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Annual report for year 2005

C O N T E N T S

Introductory explanation

I. ECONOMIC AND SOCIAL RIGHTS

1. Labor-related rights

2. Poverty

II. FUNCTIONING OF THE DEMOCRATIC STATE AND RULE OF LAW

1. Influence by political parties

2. Degradation of the legislative authorities and of the citizen participation in the decision-making

3. Devaluation of the rule of law principle

4. Limitations of the voting right and the right to direct decision making by citizens

5. Legislative amendments and initiatives for passing laws

6. On constitutional amendments and human rights protection

7. The Budget of the Republic of Macedonia and the human rights

III. INSTITUTIONS AND MECHANISMS FOR PROTECTION OF HUMAN RIGHTS AND FREEDOMS

1. Situation in prisons, police, police overstepping of authorities, torture, ill treatment

2. Regular Courts, the Constitutional Court, and the Ombudsperson

IV. VIOLATIONS OF INDIVIDUAL RIGHTS

1. Freedom of expression

2. Refugees and internally displaced persons

3. Freedom of belief

4. Rights of national and ethnic minorities

5. Trafficking in human beings and human rights of victims

6. Human rights of drug users

V. ENDNOTES

1. Overview of submissions

2. Projects 2005

3. Photo gallery
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Introductory explanation:

In the framework of the projects: “Legal Assistance” (supported by Swedish Helsinki Committee) and “Monitoring of the Human Rights Situation in the Republic of Macedonia” (supported by Norwegian Helsinki Committee) , a certain amount of data and knowledge has accumulated in the Helsinki Committee, which were regularly presented in the Helsinki Committee’s monthly reports, press releases and specific thematic inputs. A total of 784 submissionsi1  were filed to the Committee during 2005. In relation to these applications: the Committee has instituted procedures before the competent authorities; data and information have been requested; the applicants have been offered legal assistance or they have been referred to the authorities which could provide them with such assistance.

The Annual Report is a sublimate of the knowledge obtained from specific cases and of the monthly reports and analyses developed in relation with certain situations associated with the promotion and protection of human rights and freedoms, as well as an attempt to draw general conclusions on the basis of the information and data available. The Annual Report also includes knowledge, data and information obtained from other projects on which the Helsinki Committee worked during 2005 (autonomously or in cooperation with other non-governmental organizations and academic institutions).ii*

In its work, the Helsinki Committee starts from the assumption that human rights and freedoms are constitutional category, and that the State is their basic promoter and guarantor. The basic task of the State in this domain (which arises from the Constitution and from the accepted and ratified international documents) is to create conditions for exercise of human rights and freedoms, to avoid violating human rights and freedoms through the action(s) of any of its authorities, structures, individual civil servant or elected official, and if a mistake resulting in a human right violation occurs – to note and rectify that mistake and to annul or mitigate its consequences to the largest extent possible, i.e. to punish such violations and thus protect the human rights and freedoms.

The mandate of the Helsinki Committee includes observation and evaluation of the State’s accomplishment of its duties with regard to human rights and freedoms, as well as warning the State against the omissions, mistakes or direct violations of the rights and freedoms committed by its authorities. The Helsinki Committee is carrying out these functions with the view of further development of the democratic society and the rule of law - as basic preconditions for the exercise and protection of the basic human rights and freedoms.

The general conclusion that can be drawn from the data available to the Helsinki Committee is that in 2005, no significant steps forward have been made in the Republic of Macedonia in the direction of a greater promotion and protection of the human rights and freedoms. The rule of law was not transformed into a principle which determines the work of the legislative, executive and judicial authorities and the life in the country was under the absolute influence of political parties, currently in power. Despite the formally established institutions for control of the authorities, the authorities remain outside any control and the only sanction of unconscientious work are elections. In conditions of complete degradation of the legal system, elections only result in change of the political leading group, and not in change the method of work.

In 2005 the State did not create condition for adequate exercise and protection of the human rights and freedoms. The declared development of the state at no moment was based on the concept of human rights. Thus, the bad economic and social position of citizens greatly decreased the possibility for genuine exercise of rights and freedoms, and enabled the persistence of the closed circle of party influence on every segment of people’s lives. As a result, the interests, needs and requests of the individual have at no moment become a priority and a main concern of the actions of the State.

The stagnation in this area which continued in the past year as well is worrying because it contributes to the widening of the gap between Macedonia and the developed Western democratic states as well as the states that are currently developing their democratic systems, which, from a comparative point of view, makes Macedonia regressing in the implementation of the international standards in the area of human rights and freedoms.

This statement is only seemingly in contradiction of the Macedonia’s obtained status of EU membership candidate country. Namely, the candidate status must be understood in its political dimension (boosting the internal political stability and the stability in the closer region), and should by no means be confused with the achieved degree of economic development or with the implementation of the European standards in the area of democracy, rule of law and human rights and freedoms. This is clearly visible both from the analytical report about the situation in the Republic of Macedonia produced by the European Union, and from the recommendations given in relation to the initiation of the process of acquiring EU member-state status. These recommendations point to the volume and the nature of the changes that need to be carried out, which implies, inter alia, sharpening of the criteria of all those organizations (including the Helsinki Committee) and institutions with a controlling and warning function.

I. ECONOMIC AND SOCIAL RIGHTS

In 2005, enormous number of citizens of the Republic of Macedonia could not exercise their basic economic and social rights, and large number of citizens were brought to such poverty level that jeopardizes both the dignity inalienable to the human personality and the basic freedom from fear and poverty as a basis for the enjoyment and the exercise of the civil and political rights and freedoms.

With a 38% unemployment rate, with 30% of the households (55% of the population) living below the poverty threshold, with more than 50.000 workers for whom no contributions for pension and health insurance are paid, with a huge percentage of gray economy that is estimated at 45% of the Gross Domestic Product (GDP) of Macedonia, with an average salary nationwide amounting to 190 EUR (minimal salary is 30 EUR), with a consumption basket (foods and drinks) for a 4-member family of 150 EUR, and maximum social assistance for such a family of 50 EUR, and with a mountain of workers living in a situation of awaiting the transition processes (without regular revenues), the Republic of Macedonia is firmly holding one of the last places in Europe in terms of the exercise and protection of the social and economic rights2 .

Key human right words in the field of social and economic rights include: appropriate living standard; productivity in agriculture; children’s health; economic, social and cultural development; appropriate nutrition; physical and mental health; right to education; right to work; labor-related rights; land rights. These are also the key words of the international documents in this area. However, despite the obligations undertaken by means of ratification of these documents (including the European Social Charter ratified at the end of 2004), the State in 2005 made no step whatsoever in the direction of setting any of the mentioned categories at level of priority or at level of an issue of special interest.

Contrary to this, the restrictive tendency has continued in the area of exercise and protection of the economic and social rights. The restrictions and limitations promoted with every new amendment of the labor legislation and of the laws in the area of social and health protection are in contradiction of the values defined in the Preamble to and in the provisions of the International Covenant on Economic, Social and Cultural Rights, which oppose any form of reduction, restriction or denial of the rights associated with the employment status. In this sense, we particularly draw the attention to Article 5, Paragraph 2 of the Covenant which reads: "No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent".

In addition, contrary to the International Covenant on Economic, Social and Cultural Rights, and contrary to the European Social Charter, the State has at no moment set the achievement and the exercise of the rights proclaimed through these two international documents as its strategic goal and main priority on which most of its activities would be focused (steady economic, social and cultural development and full and productive employment; remuneration that provides for a decent living; safe and healthy working conditions; free association in trade unions; right to strike; social security; right to best possible physical and mental health; right to education; right to special protection of children and adolescents; special protection of female workers; social and health assistance; professional and social rehabilitation). In this context, we indicate that the Republic of

2  The presented data were obtained from: the periodic Early Warning Reports issued by the UNDP; the publications and the announcements in the Official Gazette of the Republic of Macedonia by the Statistical Office of the Republic of Macedonia and the World Bank Institute.

Macedonia has not even signed the Revised European Social Charter (vis-a-vis the confusions that occurred with regard to the ratification of the previous charter).

It is provided in all new laws that the Minister or the Government will regulate by means of a special act (meaning: not by means of the law) the conditions for exercising a certain right, the criteria to be fulfilled, the manner in which it will be done, as well as the composition and the work of the expert commissions deciding about the exercise of the rights. This largely creates legal uncertainty, excessive political influence and domination of the political volunteerism in the exercise of the rights guaranteed by the law.

1. Labor-related rights

In the past years, with every amendment to the Labor Relations Act, the Law on Employment and Insurance in Case of Unemployment, the Law on Pension and Disability Insurance, the Law on Social Protection and the Law on Health Insurance, the Republic of Macedonia has violated Article 5 of the International Covenant on Economic, Social and Cultural Rights thus diminishing the rights of the people and the protection mechanisms, and restricting the actions of the institutions intended for the protection of these rights. Only as an example, the right to work and the existence of appropriate measures to safeguard this right, guaranteed in Article 6 of the Covenant, have been exposed to constant restrictions and endangered by each and every amendment to the Labor Relations Act providing for greater freedom for the employer with regard to the unilateral termination of employment. This is particularly obvious in the case of the amended provisions relative to the conditions and procedures for termination of employment, i.e. giving notice of dismissal.

The process of restriction upon the rights of workers (initiated with the amendments to the laws since 1993) obtains a logical finish in the following statement of the Minister of Labor and Social Policy: “The main obstacles to the development of our country and to the foreign investments include the excessively big rights of the workers, the excessively large number of falsely unemployed individuals that draw enormous benefits from the State (in terms of pecuniary assistance during unemployment or basic health insurance), and the pregnant women who are a burden on the Health Insurance Fund”.

The following are not mentioned in the latest amendments to the Labor Relations Act (passed following the ratification of the European Social Charter): 

- The right to work; 

- The right to fair remuneration; 

- The right to vocational education; 

- The right to vocational education for the young people (below 18) that would be considered as part of the working day.

Contrary to this, the following provisions have been reinforced: 

- Provisions rejecting the special procedure for giving notice of dismissal to individuals with over 25 years of length of service or at least 20 years of work for the same employer; 

- The number of reasons for which notice of dismissal can be given without a notice period has been extended (and room has been left for further extension); 

- No restrictions whatsoever have been provided with regard to the employer deciding about termination of the employment due to business reasons; 

- The period in which the employer should notify the worker of employment termination due to business reasons has been shortened; 

- The obligation lying with the employer to mitigate the negative consequences of the termination of employment has been deleted; 

- There is no obligation with the employer to specify the structure of workers who will receive a notice of dismissal due to business reasons on the basis of previous criteria; 

- There is no longer duty to provide assistance for a new employment – this is replaced by possibility to provide such assistance; 

- The employer has the right to dismiss a female worker that has fulfilled the conditions for an old-age retirement (which, according to the Constitutional Court, should be a privilege and a right of the woman for the purpose of protecting gender equality).

With the latest amendments to the Labor Relations Act, there is actually no obligation for the employer to explain the notices of dismissal given due to structural, economic, organizational and technological changes (notice due to business reasons). He simply proclaims the changes and dismisses the workers that he selects on his own. After one year has passed since the dismissal, the employer has no longer an obligation to hire back the dismissed workers even in cases when the same positions have become vacant. The possibility of abusing notices of dismissal in this manner becomes enormous. This is of particular concern if account is taken of the fact that the changes themselves are subject to no/nobody’s serious review and establishment of their factual existence (in other words, a simple change in the title of a certain position may be declared a structural change and the worker may receive notice of dismissal i.e. be replaced by another worker); for instance: employees in the national railroad company “Macedonians Railroads” and in “Macedonian bank”. This is particularly dangerous in the case of the state administration because it enables unhindered replacement of the staff on the grounds of political party affiliation. Article 13 of the Convention on Termination of Employment No. 158 of the International Labor Organization (ratified by the Republic of Macedonia) requires explanation of the reasons that are taken into account when dismissing workers in case of economic, technological, structural and related changes in the enterprises. In favor of this Convention goes the Recommendation No. 166 regarding the cases of termination of employment on the initiative of the employer, which sets forth in detail the principles on the basis of which the dismissal should be carried out. This includes: tendency towards rarer or decreased number of so-called collective dismissals; explanation of the reasons; availability of legal remedies for protection of the rights; cooperation and consultations with the trade unions for the purpose of mitigating the damages that such dismissals are likely to cause; training for another job and retraining of the workers in order for them to be able to respond to the resulting changes; counseling the workers as to how to seek solutions to the problems that are likely to occur in cases of such dismissals etc.

The Constitutional Court has this time as well taken the side of the Legislator (employer), rather than the side of protecting the human rights and freedoms as well as the basic principles and values declared in the national legislation and in the international documents.

The effects of such laws and such work of the courts include: increasing number of cases of collective dismissals without explaining the real reasons for the dismissal; the right to strike seriously jeopardized (some leaders in certain strikes, like the one in “Macedonian Railways”, were dismissed soon after the strike); open non-observance of the Labor Relations Act (even in cases of very clear infringements such as dismissal during maternity leave, while serving in the Army etc.).

In the past year, the Minister of Labor and Social Policy did not come out in public with any analysis of the working conditions, nor did he mention the problems of non-observance of the measures for protection in the workplace (notwithstanding the cases in which workers died in the workplace), the problems of overtime (non-observance of the legal norms for maximum number of working hours and rest), the self-will of the employers with regard to the amount and the actual payment of salaries and with regard to dismissals, as well as the absence of criteria for the ranking of candidates for employment in the state administration (the Minister was helped a lot in this by the Decision of the Constitutional Court which stipulates that such criteria do not need to exist and to be presented). The Minister also failed to come up in public with a special analysis of the situation in the textile industry where primarily women are employed (which is quite surprising given that a Department for Gender Equality has been functioning under this Ministry since 1997). The amendments of the legislation are continuing the trend of restriction of the protection of workers, and enlarging the room for self-willed and uncontrolled behavior of the employers.

