CASE OF KITANOVSKA STANOJKOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. On 25 October 2011 two persons wearing black masks entered the applicants’ house with an intention to rob them. They hit V.K., the applicants’ husband and father, as well as the first applicant, inflicting on them severe injuries. In consequence, on 1 November 2011 V.K. died. After the incident, the first applicant was admitted to hospital where she remained in the intensive care unit until 4 November 2011. 6. On 3 November 2011 the public prosecutor requested that the Skopje Court of First Instance (“the trial court”) launched preliminary proceedings against F.T. (seventeen-year old at the time) on account of aggravated robbery and remanded him in custody. On the same date, the trial court ordered F.T.’s detention for fifteen days. The detention was ordered on account of the risk of him absconding and interfering with the investigation, namely “influencing the victims witnesses, in particular since they live in (F.T.’s) vicinity”. 7. By a decision of 17 November 2011, an investigating judge of the trial court extended F.T.’s detention for fifteen days for the same reasons as before. On 1 December 2011 the investigating judge ordered his release finding that “his attendance at the trial can be secured with a more lenient measure (seizure of passport and obligation to report to the court) ... Taking into account the individual circumstances and needs of [F.T.], his age, the fact that he is a regular student in third year of secondary school and a young man in development, [the court] considers that there are grounds for termination of the detention order ...” 8. On 13 January 2012 the public prosecutor lodged an indictment against F.T. and a certain S.G. They were indicted on charges of aggravated robbery with respect to the incident of 25 October 2011. 9. On 7 June 2012 the Skopje Court of First Instance, after it had heard evidence from the accused, the applicants, witnesses, experts, representatives of a Social Welfare Centre (who suggested that F.T. should be sentenced to a prison term if he was found guilty), and admitted considerable material evidence, including several expert reports (including a psychiatric expert report which confirmed that F.T. had been mentally fit when the crime had been committed) established the following: “At 1.30 a.m. on 25 October 2011 the accused S.G. and F.T., on the basis of a prior agreement, arrived [at the applicants’ house] with an intention to steal movable objects. With the use of force and dangerous object – a metal hammer with a wooden grip, they intentionally inflicted serious injuries on the now deceased V.[K.] and [the first applicant] in order to achieve their aim ... Wearing black masks, [S.G. and F.T.] arrived in front of [the applicants’ house] ... V.K. opened the door. They both entered the house. S.G. immediately started hitting V.K. on the head and hands with the metal hammer. V.K. sustained serious injuries-head wounds, multi-fragmented fractures accompanied with brain haemorrhages under the hard tissues of the brain ... linear skull fracture, as a result of which he died on 1 November 2011. Soon after, L.J., [the first applicant’s daughter and the second and third applicants’ sister] appeared and started screaming. S.G. then physically assaulted her by hitting her on the head ... She fell down, pretending to be dead. After [the first applicant] had heard L.J.’s screaming, she arrived in the kitchen in order to see what was going on, but when she arrived in the living room, she was assaulted by the minor F.T. He punched her hard in the head, inflicting severe injuries, namely four head wounds [cuts and bruises]; two sizeable skull fractures; haemorrhages under the soft tissues of the brain; and a brain lesion in the area of the left temple ... ... [the first applicant], V.[K.] and L.[J.] were taken by ambulance to Skopje Hospital. They were admitted by I.S., a doctor who was on duty at the time, who noted the serious physical injuries which both V.[K.] and [the first applicant] had sustained. They were kept in hospital, since their injuries were life-threatening ...” 10. As stated in the judgment, “[the second applicant] was not able to recognise her parents given their injuries. Her mother was so much beaten that she could not see; her eyes were closed and her face was so much coloured (модро) that she could not recognise her.” 11. The court found S.G. and F.T. guilty of aggravated robbery and, relying on Article 237(4) in relation to sub-paragraph 1 of the Criminal Code (see paragraph 16 below), sentenced them to six and five years’ imprisonment respectively. The time which F.T. had spent in pre-trial detention was to be deducted from the total length of his custodial sentence. As victims, the applicants were advised to pursue compensation claims by means of a separate civil action for damages. 12. By judgments of 26 November 2012 and 12 March 2013, the Skopje Court of Appeal and the Supreme Court, respectively, dismissed F.T.’s complaints about alleged errors on the facts and law, as well as alleged violations of the procedural rules. Both courts upheld the lower court’s judgment finding no grounds to depart from the facts as established by the trial court and the reasons given for the conviction. 13. On 2 January 2013 an enforcement judge responsible for execution of the custodial sentence issued an incarceration order (упатен акт) in respect of F.T. According to that order, F.T. was required to report to Ohrid Detention Centre on 30 January 2013 in order to serve the sentence. On 17 January 2013 F.T. requested that the sentence be postponed for family and health reasons. This request was dismissed by decisions of 21 January and 12 February 2013 by the enforcement judge and a three-judge panel of the trial court, respectively. On 21 February 2013 the detention centre informed the enforcement judge that F.T. had not arrived at the facility on the specified date. By letters dated 28 February, 8 April and 20 May 2013, the enforcement judge notified the trial court in Skopje responsible for minors about F.T.’s failure to report to the detention facility and sought instructions “given the urgent nature of the proceedings”. These letters remained unanswered. 14. The Government submitted that after the above correspondence, no enforcement judge had been appointed to deal with the case for over eight months. After such a judge had been appointed, on 27 March 2014 another incarceration order had been issued in respect of F.T. The latter sought, to no avail, for the custodial sentence to be adjourned. On 2 May 2014 the detention centre advised again that F.T. had not arrived at the facility. 15. On 30 June 2014 the enforcement judge ordered F.T.’s arrest. F.T. was arrested on 10 July 2014 and started serving his custodial sentence on 11 July 2014. The detention centre confirmed by letter that F.T. would remain in custody until 27 June 2019.