CASE OF SAŠO GORGIEV 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 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1972 and lives in Skopje. 6. The applicant worked as a waiter in a bar in Skopje. At 3.50 a.m. on 6 January 2002, R.D., a police reservist, fired a shot in the bar hitting the applicant in the chest. According to a medical certificate of 12 September 2002 issued by Skopje Clinical Centre , the applicant was urgently admitted in a “serious condition” (тешка општа состојба). The injuries sustained were described as follows: broken right clavicle and four broken ribs, injury to the subclavian artery, internal haemorrhaging and seizure of the brachial plexus nerves. His right arm was paralysed. The conclusion was that the applicant had sustained serious bodily injury with life-threatening damage and lasting consequences (витална загрозеност и трајни последици). He was operated on twice, the second time in April 2002 in the Clinical Centre of Belgrade, Serbia. 7. On 27 March 2003 the Skopje Court of First Instance (“the trial court”) convicted R.D. in absentia of “serious crimes against public security” (тешки дела против општата сигурност). He was sentenced to two years’ imprisonment. After the court had heard oral evidence from R.D., the applicant and six witnesses and examined other material evidence, it found that R.D., while intoxicated, had unintentionally pulled the trigger of his service gun and shot the applicant, who had been at a distance of one metre. The applicant was advised to pursue his compensation claim by means of a separate civil action. The decision became final on 8 May 2003. 8. R.D. started serving his sentence on 6 June 2008. On 23 June 2008 the trial court reopened the proceedings, at R.D.’s request. On 12 March 2009 the trial court found R.D. guilty again and sentenced him to two years’ imprisonment, suspended for four years. No information was provided as to whether that decision was the subject of an appeal or became final. 9. On 11 November 2002 the applicant, represented by Mr P. Šilegov, brought a civil action against the Ministry of the Interior (“the Ministry”) seeking compensation for pecuniary and non-pecuniary loss related to the injury sustained as a result of R.D.’s action. He claimed that the State should be held responsible, given that R.D., instead of being on duty in a police station, had shot him in the bar. He had used his service gun and had been in uniform. He claimed 28,000,000 Macedonian denars (MKD) in respect of non-pecuniary damage and MKD 208,480 for pecuniary damage (expenses related to his medical treatment). 10. After five adjournments, the Skopje Court of First Instance dismissed the applicant’s claim on 12 December 2003, finding that the Ministry lacked the requisite capacity to be sued for the damage caused by R.D., who, being a police reservist, was regarded a State official. The court established that between 7.30 p.m. on 5 January 2002 and 7.30 a.m. on 6 January 2002 R.D. had been on duty in a police station in Skopje. He had been assigned to stand guard (службена задача – стража) between midnight and 1 a.m. and between 6 a.m. and 7 a.m. on 6 January 2002. After 1 a.m. on 6 January 2002, instead of returning to the police station, R.D. had gone to the bar on his own initiative, without informing his superior or the latter’s replacement. He had been in uniform and had been carrying his service gun. In the bar, in the presence of other customers and under the influence of alcohol, he had pulled the gun out and shot the applicant, who had been in front of him at a distance of about 1.5 metres. The court found that the applicant had suffered damage as a result of R.D.’s action. However, in order for the Ministry to be held responsible under section 157 of the Obligations Act (see paragraph 19 below), the court said that “... certain conditions need to be met: the damage must be caused by an official (овластено службено лице), it must be sustained by a physical or legal person and, in particular, it has to be caused by an official in the performance of his or her duties. It also has to result from an unlawful action. The defendant (the State) will be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties. An action will be regarded as carried out in the performance of a duty if it is part of the duties (функција) of the official. It is a a harmful action taken within working hours, in the official capacity of the person concerned and as part of his official duties. Damage may be caused outside official duties, but there must be a causal link with the performance of the duty or the duty itself ... in the present case, R.D. was not in the bar in an official capacity ... so the damage was not caused in connection with the performance of the Ministry’s duties, even though it was caused at a time when R.D. was supposed to be on duty. At the critical time and place R.D. was not acting in an official capacity but as a private person, despite the fact that it was within working hours; he was in uniform and used his service gun. R.D. is responsible for the action taken and damage caused. There is no causal link between his action and his duty ... The fact that [R.D.] was in uniform and used his service gun does not mean, in itself, that he was acting in an official capacity. R.D. did not use the gun in connection with the performance of his duties, but as a customer in the bar ... At the time when the damage occurred, R.D., as a police reservist, was an adult and trained in the use of the gun. The defendant, as the owner of the gun, is relieved, under section 163(2) of the Obligations Act, from responsibility, given that the damage occurred solely as a result of an unforeseeable action by its agent whose consequences could neither have been prevented nor removed.” 