Police brutality and the lack of effective investigation: the case of Asllani v. the former Yugoslav Republic of Macedonia
16.09.2022
Introduction
The number of cases wherein the Macedonian police did not conduct an efficient and effective investigation for the cases and complaints of citizens who had been exposed to police brutality.
After the verdict had been pronounced for the case of El-Masri v. the Republic of Macedonia in 2012[1], where the court assessed that there had been a violation of Article 3 of the ECHR on all grounds and unanimously decided that the state was responsible not only for violating Article 3 of the ECHR but also Articles 5, 8 and 13 of the ECHR[2], the state was expected to act more carefully in cases of reported torture, inhumane and degrading treatment or punishment. As a response to the request to reinforce the legislative framework, the amendments to the Law on the Ombudsman which came into force in 2018[3] provide for the establishment of a mechanism for civil control[4] which is obliged to pen proceedings[5], and the Basic public prosecutor’s office for the prosecution of organized crime and corruption (BPPO POCC) takes on, via a specialized department, the role of body competent for the investigation and criminal prosecution for crimes committed by persons with police authorization and members of the prison police.
Despite this legal provision, in their last report for the year 2021 the Ombudsman noted 11 (eleven) requests to open proceedings due to having determined criminal liability.[6]Only two cases for which the appropriate request for determining criminal liability was submitted to the specialized department in the BPPO POCC, regarding police brutality and harassment, had their respective criminal proceedings opened, and final convicting judgments were pronounced by the Skopje Basic Criminal Court.
The failures of the bodies competent for conducting an effective investigation and the seriousness of the applications submitted regarding suffered police brutality are also evidenced by the judgments pronounced by the ECHR against the state, in the cases of: Jashar v. the RM, 2007[7] due to the failure of competent organs to provide an efficient investigation regarding the applicant’s claims that he had been subjected to inhumane and degrading treatment by the police; Gjorgiev v. the RM, 2012[8] due to the failure of competent bodies to conduct an effective investigation regarding the applicant’s allegations; Kitanovski v. the RM, 2015[9] for a violation of Article 3 of the ECHR due to the degrading treatment in the arrest process; Andonovski v. the RM, 2015[10] due to the failure of competent bodies to conduct an efficient investigation regarding the applicant’s allegations of police brutality and inhumane and degrading treatment from the police; then, the case of Trendafilovski v. RNM, 2020[11] on a violation of the procedural aspect of Article 3 of the Convention and the known case of X and Y v. RNM, 2020[12] which attracted the attention of the public due to the failure to investigate an incident of police brutality which occurred in 2014, when the Roma applicants were aged sixteen and thirteen[13].
The subject of this analysis is the reported harassment by the police, the ineffective investigation on police brutality, which followed and the endless prolonging and tying up of the proceedings through the labyrinthine Macedonian courts, in the case of Aslani v. The Republic of Macedonia, December 10 2015[14].
Facts of the case
The applicant, a native of Ohrid, was employed in a local enterprise owned by Z.Ch., within which a bakery was operating in Resen.
On March 20, 2008, several police officers entered the bakery with the intent to determine whether all of the employees[15] had work and residence permits. The applicant was asked by the owner Z.Ch. to come to the bakery at 1:30 AM. Then the applicant, Z.Ch., and six other persons were taken to a police station and interrogated in the office of M.G., who was the head police commander in Resen. While there, the applicant was physically and verbally assaulted by Gj.S., a police officer at the time who would go on to be a mayor of Resen. The applicant left the police station around 4:15 AM on March 21 2008. After leaving the premises of the police station, around 5:30 AM[16], he went to see a doctor in the Ohrid hospital, where he received a certified medical statement (no.30) which diagnosed a post-traumatic fracture of the nasal bone.[17]
The owner Z.Ch. also claimed to have been physically and verbally assaulted by the police officer Gj.S. when he arrived at the bakery. According to his statements, Gj.S. slapped him in the face several times in front of the workers. He also insulted him and threatened to send him “back to Kosovo in a black body bag” unless he admitted to paying a Resen police officer as guarantee for receiving protection. During the entire incident, Gj.S. used inappropriate language and ethnic slurs.
In the period of March 21-27, 2008, the applicant submitted a criminal report of police brutality to the competent public prosecutor and then, along with the owner of the bakery Z.Ch., submitted a complaint to the Sector for internal control and professional standards of the Ministry of Interior (SICPS) for being harassed by police officers during the incident between March 20 and 21 of 2008.
