CASE OF ASLLANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano
5. The applicant was born in 1962 and lives in Ohrid. 6. The applicant was employed by a local company owned by Z.C., which operated a bakery in Resen. At 9.30 p.m. on 20 March 2008 several police officers arrived at the bakery in order to establish whether or not the employees were in possession of the necessary work and residence permits. G.S., a police officer at the time and currently the mayor of Resen, arrived sometime later. At 1.30 a.m. the next morning the applicant arrived, after being called by Z.C. Z.C. and the applicant were taken to the Resen police station and interviewed in the office of M.G., the commander-in-chief of Resen police. The applicant alleged that during the interview G.S. had ill-treated him and that he had left the police station at about 4.15 a.m. on 21 March 2008. 7. On the same day the applicant was examined in the Ohrid hospital by Dr L.D.B. who issued a certificate (no. 30) in which he was diagnosed with fractura osso nosi post traumatica-in obs. On the reverse of the certificate the following handwritten text appeared: “At 5.30 a.m., a fight (тепачка), an X-ray was taken of the nasal pyramid ... realignment and [splinting] were carried out ...” 8. An undated medical certificate (no. 51150) signed by Dr L.D.B. indicated the following: “[The applicant was] admitted on 21 March 2008 at 5.30 a.m. as an urgent case. It concerned a fight. The nose pyramid and the ... right upper nostril were visibly swollen. Assuming that the nasal septum was broken, an X-ray was taken of the nasal pyramid ... The radiologist’s findings are: no traumatic changes to the nasal bone. So the obstruction of the right nasal cavity was caused by swelling. The nasal septum has been realigned to the left and a double front [splint was made] ...” 9. On an unspecified date between 21 and 27 March 2008 the applicant lodged a complaint of ill-treatment by the police with the public prosecutor. Furthermore, on 27 March 2008 the applicant and Z.C. complained to the DCPS that they had been ill-treated by police officers during the incident between 20 and 21 March 2008. According to the official police notes from that date, the applicant complained that after the discussion at the bakery, he had been arrested and detained (приведен и задржан) at Resen police station for questioning. During questioning, G.S. had insulted and physically assaulted him. He had taken a newspaper out of the applicant’s bag and tried to stuff it into the applicant’s mouth. He had then punched him three times, causing visible injuries, namely a broken nose and facial bruising. Police officers D.L. and M.G., the commander-in-chief of the Resen police, had been present at the time. Z.C. complained that while at the bakery, G.S. had slapped him several times in the face in front of the workers. He had also insulted him and threatened to send him “in a black plastic bag to Kosovo” unless he admitted that he had been giving money to T., a police officer from Resen. 10. On 27 and 28 March 2008 the applicant was examined again at Ohrid Hospital and prescribed a therapy. 11. On 2 April 2008 he was examined at Skopje Hospital and diagnosed with facial bruising and a broken nose. Another certificate confirming the injuries was issued by the hospital on 15 July 2008. A CT scan on 25 September 2008 confirmed that he had suffered a broken nose without bone displacement. 12. In letters dated 24 April, 19 May and 6 June 2008 the public prosecutor, in response to the criminal complaint lodged by the applicant, asked the DCPS to communicate any relevant material regarding the alleged incident on 21 March 2008. 13. On 17 June 2008 the DCPS sent the public prosecutor a “special report” (посебен извештај) regarding the case, setting out a summary of the complaints made by the applicant and Z.C. It reads as follows: “To establish the truth regarding the allegations, the DCPS interviewed the complainants, E.A., B.J., B.T. (bakery workers), Resen labour inspector –D.Dz., as well as police officers G.S., M.G., D.L., Z.S., V.D., T.V., J.I., N.S., S.S. and J.F. On the basis of the discussions held and an inspection of the daily logbook and other official material regarding the case held at Resen police station, [the DCPS] establishes the following: On 20 March 2008 at about 9.45 p.m. K.G., D.L., Z.S. and V.D., plain-clothed police officers, and J.I., a police officer in (official) uniform, arrived at the A. bakery. After identifying themselves to the workers, including the owner Z.C., they informed them that they would be carrying out an inspection ... In the meantime, police officer G.S. arrived at the bakery. He joined in the discussion with Z.C. and the other workers, asking whether they had offered free bread, food and drinks to some police officers in return for their protection. He asked the owner ... Z.C., how much money he had