been lodged and after
the case was communicated to the respondent Government. Secondly, it
was given on the basis of the criminal case file against the
applicant and the taxi driver's statement given in February 2006. The
Court considers that that evidence was available after the incident
and the Government did not present any convincing explanation as to
why it had not been adduced at an earlier stage. Thirdly, that
“decision”, as was the case with the findings of the
civil courts, was given mainly on the basis of evidence provided by
the police – no serious attempt was made to secure the evidence
proposed by the applicant: to hear S. D., as an eyewitness to
the incident, the cousin who had lent him his medical card or the
doctor who had examined him. Finally, it took eight months for the
public prosecutor to communicate it to the applicant.
-
Against this background, the Court concludes that there was no
thorough or effective investigation of the applicant's claim that he
had sustained the alleged injuries at the hands of the police. Thus,
the Court finds that there has been a violation of Article 3 of the
Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
-
The applicant complained that he had no effective remedy against the
failure of the national authorities to investigate effectively his
allegations of ill-treatment in contravention of Article 13 of the
Convention. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
-
The applicant submitted that the respondent State had not provided an
effective remedy in relation to his arguable claim of having been
subjected to acts of police brutality. He further argued that
Macedonian legislation did not provide a time-limit within which the
public prosecutor should consider a criminal complaint. He stated
that the public prosecutor's “letter” of 10 October 2006
did not constitute a formal decision which would enable him to take
over the prosecution as a subsidiary complainant. He was therefore
prevented from having access to court proceedings in order to obtain
redress for the violation of his rights under Article 3 of the
Convention.
- Having
regard to the grounds on which it has found a violation of the
procedural aspect of Article 3, the Court considers that no separate
issue arises under Article 13 of the Convention (see Jasar v. the
former Yugoslav Republic of Macedonia, no. 69908/01, § 62,
15 February 2007).
III. 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 20,000 euros (EUR) in respect of non-pecuniary
damage for the pain, physical injuries, frustration, anguish and
helplessness which he had suffered as a result of the ill-treatment
inflicted by the police officers while being in a very vulnerable
position, in fact at their mercy. He also referred to the flaws in
the ensuing investigation by the national authorities. The applicant
further referred to his Roma origin, maintaining that his case was
not unique in the former Yugoslav Republic of Macedonia. Finally,
they asked the Court to take the alleged systemic nature of the harm
into account when making its assessment of the non-pecuniary damage
and stated that awarding a higher sum would influence the respondent
Government to take a stronger stand against police ill-treatment
targeting Roma in future.
-
The Government contested the applicant's claims as unsubstantiated.
They referred to the findings of the prosecuting authorities that the
applicant had not been subjected to ill-treatment by the police and
stated that no award should be made in the absence of firm evidence
of any ill-treatment. Although the subsequent investigation had been
stayed for a long time, the public prosecutor's decision of 13
February 2006 had ended the criminal proceedings before the domestic
authorities. In that later context, the Government invited the Court
to consider that the eventual finding of a violation constituted in
itself sufficient compensation for any damage in the present case.
They also stated that no award should be given to the deceased
applicant's sisters since the alleged injury and any suffering
related to it had been of a purely personal nature. The cause of
justice would not be advanced by awarding a sum of money to them in
compensation for any pain that the applicant himself might have
suffered as a result of violation of his rights under the Convention.
-
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 has reached no conclusion on the substance of that
complaint. Making an assessment on an equitable basis, it awards the
applicant the sum of EUR 3,000, plus any tax that may be chargeable.
In this later respect, it is to be noted that the award is made for
the applicant, while it is payable to his sisters who were allowed,
by the Court's admissibility decision of 18 September 2006 given in
this case, to pursue the application which the applicant had brought
himself.
B. Costs and expenses
- The
applicant claimed EUR 3,145 for the costs and expenses incurred by
the ERRC in the proceedings before the Court. These included the fees
for a lawyer engaged on the case for 38.5 hours of legal work and
administration. A schedule of fees was produced for the activities of
the ERRC between 2 November 2006 and 20 November 2006. Invoices were
provided for the travel arrangements of one person to Štip
and her accommodation between 3 and 6 November 2006; and for the
mailing and translating of the public prosecutor's “decision”
of 13 February 2006. No claim was made and no documents were provided
concerning any costs and expenses that Mr Madjunarov might have
incurred in the domestic proceedings.
-
The ERRC has requested that the fees be paid directly to them, as the
applicant did not incur any financial costs during the proceedings.
They did not provide their bank account details.
-
The Government stated that the amounts claimed by the ERRC had been
excessive and not properly substantiated by any details or supporting
documents.
- 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, and noting that the
applicants have been successful in only part of their application the
Court awards the sum of EUR 1,000 to cover its costs and expenses.
These amounts are to be paid into the bank account of the ERRC,
exclusive of any tax that may be chargeable. Since
no claim has been made in respect of any costs and expenses incurred
in the domestic proceedings, the Court does not make any award under
that head.
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
- Holds that there has been no violation of
Article 3 of the Convention on account of the alleged
ill-treatment;
- Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the
authorities to conduct an effective investigation into the
applicant's allegations that he was ill-treated at the hands of the
police;
- Holds that it is not necessary to consider the
applicant's complaint about the lack of an effective remedy under
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay to Ms Demiran Sulimanova and
Ms Remzie Durmiseva, on behalf of 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
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of cost and expenses, payable
into a bank account of the ERRC, the applicant's representative;
(iii) any
tax that may be chargeable to the applicant 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 amounts 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 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