On June 17, 2008, the SICPS delivered a “special report” on the case to the public prosecutor which contained official notes. These stated that “during the hearing Gj.S. insulted and physically assaulted the applicant. He pulled a newspaper out of the applicant’s bag and attempted to put it inside his mouth. Then he hit him three times, causing visible injury, namely, a broken nose and bruises on the face. The police officers D.L. and M.G., head commander of the Resen police, were also present at the time“.
The police officers had no plan or search warrant for the control (inspection) performed in the Resen bakery. Besides this, there was no report of the event nor recorded information in the daily agenda regarding the arrest and detainment of the applicant, the owner Z.Ch. and 6 other persons in the Resen police station, nor the use of force on anyone.
Criminal proceedings against Gj.S.
Upon the June 12 2008 request by the Public Prosecutor, on October 30 2008 an investigative judge of the Resen Basic Court opened an investigation regarding the allegations that Gj.S. harassed, insulted and threatened the applicant and Z.Ch.
The Resen Basic Court heard witnesses, bakery employees and police officers who were present in the bakery, then upon request from the court a forensic medical opinion was provided, where the injuries of the applicant were determined, but due to a lack of evidence that Gj.S. committed the alleged crime, on February 24 2009 the public prosecutor informed the investigative judge that he was dropping the prosecution.
On April 13 the applicant, determined to continue the prosecution of Gj.S., submitted a subsidiary prosecution act under charges of harassment and inflicted bodily injury. An interesting fact is that the public prosecutor remained passive and undertook no actions in the following proceedings.
After the applicant took over the criminal prosecution, the case was subject to much prolonging:
−In 2009 the proceedings were stopped by the Resen Basic Court following an objection by Gj.S.;
−The Bitola Court of Appeal revoked the decision to stop the proceedings and ordered the Resen Basic Court to face off the applicant and the other police officers, but then every judge in the Resen Basic Court requested to be exempted from the case as they were already involved in the proceedings in another capacity;
−On June 1, 2010, the Bitola Court of Appeal assigned the case to the Bitola Basic Court, as a new municipally competent court. Then in three instances the Bitola Basic Court released Gj.S. of all charges due to lack of evidence, but the Bitola Court of Appeal upheld the applicant’s appeals and returned the case for retrial due to a conviction that the Bitola Basic Court was incorrectly and incompletely determining the factual situation regarding the applicant’s injuries;
−On March 18 2015 the Bitola Basic Court released Gj.S. of harassment charges and rejected the charge of bodily injuries, and regarding the second grounds,the court determined the case had become time-barred;
−The Bitola Court of Appeal upheld the applicant’s appeal and returned the case to the Bitola Basic Court for retrial since it had not taken into consideration the directions from the Court of Appeal
The Supreme Court (SCRM) judgment dated November 12 2013[18] upheld the applicant’s request for protection of the right to a trial within a reasonable time and admitted that the criminal proceedings against Gj.S. had taken too long. The Government of the RM also admits this in the proceedings before the ECHR. Because of this, the SCRM awarded the applicant compensation in the amount equivalent to 500 EUR and determined that the Bitola Basic Court shall finish the criminal proceedings as quickly as possible, but no later than six months after receiving the judgment.
Judgment and justification of the ECHR
According to the ECHR, when a healthy individual is deprived of freedom by the police and injuries are discovered after his release, the state is obligated to explain how these injuries occurred, and in the absence of such explanation it is clear that a violation of Article 3 of the Convention has occurred. Thus, the Court was convinced that there was evidence to support the applicant’s claims. The Court determined that the applicant suffered a nasal fracture and bruises to the face due to the use of “rough force” on his face. These injuries were described in the medical records, which were presented as evidence during the trial and represented a physical injury followed by physical pain, fear, huge disturbance and emotional suffering.
Due to the aforestated reasons, the European Court of Human Rights found that there had been a violation of Article 3 of the Convention due to the failure of the authorities to conduct an effective investigation following the applicant’s claims of police brutality. At the same time, the Court found that there had been a violation of Article 3 of the Convention due to inhumane and humiliating treatment from the police during the applicant’s hearing in the Resen police station on March 21 2008. Thus, the Court decided that the State shall pay the applicant 11.700 EUR as compensation for non-pecuniary damages[19] within three months after the judgment becomes final.