been giving to police officer T. to protect him ... in the presence of the other workers, G.S. slapped Z.C. in the face several times. [He] then... ordered [him] to the storeroom, where G.S. continued slapping him in the face. He threatened to kill him, put him in a black plastic bag and return him to Kosovo unless he admitted to a judge that he had been giving money to T. [G.S.] insulted his ethnicity. ... On 21 March 2008 at about 1.30 a.m. [the applicant], Z.C. and [six other individuals] were arrested and detained at Resen police station ... When [the applicant] took documents out of his bag concerning the bakery ... G.S. noticed a [K.D] newspaper which had on its front page Kosovo Parliament’s declaration of independence and a picture of A.J.’s face with the new flag of Kosovo. G.S. started searching [the applicant’s] bag and took the newspaper out. He tried to stuff it into [the applicant’s] mouth ... [He] continued using offensive language to insult [the applicant’s] ethnicity. He suddenly punched him three times in the nose causing him visible injuries such as bruising. [The applicant’s] nose started to bleed. This happened in the presence of Z.C., M.G. and D.L. Later, when [the applicant] and Z.C. went to police officer N.S.’s office to give details about the workers from Kosovo, N.S. noticed blood on [the applicant’s] shirt. He asked [the applicant] about the origin of the blood. [He] replied that it was not right that he had been beaten up by a police officer and that he was ready to take responsibility for his actions. During the discussion, police officer G.S. denied the allegations made by the applicant and Z.C., explaining that he had not used any force during his conversation with them. [His] assertion was confirmed by police officers M.G., D.L., Z.S., V.D., T.V. and J.I., who [said] that no force had been used against [the applicant] or Z.C. by G.S. or any other police officer in the performance of their duties. Regarding the inspection carried out at the A. bakery in Resen, the police officers had no plan; there was no search warrant. Besides, there was no information in the daily logbook about [the applicant’s] arrest and detention at Resen police station, or [about] the use of force against him. Nor was a report [about the use of force] drawn up. After the interview ended and all the relevant evidence for misdemeanour proceedings had been obtained, [the applicant] was released; Z.C. and the other workers from Kosovo stayed... Given the injuries sustained, on 21 March 2008 at about 5 a.m. [the applicant] went to Ohrid [H]ospital, where he obtained immediate medical assistance. An X-ray was then taken of the nasal pyramid and [a nasal plaster] was made. A medical certificate, no.30 ...was issued in this regard.” 14. As noted in the special report, it was accompanied by considerable written material, which included the applicant’s complaint; official notes regarding interviews held with G.S. and various police officers including M.G., D.L., Z.S., V.D., T.V., J.I. and J.F and N.S.; medical certificates nos. 30 and 51150 and photographs of the applicant with a neck collar and plaster on his nose. The Government did not provide copies of the official notes concerning the interviews held with the police officers listed above. 15. Further to a request by the public prosecutor dated 12 June 2008, on 30 October 2008 an investigating judge of the Resen Court of First Instance (“the trial court”) opened an investigation into the allegations that G.S. had ill-treated, threatened and insulted Z.C. and the applicant. 16. Between 30 October and 17 December 2008 the investigating judge heard oral evidence from the applicant, G.S., Z.C., workers B.T. and B.J., police officers N.S., D.L., M.G. and other witnesses. 17. The applicant stated that the police officers present at the scene had ordered him and Z.C. to go to the police station. Two of them had joined him and Z.C. in the latter’s car and had set off to go there. The applicant repeated that during his interview at the police station, G.S. had used offensive language against him, had tried to stuff a newspaper into his mouth and had punched him three times in the face and nose. 18. G.S. denied all the accusations made against him by the applicant and Z.C. 19. Z.C., who gave evidence without the applicant and his representative present, stated: “... G.S. treated me correctly ... He did not ill-treat or insult me. It is untrue that G.S. or any other police inspector took me to [the storeroom], pushed me against the flour bags and slapped me. It is absolutely untrue ... I also want to emphasise that it is untrue that G.S. threatened to put me in a black plastic bag and send me back to Kosovo. The whole story was a set-up by [the applicant], so to speak. He suggested that I accuse [G.S.] of ill-treating, insulting and hitting me, telling me that we would both [get] 1 million euros (EUR) compensation from the State, and EUR 100,000 from the accused., I went to Skopje and gave a statement regarding the case, a false statement accusing [G.S.] in the fear that [the applicant] could deport me to Kosovo. An hour later, [the applicant] arrived at the bakery in a taxi from Ohrid. At the police’s request ... I went to Resen police station. I cannot say whether I went in ... with [the applicant], but what is relevant is that I, [the applicant], and five individuals from Kosovo went to Resen police station in cars and jeeps ...after a while, a policeman took me and [the applicant] into the chief-officer of Resen’s office. There was [G.S.], [another officer] and the chief-officer of Resen, I think his name is M.[G] ... At one point I noticed [the applicant] take documents and a newspaper from his bag ... I can firmly say that [G.S.] did not take the newspaper ... and did not hit [him] in the face. I do not know if there was blood on his shirt... I can say that the whole thing is a lie constructed by [the applicant], because he forced me to say that the accused had ill-treated and insulted me. Nor did the accused hit [the applicant] at the police station ...” 20. Bakery workers B.T. and B.J. both confirmed that during the incident on 20 March 2008 G.S. had spoken in a loud voice and asked them who they had given bread for free. Both confirmed that G.S. and Z.C. had gone to the storeroom and that Z.C. had returned with flour on his back. B.J. confirmed that G.S. had slapped Z.C., whereas B.T. maintained that she did not hear Z.C. complain that he had been slapped or ill-treated by anyone that night. 21. N.S., the police officer responsible for foreigners, stated: “after a while, Z.C. and an unknown national from the Republic of Macedonia, who said that his name was Esat Aslani [sic] and that he was the manager of the company, arrived at my office ... he literally told me ‘that’s all fine [referring to the ban on employing foreigners without a work permit], but I should not be beaten up’. I asked him who had beaten him up and pointing with his hand he said ‘[look] up here’. He showed me blood and I noticed that he had a visible blood stain, so to speak. He said that a police officer had beaten him up, but he did not specify who. I told him that it was not my job ... I did not see anything on [the applicant’s] face like a nose injury or blood ...” 22. Police officers D.L. and M.G. denied that G.S. had slapped Z.C. at the bakery or that G.S. had used offensive language. They confirmed that the applicant had arrived at the bakery and that both he and Z.C. had discussed the issue of illegal workers with them and G.S. in M.G.’s office at Resen police station. They also confirmed that the applicant had had a newspaper in his bag and that G.S. had enquired whose photograph was on the front page. Both denied that G.S. had hit the applicant. 23. A forensic medical opinion was commissioned by the trial court. On 28 January 2009 Dr Z.K., a court expert, drew up a medical report on the basis of the above-mentioned medical records and a further X-ray. The relevant parts of the report stated: “[the applicant] suffered a broken nose without any displacement of bone fragments, as well as facial bruising. These injuries ... amount to bodily injury. These injuries ... were a result of the use of brute force on the face.” 24. On 24 February 2009 the public prosecutor informed the investigating judge that he was withdrawing the charges against G.S. brought by the applicant and “the Ministry of the Interior’s DCPS by way of the special report” due to the lack of evidence that G.S. had committed the crime in question. 25. On 2 March 2009 the investigation was closed and the applicant was advised that he could pursue the prosecution as a subsidiary prosecutor. He availed himself of that opportunity and on 13 April 2009 brought a private indictment against G.S. on charges of ill-treatment and bodily injury. 26. On 15 May 2009 the trial court allowed an objection by G.S. and discontinued the proceedings. On 3 November 2009 that decision was quashed by the Bitola Court of Appeal, which ordered the trial court to further investigate allegations which had meanwhile been raised, namely that the applicant had sustained certain injuries in a traffic accident that had happened before the incident on 21 March 2008. The appellate court also ordered a confrontation between the applicant, G.S. and police officers D.L, M.G. and N.S. 27. At a hearing on 23 December 2009 the applicant confirmed that he had sustained a neck injury in a traffic accident that had happened on 6 or 7 September 2007 and that because of this he had been wearing a neck collar. On the photographs taken at the DCPS three days after the alleged incident, he had had a neck collar. He denied that there was any connection with the injuries to his nose and eye which G.S. had caused him. 28. On 5 February 2010 a confrontation took place between the applicant and police officers G.S., D.L. and M.G., who denied that G.S. had punched the applicant. 