CASE OF JASAR v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Art. 3 (alleged ill-treatment);Violation de l'Art. 3 (effective investigation into these allegations);Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant was born in 1965 and lives in Štip, in the former Yugoslav Republic of Macedonia. 9. On 16 April 1998, at around 9 p.m., the applicant and his friend F.D., both citizens of the former Yugoslav Republic of Macedonia of Roma ethnic origin, were having a drink in a downtown bar in Štip. On the other side of the bar, two men were gambling. The man who lost pulled out a gun, fired several shots into the air and one into the ground, and asked for his money back. All those in the bar, including the applicant and his friend, tried to leave, but were ultimately unable to do so because of the crowd that had already blocked the exit. 10. In the meantime, five police officers arrived at the scene of the incident and turned to the applicant and his friend. One of the police officers caught the applicant by his hair and pushed him against the police car, while another officer grabbed his friend's arm and twisted it behind his back. Shortly afterwards, the police took them to the local police station, where they were locked up in two separate cells. 11. The applicant maintains that around midnight one of the police officers concerned came to the cell where he was being held and told him to bend over. The applicant alleges that the police officer kicked him in his head, which caused bleeding from his mouth. As he fell down on the floor, the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon. The applicant further maintains that another police officer, who was allegedly beating his friend in the other cell, came to his cell later and continued to batter him until 5 a.m. They were then taken to an office, where they were questioned about the incident. After drawing up a report, the police released the applicant and his friend at around 11 a.m. the next day. 12. Following his release, the applicant went to the Emergency Aid Unit at Štip Hospital and asked for medical assistance. A medical certificate issued on 17 April 1998 by the doctor who had examined him indicated that the applicant had sustained several bodily injuries which were described as slight. In addition, the certificate stated that the applicant had declared that he had been beaten at the police station with a truncheon and kicked all over his body. The medical certificate did not specify the possible origin of the injuries, their timing or the way in which they had been inflicted. 13. The applicant submitted an excerpt from a newspaper together with his statement concerning the incident in which he had made no allegations of being beaten at the scene in the bar. A photograph of him having a swollen right eye also appeared in the newspaper. 14. The applicant and his friend have never been charged with any offence in relation to the incident at issue. 15. On 16 April 1998, between 9 and 10 p.m., the applicant and F.D. arrived at the café bar Lotus. They joined a group watching people gambling with dice. At around 2 a.m. on 17 April one of the losing gamblers claimed that the dice had been fixed and demanded his money back. An argument started in which the applicant and F.D. participated. When a certain J.N. took out a pistol and fired, F.D. tackled him and the gun fell on the floor. At about 2.30 a.m. the police came to the scene after the shooting incident had been reported to them. Meanwhile, there was a certain disruption inside the bar, after which some people went outside. The police's inspection of the scene lasted until 4.30 a.m. 16. The police sought to take M.S., an individual reported to them, into custody. The applicant and F.D., who had taken the side of M.S. in the dispute, obstructed the police's efforts, allowing M.S. to escape. F.D. also assaulted another person on the scene. The police then decided to take all those present, including the applicant, to the police station. 17. At 5 a.m. the applicant and F.D. were interviewed by the police. They were released at 7.30 a.m. No force was used against the applicant during the questioning, nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained. No charges were subsequently brought against him. 18. On 25 May 1998 the applicant, through his legal representative, filed a criminal complaint (кривична пријава) with the Štip Basic Public Prosecutor's Office (Основно Јавно Обвинителство Штип) against an unidentified police officer under section 143 of the Criminal Code (see “Relevant domestic law”). In the complaint, the applicant set out a factual account of the incident and alleged that the officer concerned had ill-treated him while he was in police custody. He requested the public prosecutor's office to initiate proceedings as provided for by law. The medical certificate of 17 April 1998 was produced in support of his complaint. 19. On 28 May 1999 the applicant's legal representative wrote a letter to the Štip public prosecutor, stressing that his criminal complaint had been filed more than a year previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor's office to identify the offenders and to initiate a formal investigation. 20. As there was again no reply, on 25 October 1999 the applicant's lawyer sent another letter to the public prosecutor, requesting information about any action undertaken concerning the applicant's case. He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned, which had been determined in the course of the civil proceedings. 21. In a letter dated 11 November 1999 the Štip public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of the Interior (“the Ministry”). However, to date his office had received no information from the Ministry. 22. As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities, the proceedings concerning his criminal complaint are still pending. 