CASE OF NEŠKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano
5. The applicant was born in 1964 and lives in Skopje. 6. As established in the criminal proceedings described below (see paragraphs 8-18 below), on 6 June 2011 at about 12.20 a.m., I.S., a member of the Special Police Forces Unit (Единица за специјални задачи) of the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of the parliamentary elections that coincided with a local cultural event. The killing occurred after M.N. attempted to climb onto a podium in order to approach certain high-ranking politicians. After I.S. warned him to desist, M.N. ran away. I.S. followed him and hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N., despite M.N. shouting for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute (Институт за Судска Медицина), M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was a brain haemorrhage. M.N. died at 12.30 a.m. The courts established (contrary to I.S.’s testimony) that at the relevant time I.S. had not been on duty, but had attended the ceremony in a private capacity. 7. According to the applicant, after Ministry officials had issued a number of conflicting statements regarding M.N.’s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to protest. After the Ministry’s spokesperson announced on 7 June 2011 that a police officer was suspected of having caused M.N.’s death, thousands of people took to the streets of Skopje to protest. Those protests lasted for forty days and turned into a movement called “Stop Police Brutality” (Стоп на полициската бруталност). On 14 June 2011 over six thousand people signed a petition containing several demands, namely that the relevant authorities establish the truth regarding M.N.’s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry’s officials. 8. On 8 June 2011 the public prosecutor asked an investigating judge to open an investigation in respect of I.S. related to the death of M.N. 9. In the course of this investigation, A.N. (M.N.’s brother) requested the Professional Standards Inspectorate (“the PSI”) of the Ministry of the Interior to investigate the circumstances surrounding M.N.’s death and the actions of the police officers concerned alleging that unidentified police officers had committed the crimes of “assisting an offender after the commission of a crime” and “failure to report an offence or perpetrator”, punishable under Articles 364 and 365 of the Criminal Code. 10. On 28 June 2011 the PSI replied as follows: “... a police officer I.S., member of the Special Unit within the Ministry of the Interior, was on duty on 5 June 2011 between 8 a.m. and midnight on the basis of an operative plan prepared before. After the activities in the Special Unit had ended, at 12.10 a.m. [I.S.] left the Unit and went, in plain clothes and in a private car, to the centre of the city, where (a cultural event) and post-election celebrations were taking place. At around 4 a.m. there was a verbal fight at the square ‘Macedonia’ between the suspect I.S. and M.N. After that, M.N. started to run ... after M.N. had fallen to the ground, I.S. punched and kicked him in the head and body. M.N. lost consciousness; I.S. pulled him up and placed him in a sitting position on a nearby bench. He took a bottle of water ... and poured it over [M.N.’s] head in order to resuscitate him. After that, I.S., together with other persons, pulled [M.N.] up and placed him in the greenery of the car park ... where again they were helping him, tried to revive him and in the meantime they informed the emergency unit. Soon after two uniformed police officers, who were employed to secure the celebration, arrived on the scene. I.S. left for an unknown destination ... (Police) inspectors from the police crime department (Одделение за крвни, сексуални и сообраќајни деликти) were informed about the event. After they had arrived on the scene, they informed a public prosecutor and an investigating judge of the incident. They (both) did not arrive on the scene, but delegated to the police investigation department (Одделение за истрага) responsibility for conducting an on-site inspection. The police investigation department conducted the on-site inspection for which report was drawn up and photos were taken. On the basis of an order by the investigating judge M.N.’s corpse was handed over to the Forensic Institute in order to establish the reasons for the death. After the (post mortem) examination had confirmed that M.N.’s death had been violent, the police crime department took measures to establish the facts, including interviewing eyewitnesses. At around 2.30 p.m. on 7 June 2011 the suspect I.S. handed himself in to a police station (in Skopje). After an interview had been held, the investigating judge ordered that an identity parade with eyewitnesses be organised in the presence of the public prosecutor. The police crime department submitted a criminal complaint of murder against I.S... The investigating judge remanded him in custody ... On 9 June 2011 the Ministry established the identity of one of the persons who together with I.S. had moved M.N.’s corpse from the bench into the greenery of the car park for which a Special report was communicated to the public prosecutor. ... On 15 June 2011 the Minister of the Interior terminated I.S.’s employment.” 11. In a letter to A.N. of 15 September 2011 the Ombudsman noted that he had asked the relevant authorities to undertake immediate measures to establish the relevant facts and stated that the incident “was a result and a consequence of irresponsible and unprofessional conduct on the part of the police, which [the Ombudsman] had repeatedly pointed out.” 12. On 3 October 2011 the public prosecutor brought an indictment against I.S., charging him with murder. In the indictment, the prosecutor requested that the trial judge examine I.S., the applicant, twenty-seven witnesses and four experts, and admit considerable material evidence. 13. The trial against I.S. commenced in the Skopje Court of First Instance (“the trial court”). The trial court heard over thirty witnesses, and examined evidence and records of the identity parade; the evidence produced by medical experts; other expert evidence; photographs; and other documentary evidence. 