Conclusion
When interpreting Article 3 of the ECHR via the court practice of the ECHR, we can see that the use of force by the police when depriving of freedom is not, in fact, prohibited. However, this practice does not mean enabling the opportunity for its abuse. On the contrary, no physical force which isn’t absolutely necessary may be used, as this undermines human dignity, which is in turn a direct violation of the right determined by Article 3 of the Convention.
From the analysis of the specific case, we can see that the state did not conduct an effective investigation of the allegations of harassment and police brutality, which undermines trust and reduces (the already low) expectations for public authorities’ performance of their basic functions.
Also relating to this is the constant delaying of the court proceedings, which happens after the public prosecutor renounces criminal prosecution. His passivity cannot (and must not!) be justified with the fact that the criminal proceedings were opened based on a subsidiary prosecution act (as in the case of Butolen v. Slovenia, no. 41356/08, § 77, April 26 2012). [20] The question, which remains open, is whether anyone is surveilling the work of the public prosecutor in cases of crimes committed by persons with police authority and members of prison police.[21]
What is concerning is the fact that in our region, the issue is not simply the excessive use of force by police officers, but most often racially motivated police brutality and the inability (or lack of will) from the state to conduct an effective investigation of the possible racist motivations of such treatment. We can only continue to hope that the judgment in the case of X and Y v. North Macedonia, will encourage authorities to consistently perform their obligation for conducting a thorough and efficient investigation into reported cases of police brutality.
Sources:
Annual report on the degree of provision, respect, promotion and protection of human freedoms and rights for 2021, Skopje March 2022. Link:
https://ombudsman.mk/CMS/Upload/NarodenPravobranitel/upload/Godisni%20izvestai/GI-2021/GI%20-2021.pdf
Law on the Ombudsman, Official Gazette of RM, no. 60/2003; 143/2008; 114/2009; 181/2016; 189/2016 and 35/2018.
Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § ..., 10 December 2015.
Butolen v. Slovenia, no. 41356/08, § ..., 26 April 2012.
El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.
Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § ..., 19 April 2012.
Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § ..., 15 February 2007.
Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015.
Trendafilovski v. North Macedonia, no.59119/15, § ..., 17 December 2020.
X and Y v. North Macedonia, no. 173/17, § ..., 5 November 2020.
Links:
http://www.errc.org/uploads/upload_en/file/5274_file1_pr-european-court-macedonian-9-november-2020.pdf
https://akademik.mk/presuda-na-strazbur-vo-korist-na-dvajtsa-romi-koi-pred-sudot-se-zhalea-na-politsiska-brutalnost/
https://hudoc.echr.coe.int/
https://justiceobservers.org/article/74067/63647/187
https://justiceobservers.org/category/home/64665/187
https://mhc.org.mk/eschp/
https://mhc.org.mk/news/mvr-da-go-istrazhi-posledniot-sluchaj-na-policiska-brutalnost-so-elementi-na-revanshizam/
https://www.echr.coe.int/documents/case_law_references_eng.pdf
https://www.radiomof.mk/romi-maltretirani-od-policijata-ja-dobija-s-makedonija-vo-strazburg-drzhavata-kje-treba-da-im-plati-po-7-500-evra/
[1] El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.
[2] See more in the analysis of dr. Ljupcho Stojkovski of the verdict on El Masri v. the Republic of Macedonia before the ECHR, available at: https://justiceobservers.org/article/74067/63647/187.
[3] Law on the Ombudsman, Official Gazette of the R. of Macedonia nos.60/2003; 143/2008; 114/2009; 181/2016; 189/2016 and 35/2018.
[4] The mechanism for civil control represents a special external body as an additional corrector of the system for investigation of criminal acts committed by authorized officials of the Ministry of Interior and members of prison police.
[5] Article 11-f, LCA of the Law on the Ombudsman (Official Gazette no.35/2018): The Ombudsman - a mechanism for civil control opens proceedings upon the request of the victim party or a member of their family, upon the initiative of representatives of the nongovernmental sector, as well as upon its own initiative after receiving knowledge (word-of-mouth) of possible violations on the right of life and prohibition of torture as per the European Convention on Human Rights, ratified in accordance with the Constitution of the Republic of Macedonia.