The exercise of the labor-related rights in 2005 was endangered also because of the inappropriate position and behavior of the Federation of Trade Unions of the Republic of Macedonia (one of the most massive organizations with a mandate to protect notably the rights of the workers). Its inert leadership and their open ties with the governing structures (which were most openly manifested by the receipt of a large financial assistance from the State) have transformed the Federation of Trade Unions in a tool of certain political parties rather than a structure that will be representing the interests of the workers.

2. Poverty

Poverty in the Republic of Macedonia represents a continuously present basis for global violation of the human rights and freedoms, and makes it impossible for the latter to be exercised by a large portion of the population. The fight against poverty was given priority at no moment and in no segment of the exercising of power, and one did not go beyond the level of declared concern (the absence of real implementing activities in connection with the strategy for fighting poverty speaks in favor of this). We turned the attention to this problem as early as during the adoption of the 2005 Budget (that is to say in our 2004 reports), and we listed as examples several Budget items and specific allocations. Given the importance that we think the Budget has not only in the fight against poverty but also in the creation of overall conditions for the exercise of human rights and freedoms, we placed the analysis of the Budget in a special section within this report (in the section on the functioning of the democratic state and the rule of law).

In 2005, the social allowances and benefits enjoyed by the people with disabilities were reduced in percentage terms, so was the child allowance, and once again the list of drugs available on prescription (co-payment) was shortened. Due to problems in the Health Insurance Fund, cancer patients (especially children) were left on several occasions without appropriate medical therapy (and their parents many of whom in an extremely difficult social situation had to buy them through private channels and out of pocket). The conditions for treatment are already falling below the minimal standards (down to the level of direct threat to the life of patients). The rights of the patients are neither a priority for the actions of the relevant state authorities, nor part of the development strategies for 2006. The Law on Health Insurance is following this restrictive trend with the amendments according to which: no health insurance may be used before the expiration of 6 months since the start of employment (the same applies to maternity leave); the amount of the compensation for salary in case of disease or maternity leave is limited, but this is not done with the principal on the basis of which the contribution for health insurance is calculated.

With the amendments of the Law on Employment and Insurance in Case of Unemployment, the period for payment of a pecuniary allowance in case of unemployment has been shortened. The pecuniary allowance based on the Social Protection Law does not exceed 50 EUR (which is one third of the average basket only for foods and drinks for a four member family), and with the latest amendments (contrary to the system of rights of the individual citizen, which imply obligations vested in the State, guaranteed by international documents), system of duties of the family is established (i.e. the role of the anachronistic extended family community is strengthened, which continues to exist in this region only because of the economic incapacity of the individual citizen to leave the original family and live an independent life). According to the new article 6-a established in the Social Protection Law (adopted on 22 July 2005): “Everyone is obliged to see to the satisfaction of his living needs and of the needs of the persons he is obliged to support by law. Everyone is obliged to contribute with his revenues to preventing, removing or mitigating the social risks that he and the members of his family that he is obliged to support are exposed to. In the meaning of this law, family is considered a single person or a union of a man and a woman, of parents and children and other relatives living with them and whom they are obliged to support according to the Family Law”. According to Article 7 of the European Social Charter, the contracting parties have set as goal of the policy they will be pursuing with all available resources the creation of conditions for real implementation of the following rights and principles (inter alia): "…13. Each person without enough funds for living has the right to social and health assistance; 14. Each person has the right to use the services of the social welfare facilities…" The introduction of such an article shows a great ignorance of the essence of the human rights concept, especially of the individual dimension of this concept (the individual citizen is the holder of the rights, and the State should provide for existence and exercise of the rights by the individual citizen, who may associate in special interest groups of different types).

The following groups can be identified as particularly affected by the poor economic situation: the elderly (who can’t provide for decent living with the pensions they are receiving, while those in homes for elderly are living in conditions that are below the standards of the worst prisons in the country); many children are living and growing up in extremely inappropriate conditions (of particular concern is the large number of elementary schools, where children aged 6-14 are studying, which are not fulfilling even the minimum standards for life in prison); sick people not receiving even elementary care (there is an increased number of patients dying because of inappropriate care, lack of care or use of inappropriate medicines), and lives of patients were endangered on several occasions because of the direct impact of the ruined premises in which they were staying (fall of the roof in the department for dialysis, penetration of moisture in the child clinic in Skopje etc.). In spite of the alarming situation, none of the competent authorities addressed the public with an explanation of the activities undertaken to overcome such situations.

The further impoverishment of the population impedes the exercising of civil and political rights, and the citizen who is not able to provide for his/her minimal living and for the subsistence of his/her family members is neither free nor independent, and can hardly fight for his/her rights and freedoms.

II. FUNCTIONING OF THE DEMOCRATIC STATE AND RULE OF LAW

In 2005, no visible progress was achieved in the development of democracy and rule of law as basic preconditions for the exercise and protection of the human rights and freedoms. None of the democratic institutions began to carry out its function in a manner typical to a democratic state in which the law is ruling. In 2005 as well as before, the process of shift of the power from the legal and legitimate ruling structures to the leaderships of the political parties did not stop, and the political agreement continued to subsist as source of the law (the agreements between the political parties continued to replace the debates in the Parliament and in the Government). Main characteristics of the politico-legal life in the Republic of Macedonia have become: 

- Stagnation in development and continued reproduction of non-democracy and of absence of rule of law; 

- Absence of basic awareness and perception of the conflict that exists between concrete legal provisions that are accepted and activities of the state authorities on one hand, and the standards of the international documents in the area of human rights and freedoms that the Republic of Macedonia has ratified or acceded to on the other hand; 

- Situation where norms and actions that are absolutely contrary to the concept of human rights and freedoms are brought under the category entitled as “human rights and freedoms” (an example of this is the already mentioned Article 6-а of the Law on Social Protection).

It is in this light that we understand the attempt of the authorities to present as indicator of success, development and credit for the reforms made the politically justified (hardly qualifying) judgment made by the European Union about the process of approximation of the Republic of Macedonia to the standards of the Union. Here once again we are drawing the attention to the report and recommendations given by the European Union, which relate to the development of democracy, rule of law and protection of the human rights and freedoms.

II.1. Influence by political parties

The development of democracy and democratic institutions continues to be restricted due to the domination of the political party modus. Namely, in spite of the presence of several political parties in the political arena, they continued throughout 2005 to behave and act in a way that is typical to the one-party system. In practice, this continues to be manifested through the concentration of the overall power in the hands of the political party leaders (all activities to be taken by the State, officials’ appointments, strategies, laws etc. continue to be decided/agreed upon between the political party leaders, whereas the Parliament and the Government are just used as bodies giving legitimacy to these agreements). Characteristic of 2005 was that this way of doing things was no longer hidden, but most openly promoted even by Members of Parliament (through statements such as: “we will vote tomorrow after the presidents of the parties have agreed on how we should vote”). This is how all procedures, rules and criteria are denied, with the will of the political party remaining as the single valid criterion.

Direct result of the domination of the political party modus is the already mentioned lack of response by the state institutions in situations of large deformations of the system (and violations of the human rights and freedoms), as well as the lack of accountability for the omissions or violations made. This way of behavior has a negative impact especially on the structuring of the state apparatus and institutions that are supposed to protect the human rights and freedoms.

II.2. Degradation of the legislative power and participation of the citizens in decision-making

In conditions of total shaping of the overall living by the political parties, it becomes irrelevant how many and what kind of laws are enacted, since these laws, when coming in conflict with the will of the party, are either not applied at all or are adjusted to a specific need in an ad hoc manner. This was for example the case with the Law on Pension and Disability Insurance, which was amended on 26 July 2005 by way of adding a new article according to which: “An insured person elected through direct suffrage as Member of Parliament, as well as the members of his/her family, may acquire the right to pension after his/her term of office has ended, according to conditions, manner and procedure stipulated in a special law”. On the basis of this amendment, on 3 October 2005, the Members of Parliament passed the Law on Members of Parliament which stipulates, inter alia: “Member of Parliament whose term of office has ended may acquire the right to premature old age pension if he/she has fulfilled the requirements of 25 years of working period and 55 years of age (for men), i.e. 53 years of age (for women)”, which puts the Members of Parliament in a privileged position in terms of status compared with all other citizens of the Republic of Macedonia. This discrimination has no justification in the existence of any objectively justified and legitimate goal stated in the Constitution, laws or international agreements. The absence of any justification was confirmed by the Minister of Labor and Social Policy, Mr. Stevce Jakimovski, who, on a different occasion, said the following in his statement for the media concerning the general pension law: “The Law on Pension and Disability Insurance can’t be a wish list and it must apply to all citizens. It’s impossible to make a law on the basis of the opinions of certain interest groups no matter how strong their lobby is in the Government or in the Parliament. These are very important laws, and in this way one can just destroy the legal system”.

Here are few examples of different interpretation and unequal application of laws for various groups of citizens from the Parliament's practice:

• The regular payment of salaries and the retention of the working privileges of the Member of Parliament Ljube Boshkovski (who was arrested on a very serious indictment for which a long-term prison sentence is foreseen, and who obviously can not actively participate in the work of the Parliament)

• The regular payment of salaries and the retention of the working privileges of the Member of Parliament Pece Naumovski (who has not attended the sessions of the Parliament since long time ago and has completed the procedure of changing or acquiring another citizenship)

• The regular payment of salaries and the retention of the working privileges of the Members of Parliament from the DPA (who do not attend the sessions of the Parliament because of their revolt, but they seem not to be revolted over the benefits provided by the Parliament)

• Regular remuneration and keeping of the working privileges by the MP Mr. Ali AHMETI who, according to the obtained data, is one of the rarest visitors of the Parliament.

Similar example is with the Law on Referendum, which was amended in a manner that guarantees prevention of citizens’ influence in cases that are contrary to the will of the ruling parties. According to the new Law on Referendum, referendum may not be issued notice of at all for issues relative to culture, use of languages, education, personal documents, use of symbols, local government and any other area that the political parties will reach an agreement on (which happens very easily).

II.3. Devaluation of the rule of law principle

A special form of devaluation of the state governed by the rule of law is the implementation of the Framework Agreement. After four years of the signing of the Framework Agreement (which inter alia was to promote the rule of law, as a guarantee for the protection of the rights of persons belonging to the minority ethnic communities), for the authorities in Macedonia, this Agreement creates legal dilemmas, generating a legal confusion, as well.

- At the Government website (http://www.vlada.mk) and at the website of the Ministry of Defense (http://morm.gov.mk) the Framework Agreement is placed under Chapter X of the Constitution of the Republic of Macedonia;

- At the website of the Office of the President of the Republic of Macedonia (www.president.gov.mk), the Framework Agreement (in the Macedonian language) is to be found in the section “documents- Constitution of the Republic of Macedonia”;

- At the website of the Ministry of the Interior, the Agreement can be found in the Albanian language as well, but under the section “laws”- “civil rights” ( http://www.mvr.gov.mk) etc.

Only the Sector for European Integration (http://www.sei.gov.mk) identifies the Agreement as “strategic document”.

At the time of signing the Agreement, one of the advisors to the then President (professor at the Faculty of Law) presented to the public the thesis (which he has recently repeated) that the Ohrid Agreement is a “political-legal document”, which “establishes certain legal solutions”, i.e. that “it is an internal legal act.”

The Helsinki Committee considers that the inappropriate treatment of the Ohrid Agreement as a legal act is an attack on the rule of law and state governed by the rule of law. This is legally unacceptable, since only the Parliament has the competence of adopting and amending the Constitution and laws. The Framework Agreement has not been adopted by the Parliament. Regardless of whether and to what extent the Framework Agreement was “the inspiration” for the 2001 constitutional amendments, only such amended constitutional provisions are the source of law. The Framework Agreement is not a law or a regulation.

In the Republic of Macedonia, laws must be in accordance with the Constitution and all other regulations must be in compliance with the Constitution and the laws. Laws and other regulations are published in the Official Gazette of the Republic of Macedonia, within seven days from the day of their adoption at the latest. The Framework Agreement has not been published in the Official Gazette of the Republic of Macedonia. This is owed to the fact that the Parliament has not adopted the Framework Agreement, for example, in a legislative procedure. The Framework Agreement is not a legal act at all.

If the Framework Agreement were truly an “internal legal act” and had legal effect, then citizens of the Republic of Macedonia would have to have the opportunity to acquire legal protection either before regular courts, or before the Constitutional Court. However, according to the Constitutional Court the Framework Agreement ”is not a legal act that can be subject of constitutional court assessment”. Hence, any treatment of the Ohrid Agreement as a legal act implies denial of the basic constitutional rule and elementary human right – to dispute the Agreement (i.e. the right to appeal, the right to a fair and impartial court procedure). Therefore, the Helsinki Committee again underlines that it is necessary to differentiate between a theoretical-political or party debate as to whether certain decisions are or are not in accordance with the Framework Agreement, on one hand and on the other hand critical and argumented legal debate, as to whether certain solutions are or are not in accordance with the Constitution and laws. In this context, the Helsinki Committee asks the competent state bodies to act within their constitutional and legal competences, as different from political party bodies, which in their campaign can call upon political agreements, but without misleading the citizens that it is a matter of issues that make an integral part of the legal order, or even more drastically that they have a legal force.

Here are also (as in the case of the Parliament's practice) few examples of different interpretations and unequal application of laws for various groups of citizens in different situations as specific problem of the functioning of the rule of law in a democratic state:

• There is no enforcement of payment of debts of large consumers of electricity and they suffer no consequences for not abiding by the contracts, while households of individual consumers are subjected to electricity cut off;

• Illegally constructed buildings belonging to certain citizens close to the ruling structures or to citizens with substantial means are not destroyed or are legalized, even when such buildings are an evident threat to the environment; however, houses of very poor citizens who have no other housing alternative are destroyed in an urgent procedure, the citizens being left without a roof over their heads;

• The authorities choose for their counterpart in the talks, a trade union (the Federation of Trade Unions) which is more to their liking, i.e. a trade union that the authorities have been funding for longer period, contrary to the law, as different from other trade unions (i.e. Association of trade Unions) which have firmer positions in defending workers’ interests.

Corruption is part of this complete denial of the rule of law. According to the data of Worldaudit at the 1-100 scale (1 is the best rating), Macedonia has 91 points. In 2005 corruption was not a privilege only of those who are in power, but it became the carcinogenic state of affairs, with metastasis in the entire society, i.e. in absolutely each pore of society (according to the cases registered at the Helsinki Committee there is corruption at all levels of education, in the judiciary, in the police, health care sector, administration). Corruption determines the entire life of citizens to such an extent and it is spread in such a scope that one starts to lose the ability to even recognize corruption. Regardless and despite of the great efforts that the Anti-Corruption Commission makes, it does not manage to break through the bulwark surrounding the authorities and has not brought to an end even a single case. The lack of responsibility and sanctioning of high profile corruption scandals (especially enhanced with the intentional blocking of the work of the Anti-Corruption Commission by the Government and by the Public Prosecutor’s Office) raises the question as to where there is any point in dealing with petty every day corruption.

The Prosecutor of the Republic of Macedonia (and the entire Public Prosecutor’s Office) played an exceptionally negative role in the fight against corruption in 2005. Contrary to clear legal provisions, according to which:

• Article 42, paragraph 1 of the Law on the Public Prosecutors’ Office: “The fundamental right and duty of the Public Prosecutor is to prosecute perpetrators of crimes.”

• Article 25 of the Law on the Public Prosecutor’s Office: “Concerning affairs and powers that fall under the competence of a Public Prosecutor’s Office, the latter receives reports on crimes, objections, other papers and statements submitted by citizens, state bodies and organizations and other legal entities.

• Article 142 of the Law on Criminal Procedure: “(1) The state bodies and institutions which perform public mandate are obliged to report crimes which are prosecuted ex officio, of which they are informed or of which they learn about in a different way. (2) When they report, the mentioned under paragraph 1 of this Article will state evidence which they are familiar with and will undertake measures to keep the traces of the crime, objects upon which or with which the crime has been committed and other evidence. (3) Everyone is obliged to report a crime which is prosecuted ex officio. (3) Cases in which non-reporting of a crime is a criminal offence will be prescribed by law. “

The Public Prosecutor, who is to undertake action even upon oral statements by citizens spent last year in waiting, checking, avoiding meeting competent bodies and avoiding instituting a procedure on any case which is directly or indirectly linked with the state and with actions of individuals connected with the ruling structures.

The further degradation of the state administration disables its profiling into a structure to advance and ensure human rights and freedoms and turns it into a structure that violates or threatens these rights to a great extent.

The expansion of the political party bargaining into the area of state and public administration is inter alia demonstrated through the weakened role of the Civil Servants’ Agency. Instead of its establishment as an independent body that ensures the administration development in pursuance with the principles of: legality, non-discrimination, proportionality, objectivity, non-partisan policy, transparency and accountability, the Agency is turned into a tool of political parties helping them to achieve complete control of the administration. The Agency does not even make an attempt to oppose cases of dismissals of appointed officials without any explanation and legal advise; or to oppose the appointment of new personnel regardless of the fact whether they fulfill or not the legally prescribed conditions; or the practice of ministries not respecting decisions of their own bodies in charge of control and inspection. In this context, the Agency, inter alia, decided to reject most of the complaints of employees in various ministries under the pretence of the alleged “structural reforms”, without considering the arguments stated in the complaints, and simply repeating the arguments presented by the ministries – that it is a matter of a structural reform (even in situations when only the designation number of the job position is different.)
II.4. Limitations of the voting right and the right to direct decision making by citizens

In March and April 2005 there were local elections, which were to be the turning point in the local democracy practice in the Republic of Macedonia. At these elections, municipal authorities were to be elected that for the first time would take over the burden of the new decentralization, introduced in accordance with the constitutional and legal framework created after the 2001 conflict. The idea of the decentralization was twofold: to make the power closer to citizens, and to establish autonomy of communities in accordance with elements of the consociation model. The new municipalities have extensively enlarged competences and autonomy in conducting local affairs, which automatically enhanced the importance of the electoral victory for local elites. Unfortunately, owing to electoral irregularities citizens did not have almost any opportunity to authentically make their choice in the process of establishment of the closest power to them - the local one. For the first time in a longer period, the criticism of the international community was severe and categorical, which underlined the retrograde process in the electoral democracy in the Republic of Macedonia.

The irregularities in the electoral process started as early as the pre-election campaign, the main features of which were again discrediting, verbal offences and threats against political opponents, while citizens were exposed to pressures and fear from possible disorders during the elections. The ruling parties again abused their position in the electoral process, and ministers and even the Prime Minister himself, and other holders of public offices directly participated in the political party election headquarters and campaigns, violating thus international and domestic norms.

The Helsinki Committee considers that the violations of the suffrage right, as fundamental human right and as a general principle of the human rights concept can be located in the following elements:

Elections have to a very little extent satisfied the principle of credibility or authentic choice, i.e. elections that derive from citizens and are aimed at citizens. The entire process of conducting the elections, the pre-election activities and especially the prominent presence of the party interests, as opposed to the genuine interests of citizens at the local level have to indeed made the elections element of party solutions, deals and competing, and not an answer to the true needs and interests of citizens;

Great number of citizens of the Republic of Macedonia could not freely express their will and freely make their choice. The influences go greatly beyond what is usual in a democratic society: influence by open or disguised threats (especially to employees in state bodies or public institutions); bribery of individuals or entire collectives and settlements (villages); use of force or threat with use of force (especially on the day of elections); abuse of offices by members of certain election boards and elections commissions (direct participation in illegal ballot box stuffing and forgery of Voters’ Lists or indirectly by allowing such activities without undertaking appropriate actions).

In the course of elections the general non-discriminatory character of the human rights and freedoms concept was violated and citizens of the Republic of Macedonia did not have equal opportunity to equally exercise their right to vote:

a) The most discriminated against in the course of elections were persons belonging to the Roma and Albanian community. They exercised their right in much worse conditions as compared to persons belonging to other ethnic communities, in an atmosphere of threats and abuse of offices, use of force and increased number of cases of bribery.

b) Albanian women were the second most discriminated group at these elections. Namely, very little number of Albanian women (particularly from rural areas) had the opportunity of voting (at all or independently); they were not involved in the work of election boards and commissions and were not placed on lists of possible candidates for councilors and mayors.

c) Illiterate and semiliterate persons were disabled to exercise their right to vote due to lack of elaborated procedures for impartial assistance in casting ballots.

d) Significant number of internally displaced persons (especially those outside the collective accommodation centers) de facto did not have opportunity to vote.

e) At these elections too, citizens of the Republic of Macedonia temporarily staying abroad could not vote.

f) Disabled persons were not in an equal position in terms of exercising the right to vote (both because of inaccessibility of large number of polling stations and because of lack of appropriate impartial assistance in voting to persons with impaired sight).

The principles of fair elections and campaigning and exercising the right to vote in a fair and free atmosphere were endangered though the direct and indirect involvement of representatives of the authorities in the election campaign. The active involvement of representatives of the executive power and especially of the state administration (the Prime Minister, some of the Ministers, deputy ministers, officials and officers of the state administration) in the election campaign is contrary to item 5.4. of the Copenhagen CSCE document under which the state has committed itself that an important element of justice will be ”clear separation between the state and political parties; especially that political parties are not identified with the state.” The conflict of interests in these cases is not of moral, but of legal character (regulated with the provisions continued in the: Law on the Organization and Work of State Administration Bodies, the Law on Elections of Members of Parliament, the Law on the Voters’ List) and can lead to a serious suspicion in the validity of conducted elections. A special demonstration of the interference of political affiliation with the performance of high ranking state offices is the act of manifested abstaining from voting by the Prime Minister in the last round of elections for mayor of the City of Skopje. These principles were threatened by the fact that the pre-election campaign was mostly aimed at discrediting the opponent and was not focused on offering programs and strategies of development and managing decentralized power (which indirectly puts under question the further implementation of the decentralization process and ensuring citizens’ rights and freedoms at the local self-government level).

The violations were especially evident in respect of vulnerable and marginalized groups. Seen through the ethnic prism, the Roma were especially exposed to pressures (they were even threatened with losing their welfare assistance, which for large number of these persons is a threat to their subsistence). Furthermore, there were especially serious violations of the voting rights in communities with dominantly Albanian population. At the elections for a mayor of the City of Skopje, the party spokespersons openly talked about use of the so-called party contingents (referring to the possibility of using the votes of the Albanian community). This represents complete negation of the individual and personal character of the voting right and recognition of the grossest possible violation of this right in the name of a group or party. The gender aspect of the analysis shows a serious retrograde process in terms of women’s participation, either as part of the electoral administration (i.e. members of election boards and commissions, and of the State Election Commission) or as voters. Thus, contrary to the progress enabled with the introduction of the 30% quota for each gender in the practice there were lists of candidates approved not having a single woman candidate. On the day of elections, at certain polling stations there could not be women noticed among the voters, or even more often there were cases of family or proxy voting. Persons with special needs continue experiencing problems in exercising their voting rights.

Local elections were again conducted without professional electoral administration, and the level of competence and impartiality of the members of the election boards remained evidently low. Regarding the most flagrant cases of use of violence at the elections there were charges raised, however due to the inefficiency of courts and the ambiguous legislation most of the perpetrators remained unpunished. In other words, the authorities still nurture the so called impunity culture which further strengthens the mistrust of citizens in the democratic institute of elections, and encourages those that engage in illegal activities to come to power. The right to vote does not have the treatment of a human right guaranteed to individuals. Instead under the legal procedures it is considered only through the prism of the total impact of the violations on the results of the elections. Faced with increasing apathy and low turnout of citizens, political actors continue to search the remedy in decreasing the election turnout threshold, which creates absurd situations, in which certain mayors or municipal councilors acquire maximum legality, with minimal legitimacy.

The dispersion of irregularities at local elections, again the same as at other elections, has a certain pattern. There are evident differences according to the criterion of ethic community affiliation (with the greatest violations among the Albanian and Roma communities), as well as according to the type of settlement (greater violations in rural settlements compared with urban areas), and gender (discrimination of huge part of the Albanian female population) etc.

In 2005, there were no examples of conducted referendums. However, there were significant changes of the legislation, which basically led to limitation of the right to referendum and undermined the pillars of liberal democracy. Learning from their experience with the referendum held in 2004, becoming obligatory after 150.000 signatures of citizens were collected upon citizens’ initiative, and desiring to avoid a similar situation in the future, the ruling parties in Parliament adopted a new Law on the Referendum and Citizens’ Initiatives which eliminates the possibility to conduct obligatory referenda in accordance with the constitutional provisions if the referendum question is related to the scope of issues of interest to ethnic communities ( which are decided upon at Parliament with the so called double majority - of the total number of MP’s and of the communities which do not represent majority in the country). Thus, once again the priority position of collectives and collective rights vis-a-vis individual rights was confirmed.

II.5. Legislative amendments and initiatives for adoption of laws

In 2005, there were several initiatives for adoption of laws that are directly connected with the human rights and freedoms promotion and protection. The Committee considers the trend of initiating the adoption of laws and legal amendments by citizens, or non-governmental organizations working in a given field to be a very positive trend. Thus, the following can be underlined as a positive step in the development of democracy: the initiative to adopt the Law on Protection of Rights and Dignity of Disabled Persons (submitted by "Polio Plus"), the Law on Same Sex Partnerships (submitted by "MASSO") and Law on Non-Discrimination (submitted by the "Helsinki Committee").

In 2005 there were public debates starting regarding the Law on Equal Opportunities for Women and Men, the Law on the Police and the Law on Religious Communities and Religious Groups (initiated by the relevant ministries i.e. by the Commission for Relations with Religious Communities and Religious Groups). The very fact that as a public debate on laws in these areas started is indeed positive, despite the fact that the latter’s’ text (on the police and religious communities) contain serious deficiencies, which directly affect the human rights and freedom and are per se a threat to these rights or through their implementation will create conditions for endangering human rights and freedoms. Therefore, the Helsinki Committee considers that in the adoption of the said two laws there should be special attention paid to all remarks presented by various non-governmental organizations, scientific and professional institutions and independent experts. If there are no serious interventions made in the texts of these two laws, their adoption can be an open attack against the rule of law and against protection of human rights and freedoms.

II.6. On constitutional amendments and human rights protection

The Helsinki Committee welcomed the commitments of the Government to ensure efficient implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms, through various constitutional amendments. This is an obligation of the Republic of Macedonia as a party to the Convention. In this respect, the Helsinki Committee contributed to the public debate on the text of the draft amendments to the Constitution.