23. On 25 May 1998 the applicant submitted a compensation claim against the respondent State and the Ministry for the non-pecuniary damage he had suffered as a result of the violence to which he had been subjected while in police custody. He made the same statements as in the criminal complaint, namely that after the police officers had arrived at the bar, one of them had grabbed him by his hair and pushed him against the police car; that at the police station he had been told to do push-ups and had been subsequently kicked in the head, which had caused his mouth to bleed; and that he had been punched and beaten with a truncheon all over his body. 24. The Government stated that in December 1998, following the bringing of the civil action, the Solicitor General's Office had requested information from the Ministry concerning the incident. In January 1999 the Štip police submitted a report based on the official notes and records, stressing that the police had not used force at the station and had intervened and placed the applicant in the police van when he and his friend had resisted them at the scene and his friend had attacked another person. They added that no force had been used against the applicant, nor had he submitted any complaint concerning the injuries allegedly sustained during the police intervention at the bar. Among the documents accompanying this report, the Ministry provided the official police record of the statements given by the applicant while being questioned. No complaints of alleged abuse or injuries had been noted in that record. 25. On 22 March 1999 the Štip Court of First Instance dismissed the applicant's claims as ill-founded. The court heard evidence from F.D. and several police officers who had participated in the police raid on the night of the incident. It also heard evidence from a specialist doctor, who provided his expert opinion about the applicant's injuries indicated in the medical certificate. As stated by him, the following injuries had been observed: a blow on the back of the head; contusion of the left eye; swollen and bruised left cheek; bruise on the lower part of the chest and punch on the right hand. He stated that the injuries had been probably inflicted by a blunt object such as a hand or a tool and that no special treatment had been necessary for the applicant's recovery. The court also admitted as evidence the medical certificate of 17 April 1998 and the photographs showing the applicant's condition after the incident. 26. The court found it undisputed that the applicant had been injured, but stated that there was no evidence that the injuries had been inflicted as a result of police brutality. It established that the applicant had sustained certain injuries, but concluded that it could not be inferred under what circumstances they had been inflicted, or by whom or when. On the basis of the police officers' statements, the court further established that the applicant had sustained some injuries to his head and eye before he had been taken to the police station. It found that the injuries had either been sustained during the fight in the bar (while the applicant was assisting the escape of a person who had fired a gun and caused a disturbance) or had resulted from the legitimate action of police officers in trying to restrain the applicant who had resisted arrest. 's argument that he had not been able to undergo a medical examination immediately after being released from custody owing to his lack of financial means, since this was contradicted by the medical certificate dated 17 April 1998. 27. On 29 April 1999 the applicant appealed. 28. On 5 October 1999 the Štip Court of Appeal dismissed the applicant's appeal as ill-founded. It stated that the lower court had indisputably found that the applicant had sustained certain injuries before he had been taken into police custody and that the police officers had not inflicted them. It concluded that the lower court had reasonably found that the State could not be held liable and had dismissed the applicant's claim for damages. 29. On 4 February 2000 the applicant requested the public prosecutor to lodge with the Supreme Court an application for the protection of legality (барање за заштита на законитоста). Referring to the outcome of the civil proceedings, he did not provide the public prosecutor with the identity of the police officers who had allegedly beaten him and who had given evidence in the course of those proceedings. 30. On 1 March 2000 the public prosecutor rejected the applicant's request. 31. Section 143 of the Criminal Code (Кривичен законик) provides that a person who, in the performance of his duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years. 32. The relevant provisions of the Criminal Proceedings Act (“the Act”) (Закон за кривичната постапка) may be summarised as follows: 33. Section 16 provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act. 34. Section 17 sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality). 35. In accordance with section 42, in discharging this statutory right and duty, the public prosecutor is empowered to take measures to detect crimes, to identify their perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions. 36. Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that that party may conduct the prosecution himself. 37. Section 144(1) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution; that the statute of limitations has expired; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution; or that there is no reasonable suspicion that the person in question committed the offence. The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within eight days (section 56) and, if the complaint was filed by the Ministry, he shall notify the latter accordingly. 38. Section 144(2) provides that if the public prosecutor is unable to establish, from the criminal complaint, whether or not the allegations set out in the complaint are credible, or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation, or if he has merely learned of rumours that a crime has been committed, particularly where the perpetrator is unknown, he shall, if he cannot do this alone or through other authorities, request the Ministry to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor may at any time require the Ministry to inform him about the measures taken. 39. Section 148 provides, inter alia 40. Section 150 provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence.