DEARI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicants, Mr Gajur Deari (“the first applicant”), Mr Bedri Murtezanov (“the second applicant”) and Mr Asllan Sherifi (“the third applicant”), are Macedonian nationals who were born in 1952, 1952 and 1955 respectively and live in Golema Recica, Tetovo and Skopje. They were represented before the Court by Ms Nuala Mole, of the Aire Centre (Advice on Individual Rights in Europe, London). The Macedonian Government (“the Government”) were initially represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant is the father of Mr Agron Deari (“Mr A.D.”) who was killed on 30 August 2002; the second applicant is the father of Mr Jakup Murtezanov (“Mr J.M.”); and the third applicant is the father of Mr Qahil Sherifi (“Mr Q.S.”). Mr J.M. and Mr Q.S. were killed on 7 September 2003. 4. The Government invited the Court to view the events giving rise to the applicants’ complaints in the light of the 2001 armed conflict between ethnic Albanians and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas several years after the conflict. In respect of Mr A.D.’s killing, particular attention was drawn to the incidents of 29 August 2002 on the Tetovo-Gostivar highway (“the highway”) in which armed civilians kidnapped eight persons, including two minor girls. In this connection the Government referred to a public announcement of 30 August 2002 in which the Ministry of the Interior (“the Ministry”) called for the inhabitants of neighbouring villages to remain, for security reasons, in their homes. 5. At 3.30 a.m. on 30 August 2002 Mr A.D. was travelling in a car with foreign registration plates, together with J.I., when police officers from the special police force “Lions”, under the Ministry, stopped them on the highway. According to a report drawn up the same day by the Ministry, Mr A.D., in an attempt to flee the scene, resisted the security forces by pulling out a pistol. Firearms were used against him. He sustained several bodily injuries. Furthermore, two pistols were found in the car. The local police station was alerted immediately. Police officers arrived at the scene and took Mr A.D., who still held the pistol in his hand, to the local medical centre where his death was confirmed. J.I. was arrested on account of unlawful possession of firearms and released without charge. The names of the officers involved in his arrest were not recorded in any register of the Ministry. 6. On the same day the investigating judge, public prosecutor, police and representatives of the OSCE’s mission in the respondent State inspected the scene, but no useful evidence was found owing to heavy rainfall. In a written and duly signed statement given before the investigating judge, the first applicant requested that no autopsy or investigation be conducted in relation to his son’s death. In view of that request, the investigating judge ordered an external examination of Mr A.D.’s corpse and requested that an expert describe the injuries, the way in which they had been sustained, as well as to determine, if possible, the time and direct cause of Mr A.D.’s death. The expert report noted bruises to Mr A.D.’s head, face, chest and stomach and several penetrating gun-shot wounds to his leg, arms, chest and neck. 7. On 2 September 2002 the public prosecutor requested that the investigating judge take certain steps to investigate Mr A.D.’s death. The request referred to the on-site examination report of 30 August 2002, which was to be regarded as a criminal complaint. 8. On 5 September 2002 the Ministry questioned J.I. According to a report signed by a police officer, J.I. stated, inter alia: “... we [with Mr A.D.] were stopped by the police. I showed them my ID and car registration document. The officers ordered me to step out of the car. A. [Mr A.D.] got out of the car as well. I was ordered to open the boot. ... During the search of the boot and the interior of the car, I heard an officer saying ‘I’ve found two guns’. After this statement, my hands were put behind my back and tied ... At one moment, they put my head in the boot. While my torso was in the boot I heard gunshots, after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio, saying that one of the persons concerned had been killed after he had fired a gun while attempting to flee ...” 9. On the same day, the Ministry submitted a criminal complaint against an unidentified perpetrator. Photo documentation of the scene and of Mr A.D.’s corpse, as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge. 10. On 22 November 2002 the Forensic Science Department (Управа за криминалистичка техника) at the Ministry sent the investigating judge an expert report concerning Mr A.D.’s pistol, which stated the following: “... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr A.D. ... The reaction was negative, namely no nitrate residue was discovered. We emphasise that the samples were covered in blood, which significantly affected the analysis for nitrate residue... Since the clothes were abundantly covered in blood, we cannot determine the distance from which the gunshots were fired ...” 11. The first applicant alleged that on 27 September 2002 he had notified the OSCE’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son’s death. No evidence was provided in this respect. 12. In February 2003 the investigating judge returned the case file to the public prosecutor. The latter requested that the Ministry determine the identity of the police officers involved in the incident. 13. In a letter of 15 August 2003, the Ministry confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions (see paragraphs 35 and 36 below) after the incident. 14. In December 2003 the public prosecutor again asked the Ministry to submit the required information. 15. At the same time, a working group was set up to investigate several cases of alleged police abuse of citizens of Albanian ethnic origin, including the present case. The working group involved representatives of the Ministry, the OSCE, the EU, NATO and the US Embassy in the respondent State. The working group operated between December 2004 and October 2005. 16. On 12 January 2005 the investigating judge heard evidence from J.I. According to the transcript signed by J.I., the latter stated, inter alia: “... When we approached the toll booth on the Tetovo-Gostivar highway, I noticed a high police presence and decided to turn around and take the ‘old road’... While driving on the old road ... I again noticed a high police presence; the road was blocked by a heavy vehicle. At both sides of the road there were many armed police officers. A police officer used a lamp to stop our car. He approached the car and requested documents. I gave him my registration document and my ID. Then he grabbed my shirt and pulled me out of the car. After me, Mr A.D. was also removed from the car. Both of us were standing in front of the car, while police officers conducted the search. One of them said that he had found two guns in the car. Each of them belonged to me and A. [Mr A.D.]