11. The court concluded that the applicant remained entitled to claim compensation from R.D. under section 141 of the Obligations Act (see paragraph 16 below). 12. On 3 March 2004 the applicant appealed, arguing that the Ministry was to be held responsible for R.D.’s actions, as he had acted while on duty, had been in uniform and had fired his service gun. In his submission, the Ministry’s responsibility derived from section 103 of the Employment Act (see paragraph 20 below) under which the Ministry could claim reimbursement from R.D. Lastly, he submitted that he had suffered irreparable damage as a result of the incident, as his right arm had become permanently paralysed. 13. On 27 April 2004 the Skopje Court of Appeal dismissed the applicant’s appeal, finding no grounds on which to depart from the lower court’s finding that R.D.’s actions in the bar were not related to his official duties as a police officer. It went on to find that when R.D. shot the applicant he had not been acting as a police officer and had not been performing official duties. There was accordingly no responsibility on the part of the Ministry. The court confirmed the applicant’s entitlement to claim compensation from R.D. 14. On 21 July 2004 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court, arguing, inter alia, that the Court of Appeal had not addressed his arguments regarding the Ministry’s responsibility under the Employment Act. 15. On 31 May 2006 the Supreme Court dismissed the applicant’s appeal on points of law, reiterating the reasons given by the lower courts. 16. Section 141 of the Obligations Act sets out the general principle governing civil compensation claims. 17. Section 157 provides that the employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to these. The victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if the latter caused the damage intentionally or negligently. 18. Under section 160, the owner of a dangerous item (опасен предмет) is responsible for any damage caused by it. 19. Section 163(2) provides that the owner of a dangerous item can be relieved of responsibility if it can be shown that the damage was caused exclusively by an unforeseeable action on the part of the victim or a third person whose consequences could not have been prevented or removed. 20. Under section 103 of the Employment Act of 1993, as in force at that time, an employer was responsible for any damage caused by an employee while performing his or her duties or in relation to them. The employer could seek reimbursement of the compensation from the employee if the latter had caused the damage intentionally or negligently. 21. Section 24 of the Internal Affairs Act, as in force at the time, specified which agents were regarded as State officials. 22. Under section 26, State officials were required to perform their duties at all times, regardless as to whether they were on or off duty. 23. In a state of war or emergency, the Ministry could call up reservists in order to ensure public safety and prevent mass disorder (section 45(2) of the Internal Affairs Act). Reservists could be recruited for training or practice. During their period of service, reservists were regarded as State officials within the meaning of section 24 of the Act (section 46). 24. The Government provided a copy of a first-instance court decision concerning a compensation claim submitted against the Ministry and a police officer who had negligently fired his service gun inside the Ministry building, as a result of which the claimant sustained bodily injuries. The first-instance court found the police officer directly responsible and ordered him to pay the damages. It dismissed the claim against the Ministry on grounds of lack of capacity to be sued. No information was provided as to whether this decision became final (П.бр.1274/2007 of 2 July 2008). The police officer in this case was convicted of “serious crimes against public security” and sentenced to a suspended prison term (К.бр.751/06 of 21 February 2007). 25. Article 11 of the Basic Principles provides, inter alia, that: “Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorised to carry firearms... (b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; ... (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.” 26. Article 37 of the Code provides that “the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective”. 27. The commentary to Article 37 of the Code reads, inter alia, as follows: “...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...”