[6] Four cases were issued a decision to reject the report due to lack of sufficient evidence to continue the proceedings; 1 (one) case received a decision to be submitted for due processing in the Basic Public Prosecutor’s Office - Ohrid; the Ombudsman was notified that four of these cases are still undergoing preliminary procedure and the necessary measures and action are being taken, so the proceedings on these cases continue into 2022, source: Yearly report on the level of security, respect, promotion and protection of human rights and liberties for 2021, Skopje March 2022, p.131-132.
[7] Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § ..., 15 February 2007.
[8] Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § ..., 19 April 2012.
[9] Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015.
[10] Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
[11] Trendafilovski v. North Macedonia, no.59119/15, § ..., 17 December 2020.
[12] X and Y v. North Macedonia, no. 173/17, § ..., 5 November 2020.
[13] The European Roma Rights Centre, which represented the two applicants before the Court, underlines that the judgment was of great significance and that justice had finally been won before the Court in Strasbourg. For more on the case see: http://www.errc.org/uploads/upload_en/file/5274_file1_pr-european-court-macedonian-9-november-2020.pdf, and https://akademik.mk/presuda-na-strazbur-vo-korist-na-dvajtsa-romi-koi-pred-sudot-se-zhalea-na-politsiska-brutalnost/.
[14] Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § ..., 10 December 2015.
[15] Some of the employees in the bakery had been citizens of Kosovo.
[16] The Government, as a party in the proceedings before the ECHR, submitted a claim that the applicant left the police station at/around 3 AM after which he participated in a fight with unknown individuals in an unknown location and then sought medical attention in the Ohrid hospital at/around 5:30 AM.
[17] The doctor wrote the following in the statement: „At 5:30 AM, fight, X-ray was done of the nasal pyramid … repositioning and immobilization performed … Nasal pyramid and … upper right nostril visibly swollen.“.
[18] Which became effective on December 4, 2013.
[19] With the added amounts of fees/taxes if such charges must be paid.
[20] See also Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015, Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
[21] See https://mhc.org.mk/eschp/ and https://www.radiomof.mk/romi-maltretirani-od-policijata-ja-dobija-s-makedonija-vo-strazburg-drzhavata-kje-treba-da-im-plati-po-7-500-evra/
The number of cases wherein the Macedonian police did not conduct an efficient and effective investigation for the cases and complaints of citizens who had been exposed to police brutality.
After the verdict had been pronounced for the case of El-Masri v. the Republic of Macedonia in 2012[1], where the court assessed that there had been a violation of Article 3 of the ECHR on all grounds and unanimously decided that the state was responsible not only for violating Article 3 of the ECHR but also Articles 5, 8 and 13 of the ECHR[2], the state was expected to act more carefully in cases of reported torture, inhumane and degrading treatment or punishment. As a response to the request to reinforce the legislative framework, the amendments to the Law on the Ombudsman which came into force in 2018[3] provide for the establishment of a mechanism for civil control[4] which is obliged to pen proceedings[5], and the Basic public prosecutor’s office for the prosecution of organized crime and corruption (BPPO POCC) takes on, via a specialized department, the role of body competent for the investigation and criminal prosecution for crimes committed by persons with police authorization and members of the prison police.
Despite this legal provision, in their last report for the year 2021 the Ombudsman noted 11 (eleven) requests to open proceedings due to having determined criminal liability.[6]Only two cases for which the appropriate request for determining criminal liability was submitted to the specialized department in the BPPO POCC, regarding police brutality and harassment, had their respective criminal proceedings opened, and final convicting judgments were pronounced by the Skopje Basic Criminal Court.
The failures of the bodies competent for conducting an effective investigation and the seriousness of the applications submitted regarding suffered police brutality are also evidenced by the judgments pronounced by the ECHR against the state, in the cases of: Jashar v. the RM, 2007[7] due to the failure of competent organs to provide an efficient investigation regarding the applicant’s claims that he had been subjected to inhumane and degrading treatment by the police; Gjorgiev v. the RM, 2012[8] due to the failure of competent bodies to conduct an effective investigation regarding the applicant’s allegations; Kitanovski v. the RM, 2015[9] for a violation of Article 3 of the ECHR due to the degrading treatment in the arrest process; Andonovski v. the RM, 2015[10] due to the failure of competent bodies to conduct an efficient investigation regarding the applicant’s allegations of police brutality and inhumane and degrading treatment from the police; then, the case of Trendafilovski v. RNM, 2020[11] on a violation of the procedural aspect of Article 3 of the Convention and the known case of X and Y v. RNM, 2020[12] which attracted the attention of the public due to the failure to investigate an incident of police brutality which occurred in 2014, when the Roma applicants were aged sixteen and thirteen[13].