The primary objection of the Helsinki Committee is related to the selective approach both in terms of the commitments of the initiators and in terms of protection of all human rights. Thus, instead of full correspondence and correlation with all provisions of the Constitution with those contained in the European Convention on Human Rights, the draft amendments were focused only on certain rights, such as the right to presumption of innocence and the right to fair trial. Even more only partial solutions were offered in respect of these rights. The Helsinki Committee proposed that the constitutional protection of all constitutional rights become the first instance competence of the Constitutional Court, having in mind the principle of indivisibility of rights, or that it becomes the Court’s second instance competence, having in mind that regular courts face serious problems in this respect.

Unfortunately, neither this proposal nor most of the remarks of the Helsinki Committee were accepted. Hence, in respect of the adopted amendments it could not be concluded that they would contribute to the implementation of part of the declared commitments, under the constitutional amendments: efficient implementation of the European Convention on Human Rights and creating conditions for application of domestic laws, in accordance with the spirit of the European Convention on Human Rights.

There is a confusion further remaining in the Constitution of the Republic of Macedonia in respect of citizens’ and human rights, while only “A citizen has the right to be informed on human rights and basic freedoms” (Article 50). The Republic of Macedonia remains a state in which human rights do not belong to all people, and: “the basic rights and freedoms” are guaranteed only to citizens. Consequently, one could not talk about protection of human rights in the Republic of Macedonia, but only about protection of ”citizen's rights”. (According to the Constitution, in terms of protection, not every person, but “Every citizen may invoke the protection of freedoms and rights determined by the Constitution before regular courts, as well as before the Constitutional Court of the Republic of Macedonia” (Article 50, Para. 1).

II.7. The Budget of the Republic of Macedonia and the human rights

The structure of the central budget and the explanations included in it are of utmost importance for developing, exercising and protecting the human rights. The priorities on the budget expenditures side for a specific year and the allocation of the funds to budgetary beneficiaries and items constitute one of the indicators of the direction in which the democratic system is developing, of the degree of development of the Government’s control mechanisms, as well as of the extent to which the State has fulfilled its obligations, which the exercise and the protection of the human rights and freedoms depend on directly or indirectly.

In the Introduction to the budget of the Republic of Macedonia for 20051 , it is stated that the reforms of the budgetary programs and the presentation of the budget should: reflect the main activities of the budgetary beneficiaries; enable evaluation of the results through identified indicators; produce more information for the purpose of better analysis and control of the budgetary expenditures, thus increasing the accountability of the Government. Therefore (according to the explanation included in the Introduction to the budget for 20062 ), the ministries have developed strategic plans whereby they have defined their basic objectives, the necessary activities and the fiscal implications around the implementation of those activities.

In the practice of presentation of the budget, there are several obvious problems that interfere with the basic idea of transparency, accountability and responsibility of the function holders.

1. In a large number of the presentations, it is obvious that the state authorities make no difference between functions of the authority and objectives/specific activities for achievement of those objectives.

2. Just as an example:

• “Enacting laws, bye-laws, decisions, declarations, conclusions etc.” is mentioned among the priority objectives of the Parliament of the Republic of Macedonia for 2006. This is, however, one of the functions of the Parliament and it can’t be an objective per se. The objective should include what one wants to achieve through the performance of this function during a specific year (for example: to strengthen a certain normative sphere, to provide for a greater legal protection in a certain area, to regulate certain issues).

• Taking into account these objectives, there is a need to provide for specific activities through which the objectives will be achieved (such specific activities through which the specified objectives would be achieved were given in neither 2005 nor 2006, i.e. it was not explained how they intend to accomplish the objectives).

• Indicators should be provided for each activity, which will make it possible to measure to what extent an objective was achieved, and to make a comparison between what had been planned and what has been accomplished (in 2005, an attempt was made for identifying indicators concerning the achievement of the objectives, but this was abandoned in 2006 – no indicators were offered).

Since transparency, accountability and responsibility of the state authorities represent the foundation for the exercise and protection of human rights and freedoms in the relationship between the individual citizen and the State, the further development of the presentation of the budget has a great influence on the level of achievement of these rights.

In the Introduction to the Budget for 2005 (as well as for 2006), it is emphasized that the funds available to the Republic of Macedonia are limited and therefore they should be directed towards programs of greatest priority. If this is so, then according to the data obtained from the comparison between the 2005 and 2006 central budget expenditures by functions, conclusion can be drawn that there is an enormous increase in the importance of the executive and legislative authorities, of the financial and fiscal affairs as well as of the foreign affairs, vis-a-vis the smaller increase in the importance of the economic affairs and the decreased importance of the environmental protection.

The funds intended for agriculture are still below any relevant minimum, and the budget for scientific and research activities (133.800 thousand denars) is twice smaller than the budget of the State Electoral Commission (258.144 thousand denars). Such allocation of the budget could not avoid affecting the overall socio-economic situation in the country.

By comparing the priorities for 2005 (specified in the central budget adopted on 29 December 2004) with the most significant results achieved by certain state authorities (presented in the central budget adopted on 26 December 2005), we come to some very upsetting indicators (as well as with many unserious statements for such a serious document):

1. Governmental programs:

a) One of the elements of the governmental program “Measures for reducing poverty” is electrification of villages (according to the indicator included in the 2005 budget: “a large number of families will get electricity”). Based on the data included in the budget for 2006 (section on achieved results), three villages got electricity in 2005 (the number of population that got electricity is however not specified), but the fact remains that this program will continue in 2006 as well (which means that with big steps, or one village after another, we are entering the 21st century).

b) Funds for reconstruction of houses in the former crisis regions have been allocated in both 2005 and 2006. Taking into account the continuous problem with over 160 families from these regions (especially from the village of Arachinovo and the Lipkovo municipality), it is obvious that the programs are not achieving their goal (or the money is transferred for somebody else’s houses). The budget developers are not even sure what year the conflict happened (in the budget for 2006, they claim that the conflict in Macedonia was in 2000).

c) The following are among the indicators for the realization of the program on strengthening of the rule of law for 2005:
• Improvement of the flow of information between the State Anti-Corruption Commission, the Ministry of Finance, the Public Prosecutor Office and other relevant institutions (the developments during 2005, which culminated in a public accusation made by the Commission, indicate that this cooperation was not achieved during 2005, and most probably this is the reason why it is not mentioned as an indicator for the following year, i.e. 2006).
• Conducting investigations (which also appears as an indicator in the budget for 2006). The problem is that there is no mention of the number of completed investigations in relation to the number of successfully completed court cases (which makes this indicator absolutely pointless).
• Adoption of a Law on Cooperation with the International Criminal Court, which was supposed to be manifested through harmonization of the procedures in line with the Amnesty Law (since such law was not adopted, the fact that it is missing in 2006 most probably means that we have given up its adoption?).

d) The most interesting are the indicators about the governmental policy on economic development. Indicators for the realization of this program listed in 2005 include: establishment of many small and medium size enterprises, increasing the average salary, increase in the foreign investments. 569.246 thousand denars were allocated for this program, and since not many small and medium size enterprises were established, since the average salary was not increased, nor were the foreign investments increased, the objectives were obviously not achieved. However, this program exists in 2006 as well, with 6.870.223 thousand denars allocated for it (meaning more that 12 times more).

e) No indicators are mentioned for the governmental program on reform of the agriculture. However, only one project is mentioned: restructuring of the water management enterprises. The same continues in 2006?

2. In our analysis, we will draw the attention only to a few budgetary programs (activities of state authorities), which are particularly important for the exercise and protection of the human rights and freedoms:

2.a) One of the priorities of the Parliament for 2005 was the completion of the initiated activities for reconstruction of the Parliament building (for which 35.000.000 denars were foreseen). This same priority of exceptional importance for the development of the country is also foreseen in the budget for 2006 (with exactly the same amount of money).

2.b) According to the 2005 budget, the main function of the State Audit Office is to provide supervision and control, support and improvement of the public accountability of the individuals and institutions that are managing public funds. Taking into account the statement of the Prime Minister concerning the audit performed in state authorities (saying that an audit has only informative dimension and obliges one to nothing), we think that the State has to make up its mind: the State Audit Office is either a control mechanism that improves the accountability of the officials, or it is a totally unnecessary institution for which 85.000.000 denars are wasted (money collected from the citizens of the Republic of Macedonia for a certain purpose).

2.c) The Constitutional Court of the Republic of Macedonia is the only authority in relation to which protection of the human freedoms and rights is mentioned. The Constitutional Court had the intention (in 2005) and still has the intention (in 2006) to measure its efficiency and the degree of development of democracy, rule of law, constitutionality and protection of human rights and freedoms with the expected “increase in the volume of received submissions for which constitutionality and legality will be subject of a judgment”. Does this mean that the Constitutional Court expected and is expecting adoption of a larger number of laws and general acts that are in contradiction of the Constitution, and through which basic human rights and freedoms are violated? Does this mean worse laws and regulations and more inappropriate actions taken by the state authorities? If it is so, then it is definitely contrary to the goal of further implementation of the EU standards in this area.

2.d) The implementation of the Ohrid Framework Agreement is stipulated as a priority for the actions of the Government in both 2005 and 2006. Since one function of the Government is to enforce laws and other regulations passed by the Parliament, we are again asking the question about the place of this Agreement in the legal system of the Republic of Macedonia and about what is "it" that the Government will implement in 2006 in this particular field.

2.e) Since the protection of the human rights and freedoms is not included in the description of the functions of the Ministry of Interior, this is also missing from the list of priorities for this Ministry. However, if one looks at the tasks this Ministry has set for itself for 2005, it is clear that it has failed to execute its function, because contrary to the plan: the number of assaults on life increased; the personal security of the citizens and of their property worsened; safety in traffic worsened; criminality rate was not reduced. In the budget section on this Ministry, there is no sub-section on the accomplished tasks during the previous period.

2.f) As for the Center for Crisis Management (for which 128.000.000 denars are earmarked in the budget for 2006), according to the results presented in the budget for 2006, achievements in 2005 included the creation of conditions for work of the Center (Law was passed, Director {of course, a political appointee} and Deputy Director were appointed, staff were recruited, and offices and material and technical conditions were provided for the start of the operations). Priorities for which 128.000.000 denars will be spent in 2006 include once again: finishing the process of recruitment of staff; meeting the spatial and material requirements for the operations; reconstruction and adaptation of offices; procurement of furniture and office supplies.

2.g) The Directorate for Protection and Rescue Operations had a budget of 57.650.000 denars in 2005, of which 44.000.000 were spent on salaries and the rest on other expenditures associated with the regular maintenance of its operations. In 2006, it will receive 119.786.000 denars (of which 80.000.000 are to be spent on salaries and rents, 11.650.000 on regular maintenance, 200.000 on capital expenditures, and the rest of only 4.500.000 on subsidies and transfers). We remind that the Constitutional Court passed a Decision (Ref. No. 147/2004-0-0, dated 20 October 2004) on rejection of the initiative to annul the Law on Raising Funds for Assisting the Municipalities to Remove the Consequences of the June 2004 Floods (“Official Gazette of the Republic of Macedonia” No. 38/2004) because of the following: “according to the Court, it is possible to oblige the citizens by law to provide funds in accordance with the principle of solidarity, wherein this obligation has the nature of a public duty determined by law, as this has been done in this specific case through the contested Law. Therefore, the Court concluded that it was unjustified to raise the issue of the conformity of the contested Law with the Constitution”. Since the basic function of the abovementioned Directorate includes protection and rescue of citizens and natural wealth against natural disasters, epidemics and other accidents, the following question can be asked: Will the Decision of the court mean that the budgetary funds (collected from the citizens) will continue to be spent on furniture, offices and salaries of a certain number of employees, and that money from these same citizens will be collected again for accomplishment of the duties for which the Directorate was established in the first place? In this context, one can ask the question about the role of the Constitutional Court in the protection against the irresponsible collection and spending of the money of the citizens, which we will be scrutinizing in the light of the Final Account where we will be looking at the collected money and the purpose for which the money was used.

2.h) During 2005, the Ministry of Agriculture did not manage to achieve a large portion of the previously set objectives: improved competitiveness; building effective public and private institutions; improving the revenues from agriculture; ensuring that consumers have access to safe food; optimizing the use of the limited land, forest and water resources; ensuring that sustainable rural communities be built in an environment-friendly manner through constant rural development.

2.i) The Ministry of Labor and Social Policy also failed to achieve a large portion of its objectives stated in the explanation of the budget for 2005. Despite the statement that it would do so, the Ministry failed to achieve the following: ensure a sustainable system of social protection that would reduce poverty; protect the poorest groups under highest risk* ; reduce poverty; increase the employment rate; create conditions for prevention of long-term unemployment; protect the unemployed; raise the living standard. Moreover, the achievements presented in the explanation of the budget for 2006 have nothing to do with the priorities set for 2005.

2.j) The Commission for Relations with the Religious Communities has been spending budgetary funds for the third year now on the enactment of the Law on Religious Communities and Religious Groups. Other important results (in addition to the continued work on the Law) achieved during 2005 (listed in the budget for 2006) include: participation in two manifestations, analysis of the situation in the American-Canadian eparchy, and “The voice of Orthodox Russia in Macedonia” (whatever this may mean). Except for the continued and exhausting work on the Law, it remains unclear what these achievements have to do with the basic function of the Commission: dealing with issues related to the legal status of the religious communities and religious groups, as well as issues related to the relations between the State, the religious communities and the religious groups. In this sense, the priorities set for 2006 are also unclear: “supporting the project of common interest to all religious entities (this is most probably some generally known project that the public is well informed about); inclusion of the religious faculties in the system of higher education; supporting the institutions that foster spiritual music; equipping the libraries in the secondary schools under the religious institutions; and supporting the operation of opening libraries in monasteries and in other religious structures that are of importance for the cultural and spiritual development of the Republic of Macedonia.

