CASE OF DZELADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
6. At around midnight on 2 August 1998, a group of Roma, who were leaving a restaurant where they had attended a Romani circumcision celebration, were involved in a fight with Z.S., a wrestling champion who worked as a fitness instructor for the police force. Z.S. reported the incident to the local police and around ten police officers went to the restaurant in search of the alleged attackers. When they entered the restaurant, they allegedly started to assault the guests. 7. According to the applicants, they were beaten with truncheons, punched and kicked. The fifth applicant said that he was grabbed by the hair and beaten all over his body; he was then handcuffed and taken to the police station where he was subjected to severe ill-treatment. The second applicant also complained that he had been beaten, despite his wife’s attempts to protect him. The second and fourth applicants said that they were taken to a police station where they were kept for several hours and beaten by the police officers, who repeatedly insulted them on account of their ethnic origin. 8. The third applicant was seven months pregnant when she was beaten in the restaurant. Following the raid, the police were asked to arrange for her to be taken to hospital, but refused. She somehow managed to get to the hospital, but the doctors refused to examine her when they found out that her assailants had been police officers. She said that she was severely distressed and in pain throughout the night. The following day, she was examined in the same hospital, but no injuries or problems were detected. 9. It was alleged that twenty other Roma asked for medical help that night, but they were all turned down as they could not pay for treatment. 10. The next day, in response to an earlier police summons, the first applicant went to the police station where he was allegedly beaten for two hours and insulted on account of his ethnic origin. He said that some six police officers had hit him with a truncheon, and punched and kicked him. A gun had been held to his head, at which point he had falsely confessed to his involvement in the fight with Z.S. 11. The applicants, in support of their application before the Court, provided photographs of bruises on their backs, heads and buttocks. 12. At around 11.40 p.m. on 2 August 1998 the police officers on duty received a telephone call saying that four Roma, who had attended a circumcision party in a restaurant, had stopped a car and physically attacked the driver (Z.S.). Three police officers went to the scene. After Z.S. had identified the first applicant as being among the attackers, the police officers requested him to leave the group and get into the police car. Although the police officers did nothing to provoke the group, some fifty to eighty Roma started to throw stones and bottles causing facial injuries to one of the officers. The police car was also damaged. As the police officers were prevented from arresting the first applicant, who had fled the scene, and as they feared for their own safety, they radioed for backup. One of the officers fired two shots in the air to disperse the crowd. A patrol of five more officers arrived at the scene. Another two shots were fired in the air. 13. As these attempts to restore order proved unsuccessful, the police officers used batons. After the crowd had been broken up, the police took various people, including the second and fifth applicants, to the police station. After being questioned about the assault on Z.S., the second and fifth applicants were released. It was established that they had been among the crowd, but had not been involved in the physical attack on Z.S. No force was used against them at the police station. According to the medical records of the Emergency Unit of Štip Hospital, none of the persons apprehended or involved in the fight had requested medical assistance as a result of the police intervention. On the other hand, three police officers had been examined and two of them were found to have sustained minor injuries. 14. According to the medical records, at the request of a pregnant woman, a medical team had gone to the scene and brought her to the hospital. An entry in the hospital’s medical records of 3 August 1998 showed that one Sulimanova Ramize or Demirova Remzie had been “urgently” admitted with bruising to the head. Two doctors, a surgeon and a gynaecologist, had examined her and a note had been made in the record: “no funds – fight”. No injuries to the foetus or other pregnancy-related trauma were detected. On 4 August 1998 the same findings were recorded by another doctor in the medical records of Sulimanova Ramize, who, it was noted, had frequently requested medical assistance in the past for injuries sustained in fights and had sustained a black eye on the most recent occasion. An eyewitness to the incident stated that a pregnant woman had hit a police officer over the head with a bottle. 15. The Government based their version of events on a number of police reports that had been compiled between 3 August and 11 September 1998. 16. On 3 August 1998 the chief of the local police drew up a report concerning the coercive measures that had been used during the incident. It reads, inter alia, as follows: “...on 2 August 1998 a phone call was received [to the effect] that Z.S. had been physically attacked by a group of Roma ... Mr S., Mr A. and Mr M. [police officers] arrived at the scene ... Z.S. identified one of the attackers ... he was requested to get into the police car. The person concerned came forward without resisting ..., but when a van arrived ... the crowd attacked it, started to drag Mr S. and Mr M. ... they started to throw stones, bottles and other objects at the officers and the police car. The suspect fled ... Backup was immediately requested; five police officers arrived after two to three minutes ... around 60 to 80 people threw stones, bottles and other items ... police officers A.D., M.Z. and N.P. were hit ... Physical force and rubber batons were used against several Roma by the officers S.S., A.D., M.Z., S.V., T.T., N.P., B.R., S.V. and Z.S. ... because the crowd continued to throw stones and other objects at the officers despite warnings (six shots fired in the air) ...” 17. In the telegram, the police described the incident and stated that four people, including the second and fifth applicants, had been brought to the police station for questioning. It said that three police officers had sustained minor injuries in the intervention in which stones and bottles had been thrown at the police officers. 18. In a document of 11 September 1998, the Štip police indicated that according to the statement of an eyewitness, the incident had caused considerable alarm. This is how the eyewitness described the incident: “...my wife and I were extremely unnerved by the incident and the intensity of the attack by the Roma, first, against the occupant of the car [referring to Z.S.], and then against the police officers who had done nothing to anger the crowd. It was simply that the savage nature [of the attack] was clear to see and incited by an inebriated group of people who had been celebrating a circumcision ...” 19. Concerning the use of coercive measures, the report stated, inter alia: “... it is considered that the use of rubber batons was justified for the following reasons: [there had been an] unmotivated and brutal attack on Z.S.; the authorised officers had been prevented from carrying out an official activity, i.e. identifying the perpetrator of an offence, although no coercive measures had been used against the person concerned or anyone else; the life and physical integrity of the authorised officers had been endangered by a sustained attack which was liable to cause grievous bodily harm or fatal injury; officials were injured and a police car damaged; orders by the police officers were disobeyed and the attack had continued even after shots were fired in the air ...” 20. The document continued: “... some [sections of the] media and citizens’ associations are minimising or ignoring the objective circumstances and the responsibility of the perpetrators and the individual involvement of each of the participants in the group, tendentiously asserting that the police targeted the Roma population, whereas they were not influenced by the perpetrators’ ethnic affiliation, but merely responded to the concrete circumstances of the incident ...” 21. It was further noted that a group of some twenty to thirty Roma and Mr A.B., a former member of Parliament, had gathered outside the local police station afterwards. 22. Mrs P.S., Z.S.’s wife, who was in the car at the time of the incident stated, inter alia: “... Meanwhile, one of the participants went to the restaurant where the Roma were holding a wedding party and most probably told lies [about the incident]. A large group of people came out of the restaurant causing total chaos. When the officers got out of the car, they started throwing stones and other objects. A horse cart was standing nearby and a man gave wooden sticks to the group to use against the police. I would stress that women and children stood in front of the officers with the men behind. There was a pregnant woman among the group of people. My husband took her out of the group so that she would not be injured; he stopped a car which took her to the city hospital ...” 23. The first applicant stated, inter alia: “... While he [the police officer] was taking me to the police van, a scuffle started as many people gathered around. At that moment, the police officers fired six shots in the air to disperse the crowd. I did not see any stones, bottles or pieces of wood being thrown at the van. When the officer released my arm, he launched himself at the group with a truncheon. I escaped and went home ...” 24. Describing the circumstances concerning the fight with Z.S., the fourth applicant stated, inter alia: “... while I was pulling S. aside, Z.S. punched me once in the face ... I think that there were around 40 or 50 people at the scene ...” 25. The fourth applicant stated, inter alia: “... It is not true that he [Z.S.] did not hit anyone. He hit me with his elbow in the chest and punched me in the left eye. I felt intense pain, I found a bottle and struck Z.S. over the head ... I had blood in my eye from Z.S.’s punch and could not see ...” 26. Mrs P.S. identified the first applicant as one of the attackers of her husband, describing him as a person “with long hair and dressed in black”. The first applicant confirmed that he had long hair and had been wearing black clothes. 27. Mr D.K., an eyewitness, stated, inter alia: “... a large group of Roma gathered ... they started to throw stones and bottles at the police officers who had arrived at the scene. I think that one of the officers concerned fired to restore order ...” 28. Mrs N.J., an eyewitness, stated, inter alia: “... Z.S. firstly hit D. [the fourth applicant] in the eye and then D. hit him with a bottle on the back of the head ...” 29. On 9 September 1998 the Ministry filed a criminal complaint against four persons, including the first and fourth applicants, for assault. 