The subject of this analysis is the reported harassment by the police, the ineffective investigation on police brutality, which followed and the endless prolonging and tying up of the proceedings through the labyrinthine Macedonian courts, in the case of Aslani v. The Republic of Macedonia, December 10 2015[14].
Facts of the case
The applicant, a native of Ohrid, was employed in a local enterprise owned by Z.Ch., within which a bakery was operating in Resen.
On March 20, 2008, several police officers entered the bakery with the intent to determine whether all of the employees[15] had work and residence permits. The applicant was asked by the owner Z.Ch. to come to the bakery at 1:30 AM. Then the applicant, Z.Ch., and six other persons were taken to a police station and interrogated in the office of M.G., who was the head police commander in Resen. While there, the applicant was physically and verbally assaulted by Gj.S., a police officer at the time who would go on to be a mayor of Resen. The applicant left the police station around 4:15 AM on March 21 2008. After leaving the premises of the police station, around 5:30 AM[16], he went to see a doctor in the Ohrid hospital, where he received a certified medical statement (no.30) which diagnosed a post-traumatic fracture of the nasal bone.[17]
The owner Z.Ch. also claimed to have been physically and verbally assaulted by the police officer Gj.S. when he arrived at the bakery. According to his statements, Gj.S. slapped him in the face several times in front of the workers. He also insulted him and threatened to send him “back to Kosovo in a black body bag” unless he admitted to paying a Resen police officer as guarantee for receiving protection. During the entire incident, Gj.S. used inappropriate language and ethnic slurs.
In the period of March 21-27, 2008, the applicant submitted a criminal report of police brutality to the competent public prosecutor and then, along with the owner of the bakery Z.Ch., submitted a complaint to the Sector for internal control and professional standards of the Ministry of Interior (SICPS) for being harassed by police officers during the incident between March 20 and 21 of 2008.
On June 17, 2008, the SICPS delivered a “special report” on the case to the public prosecutor which contained official notes. These stated that “during the hearing Gj.S. insulted and physically assaulted the applicant. He pulled a newspaper out of the applicant’s bag and attempted to put it inside his mouth. Then he hit him three times, causing visible injury, namely, a broken nose and bruises on the face. The police officers D.L. and M.G., head commander of the Resen police, were also present at the time“.
The police officers had no plan or search warrant for the control (inspection) performed in the Resen bakery. Besides this, there was no report of the event nor recorded information in the daily agenda regarding the arrest and detainment of the applicant, the owner Z.Ch. and 6 other persons in the Resen police station, nor the use of force on anyone.
Criminal proceedings against Gj.S.
Upon the June 12 2008 request by the Public Prosecutor, on October 30 2008 an investigative judge of the Resen Basic Court opened an investigation regarding the allegations that Gj.S. harassed, insulted and threatened the applicant and Z.Ch.
The Resen Basic Court heard witnesses, bakery employees and police officers who were present in the bakery, then upon request from the court a forensic medical opinion was provided, where the injuries of the applicant were determined, but due to a lack of evidence that Gj.S. committed the alleged crime, on February 24 2009 the public prosecutor informed the investigative judge that he was dropping the prosecution.
On April 13 the applicant, determined to continue the prosecution of Gj.S., submitted a subsidiary prosecution act under charges of harassment and inflicted bodily injury. An interesting fact is that the public prosecutor remained passive and undertook no actions in the following proceedings.
