(Application no. 69908/01)
15 February 2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Third Section2), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 19 January 2006 and 25 January 2007,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no.
69908/01) against the
2. The applicant was represented by Ms A. Danka
from the European Roma Rights Centre (“the ERRC”) and Mr J. Madzunarov
(“the Macedonian lawyer”), lawyers practising in
3. The applicant alleged that he was ill-treated by police, that no effective investigation had been carried out and that he had no effective remedy against the public prosecutor's inactivity.
4. By a decision of 11 April 2006, the Court declared the application admissible.
5. The parties replied in writing to each other's observations.
6. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 January 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the
Mrs R. Lazareska Gerovska, Agent,
Mr T. Stojanovski, Expert;
(b) for the
Mrs D. Post, Counsel,
Mrs A. Danka, Staff Attorney,
Mr J. Madzunarov, the Macedonian lawyer.
7. The Court heard addresses by Mrs Lazareska Gerovska and Mrs Post and their answers to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1965 and lives in Štip, in the former Yugoslav Republic of Macedonia.
1. The incident
(a) The applicant's version of events
9. On 16 April 1998, at around 9 p.m., the applicant and his friend F.D., both citizens of the former Yugoslav Republic of Macedonia of Roma ethnic origin, were having a drink in a downtown bar in Štip. On the other side of the bar, two men were gambling. The man who lost pulled out a gun, fired several shots into the air and one into the ground, and asked for his money back. All those in the bar, including the applicant and his friend, tried to leave, but were ultimately unable to do so because of the crowd that had already blocked the exit.
10. In the meantime, five police officers arrived at the scene of the incident and turned to the applicant and his friend. One of the police officers caught the applicant by his hair and pushed him against the police car, while another officer grabbed his friend's arm and twisted it behind his back. Shortly afterwards, the police took them to the local police station, where they were locked up in two separate cells.
11. The applicant maintains that around midnight one of the police officers concerned came to the cell where he was being held and told him to bend over. The applicant alleges that the police officer kicked him in his head, which caused bleeding from his mouth. As he fell down on the floor, the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon. The applicant further maintains that another police officer, who was allegedly beating his friend in the other cell, came to his cell later and continued to batter him until 5 a.m. They were then taken to an office, where they were questioned about the incident. After drawing up a report, the police released the applicant and his friend at around 11 a.m. the next day.
12. Following his release, the applicant went to the
Emergency Aid Unit at
13. The applicant submitted an excerpt from a newspaper together with his statement concerning the incident in which he had made no allegations of being beaten at the scene in the bar. A photograph of him having a swollen right eye also appeared in the newspaper.
14. The applicant and his friend have never been charged with any offence in relation to the incident at issue.
(b) The Government's version of events
15. On 16 April 1998, between 9 and 10 p.m., the applicant and F.D. arrived at the café bar Lotus. They joined a group watching people gambling with dice. At around 2 a.m. on 17 April one of the losing gamblers claimed that the dice had been fixed and demanded his money back. An argument started in which the applicant and F.D. participated. When a certain J.N. took out a pistol and fired, F.D. tackled him and the gun fell on the floor. At about 2.30 a.m. the police came to the scene after the shooting incident had been reported to them. Meanwhile, there was a certain disruption inside the bar, after which some people went outside. The police's inspection of the scene lasted until 4.30 a.m.
16. The police sought to take M.S., an individual reported to them, into custody. The applicant and F.D., who had taken the side of M.S. in the dispute, obstructed the police's efforts, allowing M.S. to escape. F.D. also assaulted another person on the scene. The police then decided to take all those present, including the applicant, to the police station.
17. At 5 a.m. the applicant and F.D. were interviewed by the police. They were released at 7.30 a.m. No force was used against the applicant during the questioning, nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained. No charges were subsequently brought against him.
2. The criminal investigation
18. On 25 May 1998 the applicant, through his legal representative, filed a criminal complaint (кривична пријава) with the Štip Basic Public Prosecutor's Office (Основно Јавно Обвинителство Штип) against an unidentified police officer under section 143 of the Criminal Code (see “Relevant domestic law”). In the complaint, the applicant set out a factual account of the incident and alleged that the officer concerned had ill-treated him while he was in police custody. He requested the public prosecutor's office to initiate proceedings as provided for by law. The medical certificate of 17 April 1998 was produced in support of his complaint.
19. On 28 May 1999 the applicant's legal representative wrote a letter to the Štip public prosecutor, stressing that his criminal complaint had been filed more than a year previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor's office to identify the offenders and to initiate a formal investigation.
20. As there was again no reply, on 25 October 1999 the applicant's lawyer sent another letter to the public prosecutor, requesting information about any action undertaken concerning the applicant's case. He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned, which had been determined in the course of the civil proceedings.
21. In a letter dated 11 November 1999 the Štip public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of the Interior (“the Ministry”). However, to date his office had received no information from the Ministry.
22. As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities, the proceedings concerning his criminal complaint are still pending.
3. The civil proceedings
23. On 25 May 1998 the applicant submitted a compensation claim against the respondent State and the Ministry for the non-pecuniary damage he had