14. Z.J. and P.K., the uniformed police officers who had arrived at the scene after M.N.’s death, stated, in particular, that before the incident, I.S. had introduced himself as a member of the Prime Minister’s security service and had told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon afterwards, they had seen I.S. chasing M.N. and had heard people calling for police assistance. When they had arrived at the scene, they had seen M.N. lying on a bench unconscious. I.S. and others had been trying to resuscitate him with water. I.S. had told them that M.N. had fallen ill (му се слошило) and had asked that they call the emergency services. Soon afterwards, a third person, whom they did not know, had arrived. Z.J. had ordered that M.N.’s corpse be removed in order to enable the ambulance to access the scene more easily. I.S. and a person in plain clothes had pulled M.N. up from the bench and had placed him among nearby greenery. Then I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not realized that M.N. had been beaten, as he had not noticed any visible injuries on him. 15. V.B., employed in a State-owned public utility (electricity) company, who witnessed the incident, confirmed, in particular, that I.S. had pursued M.N. and had hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact. I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had pulled M.N. up, placed him on a bench and tried to resuscitate him. After the police officers had arrived, V.B. and I.S. had pulled M.N. up from the bench and moved him so that the ambulance would have easier access to the scene. He had stayed next to M.N. until the ambulance came. He said that there had been no visible injuries on M.N. 16. That M.N. had no visible injuries immediately after the incident was confirmed by L.K. and V.C. (the doctor and nurse respectively), who arrived at the scene in the ambulance soon after the incident. 17. On 16 January 2012 the trial court delivered a judgment (of forty-three pages) in which it found I.S. guilty of murder and sentenced him to fourteen years’ imprisonment. The court further advised the applicant (who had joined the prosecution as the legal representative of the late M.N.) to pursue a compensation claim by means of a separate civil action for damages. 18. On 9 July 2012, the Skopje Court of Appeal upheld the facts established by the lower court and I.S.’s conviction and sentence. On 7 May 2013 the Supreme Court dismissed a request by I.S. for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) and upheld the lower courts’ judgments. 19. On 12 October 2011, while the criminal investigation concerning I.S. was underway, the applicant submitted a criminal complaint against Z.J., P.K., V.B. and an unidentified police officer. She alleged that Z.J. and P.K. had failed to determine the identity of I.S. and – instead of apprehending him – had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the crime by moving M.N.’s corpse to the nearby greenery and not reporting I.S. as the perpetrator of the offence. The applicant alleged that the unidentified police officer (who was later identified as D.I.) had wrongly told the public prosecutor and an investigating judge that M.N. had died as the result of a drug overdose. As a consequence, neither the prosecutor nor the investigating judge had made an on-site inspection after the incident. The applicant alleged an abuse of office in relation to the alleged crime of “assisting a perpetrator after the commission of a crime” (Article 365 of the Criminal Code). 20. On 29 December 2011 the public prosecutor rejected the applicant’s complaint, finding no grounds to suggest that Z.J., P.K., V.B. and D.I. had committed the alleged crimes. The prosecutor found that, on the basis of all available evidence (including the available material in the case file against I.S.), Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later and had not determined the identity of I.S., who had told them that M.N. was feeling sick. They had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. to the nearby greenery in order to enable the ambulance to access the scene more easily. I.S. had left the scene, and Z.J., P.K. and V.B. had stayed at the scene until the ambulance arrived. A report (no. 025084 of 6 June 2011) by the medical staff who had responded to the emergency call noted that the staff had established M.N.’s death and had noticed no visible signs of violence on him. 21. The prosecutor found that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional error caused by the urgency of the need to save the life of M.N. They had arrived at the scene after the incident and they had not known that a crime had been committed. As regards V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that a criminal offence had been committed. Consequently, it could not be established that he had intentionally assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his being placed amongst the nearby greenery had been aimed at facilitating the access of the ambulance. The police officers had called the emergency services and D.I. had informed the police control centre, as suggested by the medical staff, that the cause of death could not be established (незнаена смрт), but that it was possible that M.N. had been a drug addict. Given the circumstances, the prosecutor established that there was no evidence that the accused officers had taken any actions with the intention of obstructing the investigation or preventing the identity of the perpetrator from being discovered, or that they had concealed any evidence. On the contrary, they had taken all necessary measures to facilitate the determination of the perpetrator’s identity. The incident had been reported to the local police station and the police control centre. The inspection unit of the Ministry of the Interior (увидна група) had arrived at the scene. 22. On 12 March 2012 the higher public prosecutor’s office found that this decision had been lawful and correct and based on all available material. 23. In the meantime, on 18 January 2012, the applicant took over the prosecution as a subsidiary prosecutor and lodged an indictment against Z.J., P.K., V.B. and D.I. before the trial court on the same counts (abuse of office, assisting a perpetrator after the commission of a crime and failure to report a crime or the offender). 24. At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation of 20 April 2012 by the president of an adjudicating panel of the trial court that the applicant’s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant’s complaint, finding no grounds to depart from the public prosecutor’s decision of 29 December 2011. 25. The applicant appealed against that decision, arguing that no procedural steps or hearing had taken place before the panel. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision. The applicant was served with this decision on 20 March 2013. 26. On 15 June 2015 the applicant submitted in evidence a CD-ROM with audio material and a transcript (in English) of taped telephone conversations which involved, allegedly, high-ranking public officials. The material concerned conversations regarding the possible direct perpetrator, which apparently took place soon after the incident. As stated by the applicant, on 5 May 2015 the audio material was revealed in public by the political opposition in the respondent State and was also made available on-line.