After the applicant took over the criminal prosecution, the case was subject to much prolonging:
−In 2009 the proceedings were stopped by the Resen Basic Court following an objection by Gj.S.;
−The Bitola Court of Appeal revoked the decision to stop the proceedings and ordered the Resen Basic Court to face off the applicant and the other police officers, but then every judge in the Resen Basic Court requested to be exempted from the case as they were already involved in the proceedings in another capacity;
−On June 1, 2010, the Bitola Court of Appeal assigned the case to the Bitola Basic Court, as a new municipally competent court. Then in three instances the Bitola Basic Court released Gj.S. of all charges due to lack of evidence, but the Bitola Court of Appeal upheld the applicant’s appeals and returned the case for retrial due to a conviction that the Bitola Basic Court was incorrectly and incompletely determining the factual situation regarding the applicant’s injuries;
−On March 18 2015 the Bitola Basic Court released Gj.S. of harassment charges and rejected the charge of bodily injuries, and regarding the second grounds,the court determined the case had become time-barred;
−The Bitola Court of Appeal upheld the applicant’s appeal and returned the case to the Bitola Basic Court for retrial since it had not taken into consideration the directions from the Court of Appeal
The Supreme Court (SCRM) judgment dated November 12 2013[18] upheld the applicant’s request for protection of the right to a trial within a reasonable time and admitted that the criminal proceedings against Gj.S. had taken too long. The Government of the RM also admits this in the proceedings before the ECHR. Because of this, the SCRM awarded the applicant compensation in the amount equivalent to 500 EUR and determined that the Bitola Basic Court shall finish the criminal proceedings as quickly as possible, but no later than six months after receiving the judgment.
Judgment and justification of the ECHR
According to the ECHR, when a healthy individual is deprived of freedom by the police and injuries are discovered after his release, the state is obligated to explain how these injuries occurred, and in the absence of such explanation it is clear that a violation of Article 3 of the Convention has occurred. Thus, the Court was convinced that there was evidence to support the applicant’s claims. The Court determined that the applicant suffered a nasal fracture and bruises to the face due to the use of “rough force” on his face. These injuries were described in the medical records, which were presented as evidence during the trial and represented a physical injury followed by physical pain, fear, huge disturbance and emotional suffering.
Due to the aforestated reasons, the European Court of Human Rights found that there had been a violation of Article 3 of the Convention due to the failure of the authorities to conduct an effective investigation following the applicant’s claims of police brutality. At the same time, the Court found that there had been a violation of Article 3 of the Convention due to inhumane and humiliating treatment from the police during the applicant’s hearing in the Resen police station on March 21 2008. Thus, the Court decided that the State shall pay the applicant 11.700 EUR as compensation for non-pecuniary damages[19] within three months after the judgment becomes final.
Conclusion
When interpreting Article 3 of the ECHR via the court practice of the ECHR, we can see that the use of force by the police when depriving of freedom is not, in fact, prohibited. However, this practice does not mean enabling the opportunity for its abuse. On the contrary, no physical force which isn’t absolutely necessary may be used, as this undermines human dignity, which is in turn a direct violation of the right determined by Article 3 of the Convention.
From the analysis of the specific case, we can see that the state did not conduct an effective investigation of the allegations of harassment and police brutality, which undermines trust and reduces (the already low) expectations for public authorities’ performance of their basic functions.
Also relating to this is the constant delaying of the court proceedings, which happens after the public prosecutor renounces criminal prosecution. His passivity cannot (and must not!) be justified with the fact that the criminal proceedings were opened based on a subsidiary prosecution act (as in the case of Butolen v. Slovenia, no. 41356/08, § 77, April 26 2012). [20] The question, which remains open, is whether anyone is surveilling the work of the public prosecutor in cases of crimes committed by persons with police authority and members of prison police.[21]
What is concerning is the fact that in our region, the issue is not simply the excessive use of force by police officers, but most often racially motivated police brutality and the inability (or lack of will) from the state to conduct an effective investigation of the possible racist motivations of such treatment. We can only continue to hope that the judgment in the case of X and Y v. North Macedonia, will encourage authorities to consistently perform their obligation for conducting a thorough and efficient investigation into reported cases of police brutality.
Sources:
Annual report on the degree of provision, respect, promotion and protection of human freedoms and rights for 2021, Skopje March 2022. Link:
https://ombudsman.mk/CMS/Upload/NarodenPravobranitel/upload/Godisni%20izvestai/GI-2021/GI%20-2021.pdf
Law on the Ombudsman, Official Gazette of RM, no. 60/2003; 143/2008; 114/2009; 181/2016; 189/2016 and 35/2018.
Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § ..., 10 December 2015.
Butolen v. Slovenia, no. 41356/08, § ..., 26 April 2012.
El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.
Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § ..., 19 April 2012.
Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § ..., 15 February 2007.
Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015.
Trendafilovski v. North Macedonia, no.59119/15, § ..., 17 December 2020.
X and Y v. North Macedonia, no. 173/17, § ..., 5 November 2020.