29. N.S., who also took part, stated: “... I noticed that [the applicant] had blood [on him], namely a small stain on his shirt.” 30. All the judges of the trial court, including the presiding judge, applied separately to be excluded from the case as they had already sat in a different capacity. On 1 June 2010 the Bitola Court of Appeal assigned the case to the Bitola Court of First Instance as the court with jurisdiction ratione loci. 31. The Bitola Court of First Instance held several hearings, in which it heard oral evidence from the applicant, G.S. and police officers D.L., M.G. and N.S. The defendant and the police officers maintained their previous statements, denying that G.S. had punched the applicant during the interview at Resen police station. N.S. stated, inter alia, that he had noticed a stain on the applicant’s shirt, but that he could not say for certain whether it had been blood. During the proceedings, the applicant asked the court to examine Z.C., who, according to official information from the Ministry of the Interior, had left the respondent State in November 2009. The court’s attempts to secure his presence at the trial were to no avail since his whereabouts remained unknown despite G.S.’s statements on 21 April and 24 December 2010 that he had been in contact with him and knew where he was living. At the hearing on 21 April 2010, the applicant stated that he had also been in contact with Z.C. who had agreed to give evidence in court and confirm his statement given to the DCPS. 32. On 1 February 2011 the court acquitted G.S. for lack of evidence. It established that he and several police officers had gone to the bakery to follow up allegations that illegal workers from Kosovo were employed there, and that both Z.C. and the applicant had been questioned at the police station. However, it found that none of the witnesses examined had corroborated the applicant’s allegations of ill-treatment. 33. On 19 May 2011 the Bitola Court of Appeal allowed an appeal lodged by the applicant and remitted the case for fresh examination. The court held that the first-instance court had not established relevant facts regarding the applicant’s injuries, which had been supported by relevant medical evidence. Furthermore, it had not given any reasons regarding the origin of those injuries, despite the fact that investigative steps had been taken with a view to establishing whether they had been caused in the car accident that had actually happened on 2 October 2007. In this connection, it instructed the lower court to reassess the available evidence and, if needed, to arrange a confrontation with the applicant and the witnesses. The lower court was also advised to analyse the available medical evidence and to consider what time the applicant sought medical assistance. 34. In the new proceedings, the first-instance court again examined the defendant and the applicant. A confrontation was arranged between him and the police officers who were present at the police station at the relevant time. It also heard oral evidence from Drs L.D.B. (who confirmed the veracity of the information contained in the medical certificate, see paragraphs 7 and 8 above) and Z.K., the court expert. 35. The applicant submitted in evidence a written statement dated 8 December 2011, certified by the Prizren (Kosovo) Court of First Instance, in which Z.C. stated that his testimony of 1 December 2008 (see paragraph 19 above) had been incorrect and given under duress. He confirmed that the applicant had been hit by G.S. at the police station in the presence of two police officers, as a result of which he had suffered a broken nose. He confirmed his statement given to the DCPS. He stated that he would not give oral evidence in the Bitola Court of First Instance because he feared for his personal safety. However, he agreed to testify in the Prizren Court, the EULEX (EU Rule of Law Mission to Kosovo) or the Macedonian Embassy in Pristina. 36. On 30 October 2012 the Bitola Court of First Instance again acquitted G.S. due to the lack of evidence to support the applicant’s allegations. The court stated that it had given weight to the evidence given by all the witnesses, especially given that most of them were police officers and Dr Z.K. was an experienced court expert. 37. On 24 January 2013 the Bitola Court of Appeal quashed that judgment and remitted the case for fresh examination, which, as noted in the judgment, was to be held before a different panel of first-instance court judges. The court found that the lower court had again not established the facts regarding the applicant’s injuries. The available medical evidence confirmed that the injuries described in the medical reports issued soon after the alleged incident on 21 March 2008 had not resulted from the car accident in 2007. The first-instance court had merely referred to the witness statements without assessing their probative value in connection with the medical evidence. It had given no weight to the medical evidence, which should have been analysed in relation to what time the applicant had sought medical assistance. The court instructed the lower court to reassess the evidence, organise a confrontation between the applicant and the defendant, and take other steps to establish the origin of the applicant’s injuries. 38. In the resumed proceedings and at the request of the Bitola Court of First Instance, on 30 March 2013 Dr Z.K. supplemented the expert opinion regarding the applicant’s broken nose, saying that it could not be ruled out that he had suffered it in the traffic accident in October 2007. This was so since broken noses healed slowly and remained X-ray detectable for a long time. He further stated that with a nasal injury such as that described in the medical certificate issued by Dr L.D.B. (see paragraph 7 above), bruising should appear between fifteen and twenty minutes after being struck. The medical certificate did not indicate that there had been any bruising on the applicant’s face when he had been examined at Ohrid Hospital. 39. Dr L.D.B. confirmed that she had indicated in the medical certificate everything she had considered relevant regarding the applicant’s injury. The applicant stated that she had refused to specify that he had been assaulted by the police since she stated “[she] does not want to go to court”. 40. N.S. commented on his previous statements given to the investigating and trial judges (see paragraphs 21 and 29 above), stating that he could not confirm whether he had seen a blood stain on the applicant’s shirt. 41. During the proceedings the court made attempts through the Ministry of Justice to secure Z.C.’s attendance at the trial. However, his whereabouts remained unknown despite the fact that the applicant stated that he had been in contact with him and that he had agreed to testify in the Skopje or Kumanovo courts due to fear. The court did not accept that Z.C. had given evidence in these courts. 42. In a decision of 4 February 2014, the court did not admit in evidence Z.C.’s written statement of 8 December 2011 (see paragraph 35 above) finding that it had not been given in court and could not serve as the basis for a court judgment. 43. On 7 February 2014 the Bitola Court of First Instance acquitted G.S. due to lack of evidence that he had committed the imputed crimes. The court confirmed that the police, including the accused, had been involved in the inspection at the bakery. The applicant, after being called by Z.C., had arrived at the bakery at 1.30 a.m. on 21 March 2008. At Resen police station, the accused had joined police officers M.G. and D.L., who had interviewed Z.C. Soon after, the applicant had arrived at the office even though he had not been officially summoned. The court also established that there had been a discussion between the accused and the applicant about the newspaper. After the discussion, the applicant had complained to police officer N.S. that he had been hit by a police inspector, alleging that a stain on his shirt had been blood from his nose. The applicant had no visible facial injuries. The Bitola Court of First Instance further indicated that after the applicant had left the police station at about 3 a.m., he had taken part in a fight with unknown individuals at an unknown place, and at 5.30 a.m. he had asked for medical assistance at Ohrid Hospital. Dr L.D.B. had examined him, noting in the medical certificate that the injuries had been sustained in a fight. The applicant had further convinced Z.C. to charge G.S. before the DCPS. As to the latter’s special report, the court stated: “... besides the statements of the complainants, accused and witnesses, it does not contain any indication that [the DCPS] established anything relevant for these proceedings, [including] any responsibility on the part of the accused ...” 44. Relying on medical evidence and statements by Drs L.D.B. and Z.K., the court established that at 5.30 a.m. on 21 March 2008, when the applicant had first been examined at Ohrid Hospital, he had had swelling on his nose, but no bruising. As specified in the medical certificate issued by Dr L.D.B., the injuries had been sustained in a fight. Given the statements the witnesses and Z.C. had given in the investigation, the court concluded that there had been no evidence to support the applicant’s allegations. 