Concerning the future developments in the area of budgetary spending, there is an interesting medium-term projection of the budget of the Republic of Macedonia, according to which the salaries and the contributions (which have been marking a constant increase, foreseen also for 2006) will suddenly decrease in 2007 and 2008 for one fourth in relation to the previous period. What are the grounds for such a projection and how this will be achieved remains one of the secrets of the governing structures. 

III. INSTITUTIONS AND MECHANISMS FOR PROTECTION OF HUMAN RIGHTS AND FREEDOMS

One of the important guarantees for the declared state’s commitment to promoting and protecting human rights and freedoms is the establishment of a system of institutions and protection mechanisms that shall secure the protection and shall ensure sanctioning of perpetrators. Human rights and freedoms cannot be exercised and be protected in conditions of devaluation of all protection mechanisms that citizens have available in a democratic society.

In 2005, the state continued to systematically limit all democratic state mechanisms, which serve as a check-and-balance tool primarily in respect of the executive, but also of the other branches of power, while such mechanisms at the same time, should be available for citizens to protect their rights and freedoms.

1. Situation in prisons, police, police overstepping of authorities, torture, ill treatment

a) Situation in prisons

In 2005, the Helsinki Committee registered five new death cases in the largest prison in Macedonia – Idrizovo. According to the prison authorities, three of these cases were suicide cases, one was murder and one case is a case of “unexplained” death- there were no signs of violent death, simply the person was found dead in his bed. In the same period, there were three suicide cases in the Investigative Prison in Skopje (Sutka), and one suicide case in the Tetovo Prison (where there was also one attempted suicide registered). Nine death cases in total, which is a serious increase if one takes into consideration that in the previous four years there was a total number of four death cases (3 in 2004 and one in 2003).

The indications of corruption among prison officers (registered in several cases of assigning prisoners to various wards, granting or taking away privileges and benefits, and in the unimpeded drug trafficking) did not attract the interest of the control bodies and did not lead to institution of procedures against the prison employees.

It is certain that the “explanation” by the Idrizovo Prison Director that ”naturally people die in prisons” is unacceptable, or even worse that such “explanation” replaces a genuine and successful investigation (which was lacking) and serves as basis only for several brief public statements (which disguised the essence of the problem).
The only action undertaken was to fine the two prison guards, and the 'regular remedy' was applied – that of change of the Director of the prison. Unfortunately, there were indications of other death cases or at least attempts to take away human lives, but the authorities, on one hand, fully negated such claims and on the other hand did not allow efficient examination of such claims. Loss of human lives did not motivate the authorities to analyze the situation with the health care in prisons (complete lack of specialist medical services, quite insufficient general medical assistance and sporadic presence of a psychiatrist, i.e. psychologist in the prison). The latter was especially drastically manifested in the case of a minor in the Investigative Unit of the Prison in Tetovo who after attempting suicide was given only therapy with strong tranquilizers, without being provided with any care or assistance.

The deterioration of the state of affairs, especially in the Idrizovo Prison was to be expected and was predictable. Even as early as 2004, during the visit to the so called closed institutions – a project realized under the cooperation of several European Helsinki Committees, it was inter alia pointed out that the situation was “explosive” (about 1200 prisoners gathered in one place, with serious problems in terms of their segregation, without stratified access and without genuine possibilities for work in the context of their re-socialization) and that it was necessary to “break down” the Idrizovo Prison into several smaller prisons. Instead the Prison and the executive authorities opted for realization of a project for modernization of the prison facilities, without dislocating at least part of the prison population- they simply transferred them in prison wings that would be renovated later.

In this manner and perhaps despite the good will, there was a new, even more complex situation created of over-crowdedness in the old, inappropriate and badly maintained facilities in which 20 to 25 prisoners are placed in a cell, in which according to prison standards 4 to 5 prisoners are to be placed at most. By this, the control and work with the prison population was practically made impossible, especially if one takes into consideration that special cases were not separated. In the context of special cases, there is the case of the 11 mentally ill prisoners that can be singled out, as well as the case of the 40 registered (and most probably about 90 unregistered drug users), all of them as stated above not separated from the rest of the prison population. The deficiencies in the “promotion” system i.e. transfer from stricter to a facilitated form of prison regime were not overcome. Instead they culminated all the way to complete lost of trust by prisoners in the legality and grounds of the decisions by prison authorities in this respect. Such a lost of trust was reflected in several individual protests and in several attempts for strike, and even riots of a smaller scale.

Unfortunately, all these signals were not sufficient to prompt a decisive action by the authorities. What is more, even the goodwill criticism was denied and those criticizing were discredited. However, it should be underlined that even in such conditions the prison authorities, especially at the working level, accept contacts and even talks of closed type and before the Macedonian public. Despite the fact that there are still no substantive reforms, the change of tone that can be noticed in the public statements heralds that there is progress in examining and learning about problems in this area.

b) Torture

In accordance with Article 79 of the Law on Execution of Sanctions, after long delays and announcements, the legal obligation of establishing a State Commission for Supervision of the Prison System, composed of judges, penal law experts, sociologists and educational personnel was fulfilled at the beginning of the summer. Ever since its establishment until the preparation of this Report, there have been no serious signals that the Commission is making any, if not intensive, efforts to counter the current problems that the prison population faces, regardless of the fact that the Commission does not have investigative competence. This unavoidably leads to the conclusion that this Commission is nothing but an attempt to “abate” the thrust of the increasing and more and more argumented public criticism, and on the other hand to avoid an obligation deriving from ratified documents5 , i.e. to establish an independent commission with competencies to investigate cases in which there are indications of torture.

On the other hand, prosecutors and judges continue the practice of tolerating and even conducting procedures in situations in which there are numerous and even very clear indications that the case is based on confession extortion, especially from detained persons, which runs contrary to the Constitution (prohibition of extorting a confession); furthermore, this is defined as criminal offence, while the Law on Criminal Procedure envisages that evidence obtained in such manner is to be disregarded as inadmissible. This is coupled with the complex, but very successful “system” of impeding efficient investigations of cases with indications of torture. Namely, in Macedonia there is only one institution competent for and having expertise to establish medical findings in a form of evidence of torture acceptable for the court - the Forensics Institute. Using the procedure for establishment of the so called “mechanisms of incurring injuries”, a medical finding is established which can serve in the court procedure as grounds to consider that the injuries of a person are consistent, i.e. correspond with the person’s complaints that public servants have inflicted those injuries in the course of an official procedure either to extort a confession or to illegally punish the person (i.e. substantive elements of the crime of torture). The procedure is possible also owing to the fact that the right of the person deprived of freedom to call a doctor of his/her choosing is not respected.

Only a judge may request the Forensics institute to establish findings of this type. Private persons, regardless of their readiness, expressed in certain cases, to pay the very high price for such examination, may not request the Institute to make such an examination. The Public Prosecutor can only propose to the (investigative) judge such an examination, but courts, allegedly due to chronic lack of funds, do not have the necessary finances to request such an examination by the Institute. Contrary to this, medical findings from other institutions are detractively accepted, but not at the necessary expert level, i.e. must be subject to “further examination”. And thus the circle is complete. Hence, there is not a single processed case of torture “proven” based on findings of the Forensics Institute, or at least such a case is not known to the public.

c) Police

In such conditions, or more precisely when the Police know that they will go by unpunished for the torture and that the justice system bodies will accept evidence obtained through extorted confessions (regardless of the veracity of such confessions) it is not surprising that the Police continue the practice of apprehending allegedly suspicious persons, not based on court orders, but based on the orders from the commander of the police station.
There is even a step beyond that - it is claimed that it is not matter of “deprivation of freedom” but only a “usual” conduct of police tasks. However, faced with the growing awareness of citizens about their rights in this context, and by this faced with the increasingly strong reactions to such police conduct, the number of cases of arbitrary or unlawful deprivation of freedom in general terms is decreasing. There was a period in which such cases were very often due to the development problems in the functioning of the newly established police unit called Alphas.

Namely after a longer pause, this special unit was established in 2005 to counter the so-called “street crime”. Having in mind that the starting basis was zero, the Alphas showed “excellent” results in a relatively short period of time. However, after an unfortunate episode when two Alpha officers were brutally beaten by several armed persons (belonging to the Albanian community) at the access road to the village of Kondovo in the Skopje area, there was a drastic change towards the opposite. Instead of the Alpha officers exerting positive, improving influence on the other police officers, after this episode, instead of demonstrating their strength vis-à-vis the criminals, similarly as a series of regular police officers, the Alpha officers started a “crusade” against the citizens. Fortunately, this time the citizens responded with timely and numerous reports against such cases. Regardless of the fact that none of these reports has been processed or at least dully examined, it is certain that such a pressure resulted in a relatively prompt “quenching” of the excess conduct primarily of the Alpha officers.

It should be noticed that compared to the previous year, certain public prosecutors and judges started dully considering the duration of the pronounced measure of detention, setting thus excellent examples and proving in the best manner that the regulations are not the problem (which is the most often excuse of the authorities) but the quality of judges and the conduct of court procedures. Unfortunately, such quality examples did not acquire larger scale proportions. 

The practice of political discrediting, instead of dialogue and countering arguments was manifested in some of the latest statements of the Ministry of the Interior regarding the work of the Office of the Ombudsperson. The Minister of the Interior accused the Ombudsperson of selective approach towards cases of police brutality and overstepping of authorities, for which the Ombudsperson showed interest. The Minister of the Interior did not elaborate the cases themselves and did not dispute the relevance of the interest of the Ombudsperson in such cases, but implied ethnic grounds for the interest of the Ombudsperson. In his statement, the Minister did not offer explanation for his claim nor he referred to data that would show how many and which individual applications had been submitted to the Ombudsperson, regarding which the Ombudsperson instituted procedures and regarding which the Ombudsperson did not institute a procedure, i.e. whether there was abuse of power by the Ombudsperson that would indicate discriminating conduct towards persons belonging to any of the ethnic communities. Furthermore, the Ministry of the Interior accused that the statements of the Ombudsperson are “an intentional attack against the Ministry of the Interior” i.e. that “ a political dimension is intentionally attributed to the initiated cases and to the alleged lack of cooperation on the part of the Ministry”. Finally, the Spokesperson of the Ministry of the Interior presented the position that there were documents in the Ministry of such a character that made them inaccessible to the Ombudsperson (contrary to Article 27 of the Law on the Ombudsperson according to which the Ombudsperson must have an insight into all requested information, regardless of the level of confidentiality, while he/she is under the obligation of keeping the state or official secret”.)

2. Regular Courts, the Constitutional Court, and the Ombudsperson

a) The Regular Courts

The Judiciary greatly contributed to the disrespect for the law, either due to its dependence on the influence of the executive power and of the ruling political parties or due to lack of appropriate knowledge of international standards under the European Convention on Human Rights or other ratified conventions and other international documents, or most often due to both reasons. The right to a fair trial and existence of effective legal remedy were especially threatened, which can be concluded from the numerous cases brought before the Helsinki Committee in which there are evident violations of the rights of citizens in respect of:

• Determining the measure of detention;
• Treatment of minor offenders;
• Privileged treatment of representatives of the Ministry of the Interior in cases in which they are charged;
• Acting in cases related to national or church interests.

According to the cases presented to the Helsinki Committee, regular courts most often do not manage to protect human rights and freedoms due to:

1. Lack of knowledge which is disguised with the declared free conviction of the judge, which, for example,

- leads to a situation in which quite opposing verdicts were adopted regarding identical or similar cases (for example the Kuzman Cilkov case, Skopje versus Kire Sotiroski, Krusevo and the Getro case, Gostivar for payment of an annual leave compensation since 1995- the parties to this case were divided into two groups and allocated to two different judges; in one group of cases the verdict was adopted in 1999, while the verdicts for the other identical cases have still not been adopted);

- leads to prevention of the possibility for enforcement (Gorge Arsov from Skopje);

- leads to violations of rights contained in international conventions (the case of Adnan Saini); 

- leads to absolute impossibility of exercising a given right (the case of Tomislav Spasovski, from the village of Aracinovo, in which the right of the plaintiff is accepted, but according to the courts no one could be proclaimed guilty).

2. Protection of the interests of the state and state bodies (especially the Ministry of the Interior) as opposed to the individual and his/her rights. For example:

- the case of Saso Kostadinovski, Kumanovo, in which the indicated torture has still not been resolved since 2003, because the judge does not schedule hearings, or because the hearings were postponed due to absence of police officers charged, or finally because of the absence of the judge herself; or

- the cases of Julia Gavazova and Makedonka Lozanovska, Skopje which are postponed 7 or 8 times due to absence of witnesses employed in the Ministry of the Interior; the court did not have the courage to issue an order for forced apprehension of witnesses, and did not apply the provisions of the Law on the Ministry of the Interior as a state body.

3. Lack of enforcement of court decisions which makes the right to a fair trial and trial within a reasonable period an illusion, especially in light of the fact that the national state system allows final legally valid verdicts to remain unenforced, causing thus damage to the parties, or the enforcement is delayed until the verdict becomes pointless (such as the example of the case of unlawful dismissal from work – the case of Pavlina and Nikola Kamcevi (dating from 1996): Zanat Gradba Company case for compensation of damages for unlawful dismissal from work (dating form 2001); the case of Efto Eftovski, Gostivar regarding a civil law procedure about a debt (dating from 1999); the case of Blagoja Drobov regarding the enforcement of a temporary measure (dating from 1992).

The functioning of the Supreme Court and of the Constitutional Court was especially concerning in 2005. The Supreme Court did not manage to establish a uniformed, consistent practice, which would confirm its function as one of the fundamental guarantors of human rights and freedoms.

1. As a rule, the Supreme Court conducts urgent procedures and adopts decisions on the merits of cases when it adopts positive decisions regarding the state, (for example the case of Dimitar Arsov (dismissed from work as structural lay off against the ESM, in which the decision of the Supreme Court is a serious “blow” against the protection of workers from arbitrary and voluntaristic decisions of employers, that can thus claim any situation to be a situation of structural change, i.e. in this manner collectivistic measure are “making the big come back” instead of persisting on the reform path, i.e. consideration of each case on its individual merits.

2. When it comes to individual lawsuits (very often instituted by people in unenviable social and economic position, and which relate to pensions, welfare assistance or some other right of status, economic or age vulnerable groups of the population) the procedure lasts for several years and the court most often returns the cases for a retrial (which in the practice means endless going into circles). For example, the case of Sande Trajcevski, Bitola (which has been pursing a dispute for 17 years to acquire the right to old age pension); the case of Zlate Angelovski, Bitola (dating from 2002 regarding a disability pension); the case of Tomislav Docevski (1996); the case of Zivko Vrencovski (2003); the case of Miroslav Georgievski (2002); the case of Remzi Limanovski (2003);. In none of these cases the court applied the possibility of adopting a decision on the merits of the case despite the obvious delay of the procedure by lower courts.

3. In certain cases the decisions of the Supreme Court are impossible to even comprehend. Such is the case of establishing fatherhood in which the sterility of the “father” is not taken into consideration as a sufficient ground to allow a procedure for establishing the fatherhood. 

b) The Constitutional Court

The selective functioning of the Constitutional Court is even more concerning. Based its system position, which is of key importance for the control of the legislative function of the Parliament of the Republic of Macedonia, the Helsinki Committee has developed the practice of addressing the Court, and advising citizens to address the Court. However, with the change of the composition of the Constitutional Court (its equipping almost fully with political party soldiers) brought about the practice of the Constitutional Court under which if the issue regards the current political positions of the executive power, and if such positions would have repercussion on the adoption of a certain law- the Constitutional Court, as a rule, proclaims itself as not competent. The following applications of the Helsinki Committee were rejected in this manner:

1. Application regarding violation of Article 97 of the Constitution of the Republic of Macedonia (“The bodies of state administration in the fields of defense and the police are to be headed by civilians who have been civilians for at least three years before their election to these offices.“) in the case of the election of the Minister Siljan Avramovski (with the explanation that the election to the office of Minister is an individual act) which resulted as a possibility of electing next Interior Minister in contravention to the said Article;

2. Application concerning the Law on Ratification of the Agreement between Macedonia and the USA on Non-Extradition of US nationals. Thus the Court declared itself as not competent to consider, inter alia, the violation of the right to non-discrimination contained in this Law.

The Court shows retrograde tendencies of its functioning particularly in the area of implementation of the international human rights standards. Drastically, it showed lack of sensibility especially regarding cases related to rights of sexual minorities and the freedom of conviction:

1) The initiative of the Civil and Human Rights Center regarding the discrimination on grounds of sexual orientation in the Law on the Army Service was rejected (the Law equalizes “sexual abuse” and “homosexuality”, prescribing punishment for both issues as disciplinary violations). It should be noticed that despite such a decision of the Constitutional Court, the Government instituted a procedure for the amendment of this Article and in December 2005, with the amendment to the Law on Army Service the ground of homosexuality was eliminated;

2) The Court adopted a Decision rejecting the initiative for institution of a procedure for assessment of the constitutionality of Articles 5 and 8 of the Law on Religious Communities and Religious Groups (according to which it is not possible to establish more than one religious community of the same religion) by referring to Article 28 of the Rules of Procedure, according to which the Court shall reject the initiative if it has decided on the same matter already and there are no grounds to adopt a different decision. The Court did not use the possibility to reexamine its decision and even more explained its rejection with the correctness of this provisions contained in the Law on Religious Communities. According to the Court such a provision: “protects citizens from manipulations through division of followers of the same religion into several religious communities, which leads to legalization of schism of the Church”. Thus, instead of protecting the freedom of religion and the right to change the religion or conviction, the Constitutional Court protects the monopole of specific religious community on its followers.

The public debate on certain initiatives becomes a rarity in the operation of the Constitutional Court. This could even be acceptable if it were not for peculiar “phenomenon”. Namely, according to Article 70 of the Rules of Procedures of the Constitutional Court (Ruels of Procedure), the Court adopts a verdict when it considers the merits of the case / initiative, while under Article 71 of the same Rules of Procedure is adopts a decision quote: “when it does not decide on the merits of the case”. Therefore according to the Rules of Procedure the Decision cannot be an act of deciding upon the merits. Contrary to this, the Court adopted decision on non-institution of a procedure regarding the initiatives of the Macedonian Helsinki Committee, in which it presented substantive assessment of the harmonization of the disputed legislative provisions with the Constitution, which practically means verdict in which the Court decides on the merits of the case, without implementing first the necessary procedure.

The Constitutional Court shows lack of knowledge of international law (for example in the case regarding the so called “forced apprehension“. There, the Court established that “it does not constitute deprivation of freedom …. but …. “bring persons by force”. The references that it was contrary to the explanation of the European Court for
Human Rights according to which “deprivation of freedom is most obvious when the person is kept at the police by force “, and that Article 5 applies also “when the person cannot leave a certain place or is obliged to go to another place accompanied by an official person, i.e. when the person is not free to leave…” did not helped.
In the explanation of the acts of the Constitutional Court, there is an evident inconsistency as to whether and to what extent the decision of the Constitutional Court may be based on ratified conventions. For example, as regards the European Human Rights Convention, in some of its acts the Court considers that the provisions of this Convention can be just an additional argument of the Court, only regarding rights within its competence, while in some other acts the Court refers to other rights under the European Human Rights Convention regarding which the Court is of course allegedly “not competent". If it is clear that the competence of the Court is to decide on the conformity of regulations with the laws and on the conformity of the laws with the Constitution, and having in mind that international treaties are hierarchically above the domestic laws (in accordance with Article 118 of the Constitution), then there are certainly constitutional grounds to asses the conformity of the regulations and laws with the international treaties, which become integral part of the legal order after the entry into force of the laws on their ratification.

The problem of different solutions for identical or similar cases evident in the procedures before various regular courts, occurs in respect of the Constitutional Court in the form of evident differences in the procedure (and especially in the analysis of the national and international law) depending on which constitutional judge acts as the reporting judge. Just to illustrate, we note the following two cases: A) the Decision revoking the Decision on the adoption of the Detailed Urban Plan for the Urban Block 9- Urban Module 1 –Struga; and B) the Decision not to institute a procedure for the assessment of the constitutionality and legality of the Decision amending and supplementing the Decision on the adoption of the Detailed Urban Plan for the Settlement of Tasino Cesmice. In this manner, the possibility for equal protection of rights and freedoms of citizens is directly threatened, and the President of the Court (Mrs. Liljana Ingilizova Ristova), who signs the documents of the Constitutional Court, is directly responsible for the consistency of the procedures and equal application of the law.

c) The Ombudsperson (the People's Defender)

The Office of the Ombudsperson shows certain positive progress in terms of greater exercise of competences available to this institution under the Law on the Ombudsperson. However, the Helsinki Committee considers that this institution has still not assumed the position it should have in the promotion and protection of human rights and freedoms. The fears that the appointment of party soldiers to the leading position could impact the work of the institution, have proven to be justified to a great extent. 

1. The analysis of the Annual Report of the Ombudsperson for 2004 (published in March 2005), which was on the agenda of the Parliament at its session held on 18 May 2005, shows that this key institution in terms of human rights protection did not undertake a single concrete step for the recognition, promotion and protection of women’s rights, even does not reflect an interest (although there are areas that represent a novelty in the human rights protection: for example “protection of rights of military officers and military conscripts” or “protection of rights in the customs area”). With the exception of a single sentence in which there is an incidental mentioning of the threat of gender based discrimination, in the other parts of the Report there is not a single mentioning of women’s rights, no gender based discrimination, no activities regarding gender equality, violence against women, etc.

2. The Ombudsperson did not find it necessary to react to cases of large-scale violations of the voting rights in the course of the local elections. Having in mind that such violations were to the grater extent identified in polling stations where the dominant or majority community is the Albanian one and were related to the activities of the ruling party of the Albanian community – DUI (which party practically directly appointed the Ombudsperson), a question is raised regarding the objectivity of the work of the Ombudsperson and the ability to oppose violations of human rights and freedoms when it comes to violations perpetrated by structures of the ruling party of the Albanian community. In respect of elections, again the issue of threatened right to choice by women belonging to the Albanian community demonstrated itself as issue of extraordinary importance (which again did not prompt any reaction on the part of the Ombudsperson).

3. The dependence on the ruling party elite is indicated in the process of equipping the Office of the Ombudsperson. Despite the envisaged priority- work on the equitable representation of communities (starting with the composition of the Office of the Ombudsperson), the only proposal for change of the composition of Deputies to the Ombudsperson (after the completion of their mandate) regards Suzana Saliu (thus preventing her of a next, 8-years term). Considering the experience gathered through the work in the Office and the results achieved in the work, on one hand and the clear party opposition with the new Ombudsperson, a question is raised as to the motives for such a change and the consistency with the set priorities.

4. According to the insight into cases coming before the Helsinki Committee, the Ombudsperson Office, on several occasions, did not manage to fulfill tasks deriving from legal provisions. For example:

- the Ombudsperson considers the lack of a Government Commission which was supposed to be established and the work of which regards the fulfillment of certain requests of citizens is a sufficient reason for the non-enforcement of a court decision in the Durtanovski case;

- the Deputy-Ombudsperson in charge of children’s rights did not react to the obvious violation of children’s rights in the Ljubanci Dormitory (the case was registered and properly reported by the NGO "Rubikon", which worked in that Dormitory longer period).

5. The Helsinki Committee would like to point to the especially concerning inappropriate conduct of the Ombudsperson in cases regarding the freedom of conviction. Namely, in several cases related to the initiative for the establishment of a separate Ohrid Archbishopric (in parallel to the Macedonian Orthodox Church) the Office of the Ombudsperson did not find the strength to oppose the obvious violations of human rights by various state bodies. In this context, the following cases can serve as an illustration:

• the case of Jovan Vraniskovski, (who was sentenced to 2.5 years imprisonment for inciting religious and national hatred and intolerance);

• the case of Riste Ristevski from Prilep who is exposed to continuous pressures by the police, because his human help of the Vraniškovski followers;

• the nun Paulina Zajas who was deported from the country and could not acquire the right to enter the country for a longer period;

• the prevention of properly registering in front of the Police the change of the living address by the monk Sofronie for a longer period

• the direct attacks to which the followers of Jovan Vraniskovski are subjected to (destructions of facilities, threats, attacks on private houses).

In some of the cases (particularly nun Paulina and monk Sofronie), where the Ombudsperson could not trace human rights violations, the very state organs (after the Helsinki Committee's interventions) changed their previous, negative decisions. 

IV. VIOLATIONS OF SPECIFIC RIGHTS

In 2005, specific rights were violated (or groups of rights) which are of extraordinary importance for the development of democracy, i.e. which relate to certain vulnerable groups that are most threatened in terms of protection of their rights and freedoms.

1. Freedom of Expression

There were no significant changes of the situation in the area of freedom of the media, as compared to 2004. At the beginning of the year several media outlets in the Albanian language temporarily ceased their operations (the daily newspapers Fakti and Koha Ditore), while the weekly "Lobby" is still not published. The oldest newspaper in the Albanian language, called Flaka, ceased to be published as of November 2004. In a certain period this newspaper was considered to be very close to one of the ruling parties (owned by people close to DUI) and despite the announcement that it would be again published, it did not appear until the end of the year. This impoverished to a great extent the media informing in the Albanian language and raises the question of independence of the media (which through the activities of the political party leadership can easily be brought in economic constraint). It is evident that media outlets which have their headquarters in Kosovo dominate among the printed media in the Albanian langue in the Republic of Macedonia.

The Macedonian Radio and Television remained the tool of the ruling parties. This was most evidently manifested for example through the quantitative presence of certain political parties with their statements, conventions and other types of events in the context of the TV and radio time slots; then in the lack of reaction (silence) about events organized on the Day of the Albanian Flag; as well as in the rejection to equally treat the religious communities and religious groups (refusing to broadcast the oral message on the occasion of Easter given by a registered religious group (Pre-Christian Community), as different from the extensive presence of the Macedonian Orthodox Church in respect of all religious holidays and other events related to the activities of this Church.
The media did not manage to profile themselves as independent from political influence, not offering substantive analysis and objective information. Some of the printed media continue to nurture their “weakness” towards certain columnists. The selectiveness in this approach is especially evident. The editorial staff of certain daily newspapers did not react to obvious hate speech and open most vulgar offenses, coming from certain “privileged” non-journalists columnists, while on the other hand opposed open argumented criticism presented in individual positions and views, when the criticism was addressed against some of the politicians, who continually usurp the space intended for the public.