30. On 28 April 1999 the public prosecutor lodged an indictment with the court alleging assault (насилство) on Z.S. under Article 386 of the Criminal Code. It was noted in the indictment, inter alia, that around a hundred people had witnessed the incident. 31. On 8 November 1999 the Štip Court of First Instance found the first and fourth applicants guilty of taking part in the fight and sentenced them to six and eight months’ imprisonment respectively. It acquitted a co-defendant, M.J., as he had attempted to separate those involved. The court admitted a considerable amount of evidence including oral evidence from the accused, Z.S. and his wife; evidence from nine eyewitnesses and two doctors concerning Z.S.’s injuries; and a medical certificate of 2 August 1998 on Z.S. The court established that S.U., one of the accused, had left the restaurant at around 11.30 p.m. While under the influence of alcohol he had gone out into the street and stopped the car in which Z.S. and his wife were travelling. S.U. had immediately started to bang on the car. When Z.S. got out, S.U. had attacked him with his fists and kicked him. Shortly afterwards, the first and fourth applicants had joined in, battering Z.S. with their fists and a glass bottle and kicking him all over his body. Z.S. had sustained injuries to his head, cuts to his finger and elbow, bruising to his face and damage to eight teeth. The court rejected the first applicant’s defence that he had not been involved in the quarrel as contrary to the evidence. It found the fourth applicant’s argument that he had been involved in the fight with Z.S. because the latter had hit him in the eye unsubstantiated, as no evidence or medical certificate had been produced in support of that allegation. 32. On 15 January 2000 the first-instance decision became final as no appeal had been lodged within the statutory time-limit. According to the applicants, they had not appealed against the decision because the trial judge’s lack of sympathy with their allegations of ill-treatment and repeated intimidation by the police gave them little hope that they would have any prospect of success on appeal. 33. On 11 August 1998 the applicants filed a criminal complaint (кривична пријава) for torture with the Štip public prosecutor’s office (Основно Јавно Обвинителство Штип) against the Ministry. It was stated in the complaint that after the fight with Z.S. a large group of police officers had arrived and beaten the guests in the restaurant with their truncheons and fists and kicked them. The applicants alleged that some of the guests had been tied up and beaten at the police station the following day. They also complained that the officers concerned had used force to extract confessions from some of them concerning their involvement in the fight with Z.S. They said that they had produced photographs and a medical certificate in support of that allegation. They also invited the public prosecutor to take statements. 34. On 20 August 1998 the applicants provided the public prosecutor with further photographs as evidence of the police abuse. 35. On 2 September 1998 they submitted written statements about the events. 36. The first applicant stated, inter alia: “... [after my release from custody] I wanted to see a doctor, but assumed that, as with the others, I would not be admitted to the hospital. We have all had to put up with the pains ...” 37. After being taken to hospital after the incident, the third applicant stated, inter alia: “... a gynaecologist examined me and sent me home. He told me to visit a doctor on the following Tuesday ...” 38. The fourth applicant stated, inter alia: “... After I was released from custody, I went to the Emergency Unit as I felt unbearable pains all over my body. There, they refused to give me medical care as I had no funds. I was told that (medical services) for injuries sustained in a fight have to be paid for ...” 39. The fifth applicant stated, inter alia: “... [after his release from custody] ... After several hours, I went to the Štip Medical Centre because of the unbearable pains all over my body. They did not want to examine me, nor did they issue a medical certificate as I had no funds to pay [for treatment] ...” 40. On 30 September 1998 the local public prosecutor’s office requested information concerning the incident from the Ministry through the State public prosecutor’s office. On 13 October 1998 the State public prosecutor’s office transmitted this request to the Ministry. On 11 November 1998 the local police submitted to the central police authority all the material relating to the incident. 41. As the local public prosecutor failed to respond to the applicants’ complaint for almost seven months, the applicants’ representative wrote to the Minister of the Interior on 10 March 1999 informing him about the case. 42. As they did not receive a reply from the Ministry or the local public prosecutor, on 26 October 2000 the applicants sent another letter to the latter enquiring about the progress of their case. 43. In a letter dated 28 November 2000 the local public prosecutor replied that on 30 September 1998 his office had requested the Ministry to take steps to identify the offenders, but had not received a reply. 44. The applicants received no information or acknowledgement about the action that had been taken by the competent national prosecuting authorities in relation to their complaint of torture by police officers. 45. The provisions relevant to the present case were described in the Jasar judgment (see Jasar v. the former Yugoslav Republic of Macedonia, cited above, §§ 32-40).