45. On 8 May 2014 the Bitola Court of Appeal allowed the applicant’s appeal and quashed the first-instance court’s judgment. It concluded that the lower court, notwithstanding that it had admitted considerable evidence, “had established incomplete and wrong facts” and “had drawn illogical and unreasonable conclusions”. In this connection, the court stated: “The court observes, as already noted in its judgment of 24 January 2013, that the first-instance court disregarded the medical [records] ... and adduced evidence as to whether there was any colouring to [the applicant’s] injury. During the proceedings, an attempt was made to relate [the applicant’s] injury to a traffic accident in October 2007 [in which] he had sustained injuries and worn a neck collar for longer. This is no longer argued in the impugned judgment, but it is alleged that [the applicant’s] injury was sustained in a fight he had taken part in before asking Dr L.D.B for medical assistance. It is unclear on what basis the first-instance court had drawn this conclusion ... The first-instance court now also did not sufficiently assess N.S.’s statement ... in which he clearly said that he had noticed a blood stain on [the applicant’s] shirt. In the impugned judgment, this witness’s statement is changed so that justification was given for the conclusion that [the applicant] did not sustain such an injury ... the first-instance court, in principle, accepts that [the applicant’s] injury was not a result of actions taken by the accused, but ...was sustained in a fight with unidentified persons at an unknown location immediately before the [medical] examination. ... In such circumstances, the first-instance court finds that [the applicant’s] injury was caused later than the interview that took place at Resen police station ... ... there is no evidence that after the interview [at the police station the applicant] went somewhere, took part in a fight with unidentified individuals and sustained injuries before asking the doctor for a medical check-up. The reasons the first-instance court gives in support of its judgment are unclear and, to a considerable extent, contradictory and inconsistent with the evidence admitted ...” 46. On 18 March 2015 the Bitola Court of First Instance acquitted (ослободува од обвинение) G.S. of ill-treatment and dismissed the indictment (се одбива обвинението) as regards the accusations of bodily injury. In this latter connection, the court found that the prosecution had become time-barred. As regards the charges of ill-treatment the court found, for the same reasons as in the previous judgment, that there was insufficient evidence that the applicant’s injury to his nose had been caused by G.S. On the contrary, all the available material suggested that it had been sustained in a fight that had taken place immediately before the applicant had asked for medical assistance at Ohrid Hospital. 47. On 9 July 2015 the Bitola Court of Appeal allowed the applicant’s appeal and remitted the case to the first-instance court for fresh examination, which, as noted in the judgment, was to be held before a different panel of judges. The court stated that: “... the conclusion of the first-instance court was in serious doubt and the established facts were not supported by the evidence admitted ... the first-instance court again disregarded the instructions of the Court of Appeal specified in the [previous] judgments. The first-instance court disregarded the medical [records] ... the first-instance court was previously instructed to assess [N.S.’s] statement; [the latter], which included some indications as to what had happened ... As previously stated, it is clear from [N.S.’s] statement that he had been told by [the applicant] that it had not been right to work without a permit, but that [the applicant] should not have been beaten up. Witness [N.S.] clearly stated that he had seen a blood stain [around] the applicant’s stomach [area] ...It would be necessary for [the first-instance court] to reassess evidence already admitted and pay particular attention to the instructions [specified] in this judgment and earlier judgments of the Court of Appeal, which suggest that the available evidence is sufficient [for the court] to draw a conclusion as to whether the accused had undertaken those actions and committed the crime imputed to him ...” 48. The fifth round of proceedings is at present pending before the first-instance court. 49. In a judgment of 12 November 2013, which became final on 4 December 2013, the Supreme Court allowed the applicant’s request for protection of the right to a hearing within a reasonable time (“length remedy”) and acknowledged that the criminal proceedings against G.S. had been too long. It held that the applicant had not contributed to the length of the proceedings, which had been protracted due to the fact that two courts of first-instance had adjudicated the case; the Bitola Court of First Instance had not been diligent in fixing court hearings and the case had been remitted to it twice already. It awarded the applicant the equivalent of 500 euros (EUR) in compensation and ordered the Bitola Court of First Instance to conclude the criminal proceedings as quickly as possible, but no later than six months after receipt of its judgment.