Although transparency in the work of state bodies or the so-called public authorities, among which the Government and its bodies at the central and local level, is one of the basic (declarative) postulate of their work, this is not confirmed in the practice. In 2005 too, the Law on Access to Information of Public Character was not adopted, which of course leaves room for the authorities to manipulate the information. In January 2006, in the daily newspapers, several non-governmental organizations, among which Article 19, Open Society Institute, Pro Media and Transparency Macedonia addressed a letter to the President of the country, Branko Crvenkovski, to the Speaker of the Parliament, Ljupco Jordanovski, and to the Prime Minister of the Republic of Macedonia, Vladimir Buckovski, in which they expressed concern with the deficiencies in the new draft of the Law on free access to information. The attempt to adopt a Law which is evidently criticized by the journalists, by the non-governmental sector and experts only confirms such a conclusion. 

A positive step forward in the area of informing is the adoption of the Law on Broadcasting.

On several occasions in 2005, the Criminal Code adopted two years ago, was issue of discussion, in which respect journalists requested decrimenalization of certain crimes (libel and offense). The debate was conducted also upon recommendations from the Council of Europe. The requested amendments were not adopted, and last year was featured with several court cases exactly on grounds defined in the said two articles. Freedom of information and independence and objectivity of the media are put under question through the practice of hasty and smooth adoption of verdicts (even when it comes to prison sentences) against journalists because of published (even true) information, and there was lack of reaction to open threats and pressures coming from the authorities and the ruling parties against journalists. The last such example is the case of the open and disguised threats to which the Focus weekly newspaper is exposed to (after publishing an article in which there are suspicions expressed regarding the veracity of the presented property status of the President of the state, Branko Crvenkovski and the former Prime Minister, Hari Kostov). In this last case, the announced lawsuits against forgery were replaced with libel lawsuits (which according to the hitherto experiences court usually judge in favor of the plaintiff, when it comes to plaintiffs with political background. A bit confusing element of this case is that President Crvenkovski did not proceed with the private lawsuit against forgery, as of the moment the Public Prosecutor’s Office had not instituted an ex officio procedure.

The most drastic example of such lack of interest is the silence of the Association regarding the case of Raimonda Malechka. According to the verdicts of the first instance court, female journalist from Albania and her father were charged and convicted for preparation of terrorist activities by: filming trenches, bunkers, dug-outs, and filming armed persons dressed in military uniforms that were demonstrating how the arms were used, demonstrating range shooting, as well. The Court of Appeals returned the case for a retrial with the explanation that “the description of the activities does not point to a preparatory action for perpetration of the crime of preparation of a terrorist attack”. According to the Court, the verdict is “unclear and incomprehensible” and there was no link established between the activities and the offense for which the persons are indicted. The Primary Court did not change its mind, and repeated the verdict, sentencing them to five years imprisonment each for preparing "Terrorism"6 . Journalists and non-governmental organizations working on human rights protection did not or reacted mildly to all of this, while the public showed no interest at all.

The association of Journalists did not act as a body to take due account of the freedom of information and protect journalists in cases when this freedom is limited. Even, they did not have current data on the number of court cases instituted against journalists in 2005. However, in the talks with different editors in chief, the Committee received information that there was virtually no media outlet without a court procedure (most often these are libel cases). Here are some of those cases as presented by the journalists themselves or their editors in chief:

The Member of Parliament, Stojan Andov, won the case against the journalist of the Utrinski Vesnik newspaper – Sonja Kamarska. The Court of Appeals confirmed the fine of 24.000 denars and the courts expenses, while the journalists submitted an application to the Public Prosecutor’s Office for annulment of the verdict.

Jadranka Kostova - journalist at the Focus weekly newspaper, lost the court case instituted upon a lawsuit by Vanco Muratovski, leader of the Trade Unions of Macedonia7 . The Court decided in favor of Muratovski and the journalist Kostova paid 20.000 denar fine for the offense. In her column in the Dnevnik daily, she wrote a satirical comment about the general strike announced by Muratovski which was never held. Kostova says that she did not have a fair trial, since she was not allowed to call upon witnesses, and the judge explained this with the words “no witnesses are necessary since it is obvious that Muratovski feels offended”. Kostova announced that she would file an application to the Human Rights Court in Strasbourg.

Lile Gorgieva - journalist at the Sitel TV Station – case of libel instituted upon a lawsuit by Dusko Pavlovski MD, pediatrician from Kratovo. In July and in August 2003 there were four segments broadcast, prepared by the journalist Georgieva, about death cases with children treated by MD Pavlovski. The segments contain statements by the children’s parents. The lawyer of the plaintiff, Ratko Gorgievski claimed during the court procedure that the parents had given the statements when they were drunk. The judge- Aneta Arnaudova (Skopje I First Instance Court) did not accept any witness proposed by the defendant Gorgieva. On 4 July 2005, the court punished the journalist with the maximum penalty for the crime of libel - a fine of 63.500 denars. The defense lawyer of Gorgieva filed an appeal. The journalist Gorgieva stated that the problem was that MD Pavlovski was the President of the Municipal SDSM Unit in Kratovo and took advantage of his political position, coupled with the outrageous conduct in the course of the trial by the lawyer of the plaintiff – Ratko Gorgievski, husband of the Minister of Justice - Meri Mladenovska Gorgievska.

Ida Protuger - journalist at the Kanal 5 TV station for libel in the case of Eurostandard Bank. In 2005, this journalist was convicted to three month prison sentence, 1 year parole sentence. Currently the verdict is appealed against at the Court of Appeals. In her report on the intention of the Bank to take over another Bank (the Postal Bank) the journalist used information published in the Vecer newspaper and at the Eurostandard webpage. The Court did not take into consideration the material contained in the newspaper articles and said that internet data cannot be used as evidence since they are not certified. The Court did no accept as evidence the documents confirming the ownerships, i.e. the percentage share of Trifun Kostovski in the Bank. This case of libel is based on the fact that the report of the journalist was broadcast with the writing Kostovski's Bank in the background. This is a serious pressure on the freedom of journalism, stated Ida Protuger in connection with the court procedure. The Court requests from us to have every information certified with the Notary Public. What type of journalism is that, asks the journalist.

In this respect, the Helsinki Committee would just turn the attention to Article 176 of the Criminal Code according to which:

(1) No sanction shall be applied against a person who behave insultingly towards another person in a scientific, literary or artistic work, in a serious piece of critics, in performing an official duty, journalist, political or some other social activity, as defense of the freedom of public expression of thought or other justified interests, if it can be concluded that from the manner of expression or from other circumstances, this does not have the meaning of an insult or that its had not caused a significant damage to the honor and the reputation of the person.

(2) In the cases from item 1, a person shall not be punished who expresses or spreads about another that he has committed a crime which is prosecuted in line of duty even though there is no sentence that has come into effect (art. 172/5), if he proves that he had grounds to believe in the truthfulness of what he expressed or spread.
The purpose of this Article is exactly to prevent making pointless the idea of the control function that the media should have over the holders of offices and people in power that can take advantage of their position in a manner that would limit or violate the right of others, i.e. lack of sanction for such a violation. The serious, argumented criticism, presenting indications regarding certain problems, raising questions and the request that questions are answered must not be stopped. If not, journalists will be turned into spokespersons for certain ruling structures which limit the information to officially issued press releases and speeches of high ranking officials. This activity is better known as state censorship.

2. Refugees and internally displaced persons

After 7 years of the Kosovo conflict and 5 years after the conflict in the Republic of Macedonia, there are still a certain number of refugees and internally displaced persons in the Republic of Macedonia.

The situation of refugees and asylum seekers, according to the information of the Sector for Foreigners and Immigration Affairs at the Ministry of the Interior is the following:

Status	Sept. 2004	March 2005	Oct. 2005	CHANGES 2004/05
Recognized Refugees	19*	12	37	+ 18
Asylum on humanitarian grounds	809	1160	1270	+ 461
Rejected applications	209	358	521	+ 312
Stayed Procedure	199	238	357	+ 158
*To be completely processes	1097	274	151*1	- 949 (=946*)

* Plus three Roma (?) / *1 of which 64 applications of 2003 //

Perhaps there would not even be a problem if all changes were not de facto from 2004, i.e. according to the information received from the Sector in 2005 there was not a positive decision adopted regarding any of the applications for refugee status.

Reminder: In accordance with Article 27 of the Law on Asylum and Temporary Protection “…the decision for recognition of the right to asylum has to be adopted within two months from the day of submission of the application…”. Considering such statistics, 613 persons “disappeared" or have voluntarily returned to Kosovo. As regards the voluntary return of persons to the territory of Kosovo or to the territory of Serbia, the Sector does not have exact numbers, since this part of the assistance and organization is managed by the UNHCR and the American Refugee Committee.

Taking into consideration that the bare fact that violence has ceased after armed conflicts does not mean that the country is safer, especially for those that have been persecuted; furthermore, a post-conflict society is very often divided, without developed infrastructure and sustainable economy, and it is certain that the usual situation of human rights and freedoms is not at a satisfactory level that ensures appropriate conditions for voluntary repatriation. This is best confirmed with the a) Report of the Secretary General of the United Nations Mr. Kofi Annan, presented on 24 February 2005 before the UN Security Council (8) warning not only that the “Kosovo standards” are not completely fulfilled, but that the situation of minorities is concerning and b) regular reports and appeals by the Ombudsman of Kosovo to the European countries regarding the insecure situation in Kosovo, appealing that they reexamine their polices in respect of the return of the Roma and Aeshkali.

During 2005, the authorities did not manage to appropriately resolve the problem of internally displaced persons8 (from Aracinovo and the Kumanovo Region). The activities of the Ministry of Labor and Social Policy, throughout the year, were contrary to the international law in this area. Contrary to the primary duty and responsibility of the competent bodies to establish conditions and ensure funds, which would enable the internally displaced persons to return voluntarily to their homes, in safety and in dignity, with several of its actions and especially with the practice of forced deregistration, the Government opted for means of coercion, allegedly resolving the problem.

In several cases, the Ministry of Labor and Social Policy, issuing a Communication, revoked the status of internally displaced persons, with the explanation that the status of internally displaced persons and the benefits that they had been using that far would cease and the persons would be deregistered, since the Ministry had received an official note from an “authorized” body ( The Public Security Bureau at the Ministry of the Interior) in the country, in which it is stated that the concerned person had an apartment where the person lived or that the concerned persons had sold their property in the place of displacement or had other means to resolve the housing problem.

By this the Ministry has committed (at least) two violations of the law:

1. The Ministry of the Interior is not the body competent to give information related to immovable property (Article 14/1 of the Law on Measurement, Cadastre and Registering of Immovable Property envisages that in respect of all relations for which data on the immovable property are required, state and other bodies are obliged to use the data entered in the Cadastre of immovable property);

2. The time the acts were adopted (the Communication on deregistration of 15 February 2005, based on an official note received from the Bureau, submitted to the Ministry on 26 April 2005.)

With these activities the authorities have once again confirmed the position that they are not prepared to assume full responsibility regarding the events that have lead to internal displacement, and for the alleviation of the consequences, i.e. creating real conditions for voluntary return of part of the displaced persons. The latter implies not only reconstruction or construction of housing, but also of all accompanying facilities that enable business activities and life in rural areas (that were also destroyed in the conflict). The Helsinki Committee turns the attention to the fact that refugees and internally displaced persons are people that have experienced difficult moments not on their fault and therefore the authorities must take due account not only of their existential needs, but also of their fears from the experienced traumas being repeated. Hence, the authorities are to search such lasting solutions that would not place these people in a situation even similar to the one from which they have fled.

3. Freedom of belief

In connection with the respect and protection of the freedom of conviction and religion, 2005 was marked with the Vraniskovski case. The state and all its institutions in this case acted as exponents and protectors of only one religious community ( the Macedonian Orthodox Church), raising its interest and problems at the level of national and state interests.

The prohibition to establish more than one religious community of the same religion (Article 8 of the Law on Religious Communities and Religious Groups) represents limitation of the freedom of conviction of citizens. This provision of the Law was taken advantage by the state and its structures to directly interfere with the case related to attempts to establish a new religious group – Orthodox Ohrid Archbishopric (OOA), on the territory of the Republic of Macedonia. With their undertaken action, the state institutions openly participated in the violation of several basic rights (the right to religion, the right to expression, the right to privacy, the right to free movement, and the right on fair trial). Jovan Vraniskovski is the promoter of the idea for establishment of OOA, who according to the verdict of the Bitola First Instance Court, adopted on 26 January 2004, confirmed on 22 June 2005 was proclaimed a person inciting religious hatred and intolerance, sentenced to 2.5 years imprisonment.

The violation of several basic rights was the result of activities of a number of state institutions (especially the Ministry of the Interior) directed against not only the followers (monks of the MOC who were supporting Vraniskovski), but also against citizens who approve of him or had compassionate sentiments or attitude towards them. This can be illustrated by the following: problems upon entry and exit from the state, threats, police detention, lawsuits against citizens who have provided housing for the outcast monks, police ban in the exercise of the right to residence.

The conduct of the state leadership of the Republic of Macedonia and of the Republic of Serbia was indicative indeed, especially the chosen way how to “manage” the dispute between the two national Churches (Macedonian Orthodox Church and the Serbian Orthodox Church). Some of the activities could be perceived as opposite to the principles of a secular state.

Different from the active (and unconstitutional) actions of the state in the case of Vraniskovski, the state was passive and did not undertake the relevant legally grounded measures in the cases of violence at the Islamic Religious Community. In 2005, the relations in the Islamic Religious Community escalated, which partially started before the month of Ramadan (2004). The pressures started in the Skopje Mufti Office, where a group of imams requested from the Head of the Islamic Religious Community, reis-ulema Emini, to dismiss the Skopje Mufti - Zenun Effendi Redzepi. The situation escalated to physical conflicts, so that in the course of the summer, the Head of the Islamic Religious Community was forced to resign. In light of the fact that the following activities to find the way out failed, the Head of the Islamic Religious Community Arif Emini resigned, and a replacement was appointed to perform the offices until the end of 2005. In this case, the state did not intervene in a manner in which it would prevent the violence and did not detect the attackers of several imams.

The state did not also protect the freedom of conviction in respect of the problems faced by the Bekteshi Religious Community, and a series of other smaller religious communities in the Republic of Macedonia (which cannot obtain construction license for construction of religious facilities, then they are subject to unequal treatment by the state media - the Macedonian Television, and they are openly attacked by priests of the Macedonian Orthodox Church and its followers). Furthermore, very much different from the actions of the state in the Vraniskovski case, the state is completely passive when it comes to open incitement of religious hatred, such as for example the Sekirnik case. Physical attacks, threats and open ban on the construction of a catholic church (greatly encouraged by Orthodox Church priests from that region) did not represent sufficient grounds for the state to apply the well known article of the Criminal Code. Such developments did not prompt the interest of the Commission for Relations with Religious Communities as well.

In terms of the legal framework, the draft Law on Religious Communities completed in 2005 only legalizes such a position of the state towards various religious communities and legitimizes the special position of the Macedonian Orthodox Church vis-à-vis other religious communities. The draft maintains the provision of Article 8, while the Commission for Relations with Religious Communities (with unchanged competences) which in the last years (including in 2005 with the statements of the new President of the Commission) has openly represented the interest of the Macedonian Orthodox Church. The solutions offered in this draft Law do not address at all a series of problems, which smaller religious communities and religious groups face on the territory of the Republic of Macedonia (acquiring construction licenses, denationalization of property, construction of new facilities, and procurement of literature, organizing lectures and inviting lecturers.)

In the last period, the lack of action on the part of the Ombudsperson has been indeed concerning. Despite the institutional obligations to react, the Ombudsperson did not react in any of the above referred to cases. This fact, as well as the fact that the police was actively instrumentalized in the case of Vraniskovski, and passively in the case of the Islamic Religious Community, the conduct of other state institutions (the Declaration of the Assembly in support of the Macedonian Orthodox Church, January 2004) and the verdicts of the competent courts clearly and unequivocally speak in favor of de-secularization of the state.

In such a setting, there should be mention of the unacceptable lack of action and/or disagreement of the non-governmental sector in the country, especially the NGO’s active in the human rights protection area.

Without any tendency to dispute the right of the Macedonian Orthodox Church to identify itself as the national church in the context of the remaining orthodox world, the Helsinki Committee considers that it cannot be allowed and accepted that the state and its institutions and instruments are involved in church matters, in the name of ensuring exclusivity of the orthodox religion in the country. Engaging in such conduct, the state participates in the promotion of ethnophyletism (church nationalism), which on its part means disputing the national identity of all those citizens of Macedonia who are not affiliated with the Macedonian Orthodox Church and furthermore represents direct threat against: the freedom of conviction and once again the secular character of the state.
Therefore, such actions or lack of action of the state institutions of all pillars of power is an explicit violation of the provisions contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights- signed and ratified international documents, with appropriate obligations and guarantees of the right to one’s religion, conviction, the right to practice religion, the right to own property, privacy of the home, the right to housing etc.

In terms of the freedom of conviction, the positioning and the role of the Commission for Relations with Religious Communities and Religious Groups is especially concerning. The new Law and in the context of the already mentioned budget priorities this Commission has profiled itself as a protector of one religion. The Helsinki Committee considers that the Commission should either be abolished completely or be designed in a quite different manner that would ensure further work in the direction of developing the freedom of conviction, which according to Article 9 of the European Convention on Human Rights implies the right to change one’s religion or conviction.

4. The rights of national and ethnic minorities

In 2005 too, the changes in the area of national minority rights are primarily related to the promotion of collective as opposed to individual rights and were greatly limited only on the rights of persons belonging to the largest ethnic minority (the Albanian one). Ultimately, such an approach leads to de facto abandoning the concept of multiculturalism and the concept of a bi-national state is gradually promoted. Smaller ethnic and linguistic communities encounter large number of problems in exercising these right under the promoted bi-national relations. The Helsinki Committee considers that the ratification and implementation of the European Charter for Regional or Minority Languages will greatly contribute to maintain the multicultural character of the state and to the protection of cultural diversity of languages which are traditionally used on the territory of the Republic of Macedonia.

It is especially concerning that last year the several year trend of division along ethnic lines and diminishing number of places for contacts, communication and togetherness continued. 

This process is most evident and measurable in education (decreased number of primary and secondary schools with mixed composition, separation of the higher education, separation of the post-graduate studies). The result of such segregation is decreasing communication among the young generation, growing lack of knowledge of the language of the majority population, and exceptionally rare knowledge of the languages of the minority population, physical separation of the facilities (housing facilities, coffee shops, shops, markets). As an early warning, the Helsinki Committee considers that the dimensions that the segregation in society starts to acquire should be taken into consideration.

Not only the state, but much wider the society, more and more fosters the loyalty to one’s group-ethnicity, which is completely contrary to the envisaged commitments to multicultural civil society, in which the basic value is understanding and respect for differences in the diversity sense, and not in the difference sense, in terms of building plural collective identities, and not monolith and closed communities which are mutually completely exclusive. Taking into consideration that the borders between ethnicities are socially established and by definition much narrower from the confines of the cultural differences the only way that they are maintained, nurtured and strengthened is the position of power – politics. Such socially dimensioned area (huge communication deficit among ethnic communities in Macedonia) makes it possible for the political leaders to justify their claims, allegations and actions with the cultural and national differences, enabling the political elites a well to continuously have wider room for manipulations in the fight for power, in maintaining the power and its practicing, with very often detrimental consequences for all citizens. In such conditions, the only place where communications is realized is bodies of the state and local authorities (which raises the issue of the political-party manipulations which is thus enabled).

The Roma community remains the community that exercises its rights to the least extent. In terms of education, there is still large number of children dropping out from primary education (although primary education is obligatory, no one is held responsible for such a situation), and there are no significant changes in the coverage of children from the Roma community with secondary education. There is a huge number of persons –beneficiaries of welfare assistance (Roma have a 2.66% share in the total population in the Republic of Macedonia, while they use 12% of the Social Protection Fund). Still the state has not proposed measures to improve such a situation of the Roma. Regardless of the principle of non-discrimination and equitable representation of persons belonging to the communities in the public administration and public enterprises, there have been changes made with all other communities, with the exception of the Roma community, where its participation share is only 0.53% and nothing has been done to improve such a situation.

5. Trafficking in human beings and human rights of victims

In 2005 also, the policy of the Republic of Macedonia for fight against trafficking in human beings remained insensitive to two key aspects: the human rights aspects for the victims of trafficking in human beings and the gender aspect of this problem (according to the IOM information, 99.73% of the victims are women). 9
„Observation by the OSCE field missions suggests that not all women are brought to the shelter. Moreover, as the shelter takes only those victims who are willing to return in their country of origin, trafficked women who do not want to take part in the IOM program have no choice but to be deported. Internally trafficked women and children are not identified at all. Victims of trafficking often refuse the assistance available at the Transit Center or do not seek help at all, fearing repatriation, deportation and public condemnation in their countries of origin, that is facing again all problems that led in the first place to their having been trafficked: poverty, discrimination, small education and job opportunities.“10

As regards the victim’s rights in the court procedure, the analysis of the practice of domestic courts shows that there are serious difficulties. There are evident difficulties in the exercise of the right to damage compensation. Despite the fact that in 2005, in 73% of the court cases,11 the victim is not only a witness, but also a damaged party (has applied properly legal claim), out of 15 completed cases regarding the crime of mediation in prostitution and trafficking in human beings, none of the claims for non-material damage has been realized.12  Furthermore, there have been several cases of limiting the right of the damaged party to propose new evidence. As regards the right of victims to protection, the special manners of examining witnesses by the court (out of the court room) are no applied. There has been only one case in which videoconferencing has been used to hear a witness, while the persons charged and the public could not see the videoconference - they could only hear the victim. In none of the cases, the court council decided to order the indicted out of the court room. In one of the cases the security officers of the victim have been even asked to leave the courtroom upon the request of the defense lawyer, although the hearing was public. In cases when the victim is a witness, most often the victim has not been advised of the right not to answer certain questions (which is obligatory according to the law), and there are indications that the witnesses are not informed about the right of non-presenting personal data.

The lack of applicable legislation on witness protection, in certain cases, prevents the presence of victims during the court procedure. In one case, the five damaged foreign nationals were not present in the course of the hearing, since they had been returned to their countries, after they had threatened that they would cut off their veins. It remains to be seen whether the situation in terms of witness protection will be changed with the Law on Witness Protection (May 2005), which is to be applied as of 2006.

Other indicators of the inefficiency of the penal policy of the Republic of Macedonia with reference to human trafficking are: duration of criminal procedures; excessively lenient position of courts in deciding on the punishment, rare use of the provisions on confiscation or property or criminal proceeds, and non-publication of verdicts. This is coupled with the lack of transparency of the Ministry of Justice and the Ministry of the Interior (which in 2003 stopped publishing data on registered cases). Hence, the impression that the entire policy of the Republic of Macedonia for fight against trafficking in human beings is in a dead-end.

6. Human Rights of Drug Users

In 2005, the trend of systematic violation of human rights of the vulnerable group of drug users continued. The Government did not adopt the long announced and single regulation on drugs, nor did it adopt the National Strategy and Action Plan.

There were no concrete steps undertaken either for the protection of the personal dignity of the drug users. On the contrary, in the Republic of Macedonia certain terms are continuously used to stigmatize these persons (junkies, toxic users) exactly on the part of state institutions in charge of the fight against stigmatizing this group.

The stigmatization of the drug users is legitimized with the obsolete legal terminology which is still in use. For example, the Criminal Code, the Law on Misdemeanors and the Law on Execution of Sanctions still prescribe the security measure of “compulsory medical treatment of alcoholics and drug abusers” (contrary to the principle of voluntary treatment). This legal category practically legitimizes the stigmatization, by the use of the of the term “drug abusers” which is no longer used by the World Health Organization.13

Although the Ministry of the Interior still talks about “drug abuse” as a socio-pathological occurrence, at least in their official press releases they do not use the term “drug abusers”. Yet, on the other hand the Ministry makes systematic efforts that all those who are suspected of possession or use of drugs (mostly for use of marijuana) be “diagnosed “as “drug addicts”. Unfortunately, the treatment of the Ministry of the Interior regarding the drug addicts is not a treatment of persons in need of medical care, but a treatment of serious criminals.

The results that the Ministry of the Interior presented to the public in 2005, lead to the conclusion that the fight against drugs in the practice is more focused on the “persons enjoying narcotic drugs” and not on traffickers and producers. The statements of drug users, deprived of freedom indicate that the police do not exercise due consideration regarding the measures for protection from torture and inhuman and degrading treatment when the police have grounds to suspect that drug related misdemeanor or crimes have been committed. Persons deprived of freedom are not at all informed (or are insufficiently informed) about their rights, they are most often requested to sign a statement that they give up their right to a defense lawyer, and the right to adequate medical treatment ( a doctor of one’s choice) is not regulated even on paper, let alone in the practice. There are indications that in many cases their sensitive health condition (conditions of abstinence crisis) and their social situation (potential or current victims of social exclusion) are used to extort confessions or to secure evidence in the procedure against the drug users themselves or against other persons.

In addition to the rights after deprivation of freedom, the police procedure mostly affects the following, as well:

- the presumption of innocence ( the police most often treats the persons in contact with drugs as perpetrators of punishable acts, and not as persons who are innocent until proven guilty with a legally valid court verdict);

- the right to privacy ( the police only provisionally protects this right in the reports to the public, and the searches of homes and persons without presenting a court order are almost the rule, and not the exception);

- The right to non-discrimination and equality before the law (discriminating attitude, and unequal treatment of drug users, compared to other petty offenders);

- The right to court protection from unlawful deprivation of freedom (lack of efficient mechanisms for court protection, in which both judges and prosecutors fail);

- The right to appeal and complaint (inefficiency of the internal control of the police, which in such cases as a rule ends its information with the phrase: “the person enjoys drugs and has a long criminal record”);

- The right to efficient court protection from torture and inhuman and degrading treatment (neither the procedures, nor the judges pay serious attention to cases when the drug users claim their have been subject of torture and/or inhuman and degrading treatment).

Unfortunately, it is not evident at all that the Ombudsperson undertakes any special measures to protect the rights of drug users in police procedure (as a vulnerable group), which is additional indicator of the consideration given to this group of people with special health problems.

13  The attempt to keep at any price the use of the term “drug abusers” can be confirmed by the tendentious translation of the term “drug addicts” of Article 5 of the European Convention on Human Rights, which has been translated with “drug abusers”.

As regards the right to health care, in 2005 a significant progress was made in terms of enlarging the capacities for treatment in daily outpatient clinics; (decentralization of the methadone therapy program). However, if the data of the Ministry of the Interior (accepted by the State Health Protection Institute) are accepted as valid, it turns out that very little number of the “addicts” subject to police treatment has the opportunity to be subject to medical treatment.