. At that moment, a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up; another officer grabbed my leg and pushed me to the ground. They dragged me to the back of the car. ... They put me head first into the boot. My legs were outside the car. An officer pointed an automatic gun at my head and another beat me. I couldn’t see what was happening to A. I heard someone saying ‘stop, hold on’. Gunshots were subsequently heard, I think from several weapons, but I did not know what was going on. They took off my sweater and put it over my head. They took me out of the boot and placed me on the ground ...The two pistols were in the compartment in front of A.’s seat ... The person who pulled me out of the car that night was wearing a mask, so I could see only his eyes, I couldn’t see his face. Others were wearing masks as well. I only noticed the ‘Lions’ symbol on their uniforms...” 17. Between March and June 2005, the investigating judge examined eight police officers. Between September and December 2005, the investigating judge requested, in vain, that a certain police officer, A.M., be summoned. 18. In December 2005 the file was forwarded to the public prosecutor, who, in September 2006, returned it to the investigating judge, requesting, inter alia, that the first applicant be examined. By a letter of 17 November 2006, the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness. After the file was returned to the public prosecutor, the latter requested, by a letter of 2 February 2007, that the Ministry undertake additional measures to identify the individuals involved in Mr A.D.’s killing. 19. On 15 September 2008 the first applicant, with the assistance of Mr M.R., a lawyer from Skopje, sought information from the public prosecutor about the death of his son and requested a copy of the case file. On 17 September 2008 the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken, but the perpetrator had not yet been discovered. Mr M.R. was permitted to inspect the case file. 20. The first applicant took no further action. It appears that the investigation into the killing of Mr A.D. is still pending. 21. On 7 September 2003 the Ministry of the Interior and the Ministry of Defence conducted a joint operation in the village of Brest with the purpose of apprehending an armed group suspected of having committed several crimes, including robbery and kidnapping of civilians and police officers. There was an exchange of fire in which automatic long-range weapons and mortars were used. After the exchange of fire, the security forces searched the area and discovered five bunkers and a large quantity of heavy weaponry and ammunition. Mr J.M. and Mr Q.S. were killed in this operation. According to the post-mortem reports of the same date drawn up by the Forensic Institute, Mr J.M. sustained six bullet wounds and Mr Q.S. sustained four. Gunpowder tests confirmed the presence of nitrate residue on the hands of Mr J.M. and Mr Q.S. 22. On 12 September 2003 the Ministry submitted photos and video material of Mr J.M.’s and Mr Q.S.’s corpses to the public prosecutor, as well as an expert report regarding the weaponry and ammunition found. 23. On 7 November 2003 the public prosecutor requested information from the Ministry of the Interior. In a letter of 11 July 2005 the Ministry informed the public prosecutor that, owing to the use of heavy weapons by the armed group, police officers had not been able to reach the armed group’s positions, but that military forces from the Ministry of Defence had arrived at the critical area instead. 24. On 21 September 2005 the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor’s intervention. 25. As stated by the Government, on the basis of recommendations of the working group that also looked into this case, on 31 January and 4 April 2006 the public prosecutor contacted the Ministry of Defence seeking information about the operation. In a letter of 5 June 2006, the Ministry of Defence indicated that the operation had been carried out by the Ministry of the Interior. On 15 February 2007 the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation. In submissions of 16 April 2007, the Ministry of the Interior confirmed its position indicated in its letter of 11 July 2005 and invited the public prosecutor to clarify the matter with the Ministry of Defence. The same was repeated in the Ministry’s letter dated 26 June 2008. 26. On 17 September 2008 the second and third applicants, represented by Mr M.R., asked the public prosecutor to provide them with a copy of the case file. They stated that all the information they had obtained about the death of Mr J.M. and Mr Q.S. had come from the media since no competent institution had ever contacted them concerning the case. By a letter of 26 December 2008, the public prosecutor informed the second and third applicants of his requests for information from both Ministries and his “resolution” of 21 September 2005 (see paragraph 24 above). According to the Government, this letter was sent on 21 January 2009. 27. The second and third applicants took no further action. It appears that the investigation into the killing of Mr J.M. and Mr Q.S. is still pending. 28. The applicants submitted extracts of articles and reports published between April 1998 and 2005 by Human Rights Watch and Amnesty International about alleged police abuse, in particular of Macedonian citizens of Albanian ethnic origin. Most of the documents concerned the period before and after the 2001 armed conflict. None of them discussed the deaths of the applicants’ sons. 29. Article 123 of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of at least five years. It also provides for imprisonment of at least ten years or lifetime imprisonment in the case of aggravated murder. 30. The provisions of the Criminal Proceedings Act relevant to the present case were described in the Jašar judgment (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 33-40, 15 February 2007). 31. Section 25 (1) and (3) of the Public Prosecution Act of 2004 (Закон за Јавното Обвинителство, Official Gazette no. 38/2004) provided that citizens, bodies and other legal persons could make submissions, complaints and statements to the public prosecutor in relation to activities that fell within his or her competence. The public prosecutor was required to take, as soon as possible, but not later than three months after the service of a criminal complaint, any action specified by law. 32. Under section 47 of this Act, the superior prosecutor’s office supervised the work of the subordinate prosecutor’s office through an inspection of case files and in any other way. 33. Section 21 of the Public Prosecution Act of 2007 (Official Gazette no.150/2007) provides that the superior prosecutor’s office supervises the work of the subordinate prosecutor’s office in concrete cases brought before the latter. The aim of that supervision is to detect inter alia any lack of professionalism, unlawful, untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings. 34. Section 39 (1) and (3) of that Act provides for the same rules as those specified in section 25 of the 2004 Public Prosecution Act (see paragraph 31 above). 35. Under Article 27 of the Government Decree on the use of coercion and firearms, when means of coercion or firearms have been used, the State official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified. 36.