Links:
http://www.errc.org/uploads/upload_en/file/5274_file1_pr-european-court-macedonian-9-november-2020.pdf
https://akademik.mk/presuda-na-strazbur-vo-korist-na-dvajtsa-romi-koi-pred-sudot-se-zhalea-na-politsiska-brutalnost/
https://hudoc.echr.coe.int/
https://justiceobservers.org/article/74067/63647/187
https://justiceobservers.org/category/home/64665/187
https://mhc.org.mk/eschp/
https://mhc.org.mk/news/mvr-da-go-istrazhi-posledniot-sluchaj-na-policiska-brutalnost-so-elementi-na-revanshizam/
https://www.echr.coe.int/documents/case_law_references_eng.pdf
https://www.radiomof.mk/romi-maltretirani-od-policijata-ja-dobija-s-makedonija-vo-strazburg-drzhavata-kje-treba-da-im-plati-po-7-500-evra/
[1] El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012.
[2] See more in the analysis of dr. Ljupcho Stojkovski of the verdict on El Masri v. the Republic of Macedonia before the ECHR, available at: https://justiceobservers.org/article/74067/63647/187.
[3] Law on the Ombudsman, Official Gazette of the R. of Macedonia nos.60/2003; 143/2008; 114/2009; 181/2016; 189/2016 and 35/2018.
[4] The mechanism for civil control represents a special external body as an additional corrector of the system for investigation of criminal acts committed by authorized officials of the Ministry of Interior and members of prison police.
[5] Article 11-f, LCA of the Law on the Ombudsman (Official Gazette no.35/2018): The Ombudsman - a mechanism for civil control opens proceedings upon the request of the victim party or a member of their family, upon the initiative of representatives of the nongovernmental sector, as well as upon its own initiative after receiving knowledge (word-of-mouth) of possible violations on the right of life and prohibition of torture as per the European Convention on Human Rights, ratified in accordance with the Constitution of the Republic of Macedonia.
[6] Four cases were issued a decision to reject the report due to lack of sufficient evidence to continue the proceedings; 1 (one) case received a decision to be submitted for due processing in the Basic Public Prosecutor’s Office - Ohrid; the Ombudsman was notified that four of these cases are still undergoing preliminary procedure and the necessary measures and action are being taken, so the proceedings on these cases continue into 2022, source: Yearly report on the level of security, respect, promotion and protection of human rights and liberties for 2021, Skopje March 2022, p.131-132.
[7] Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § ..., 15 February 2007.
[8] Gorgiev v. the former Yugoslav Republic of Macedonia, no. 26984/05, § ..., 19 April 2012.
[9] Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015.
[10] Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
[11] Trendafilovski v. North Macedonia, no.59119/15, § ..., 17 December 2020.
[12] X and Y v. North Macedonia, no. 173/17, § ..., 5 November 2020.
[13] The European Roma Rights Centre, which represented the two applicants before the Court, underlines that the judgment was of great significance and that justice had finally been won before the Court in Strasbourg. For more on the case see: http://www.errc.org/uploads/upload_en/file/5274_file1_pr-european-court-macedonian-9-november-2020.pdf, and https://akademik.mk/presuda-na-strazbur-vo-korist-na-dvajtsa-romi-koi-pred-sudot-se-zhalea-na-politsiska-brutalnost/.
[14] Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § ..., 10 December 2015.
[15] Some of the employees in the bakery had been citizens of Kosovo.
[16] The Government, as a party in the proceedings before the ECHR, submitted a claim that the applicant left the police station at/around 3 AM after which he participated in a fight with unknown individuals in an unknown location and then sought medical attention in the Ohrid hospital at/around 5:30 AM.
[17] The doctor wrote the following in the statement: „At 5:30 AM, fight, X-ray was done of the nasal pyramid … repositioning and immobilization performed … Nasal pyramid and … upper right nostril visibly swollen.“.
[18] Which became effective on December 4, 2013.
[19] With the added amounts of fees/taxes if such charges must be paid.
[20] See also Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § ..., 22 January 2015, Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § ..., 23 July 2015.
[21] See https://mhc.org.mk/eschp/ and https://www.radiomof.mk/romi-maltretirani-od-policijata-ja-dobija-s-makedonija-vo-strazburg-drzhavata-kje-treba-da-im-plati-po-7-500-evra/