Bimonthly Report (June – July 2010)

1. PUBLIC EVENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Backwards Democracy

1.2. Who is stronger in the state – the party or the rule of law?

1.3. Barrier for the new religious communities

1.4. Social security – forgotten right in Macedonia

1.5. Disciplinary penalty for professional soldiers

1.6. Hate speech

2. POLICE AND COURT CASES

2.1. The case of Faik Belani, Skopje

2.2. The case of Robert Popovski – Bad delivery or judicial game?

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1. PUBLIC EVENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Backwards Democracy

In the hot summer months, in which as by rule there are no political events, this year the politics seemed to reminds us almost on a daily basis how far we have gone in our endless transition, where instead of going forward we are moving backwards.

The incident in the Parliament of the Republic of Macedonia on July 1 is a hardly conceivable event even for totalitarian regimes. At least, they are concerned with the format.

When in the Annual Report for 2009, released in June this year, we said in the introductory text that the “the range of power of governing elite is to be wrapped up with some kind of “military coup” on democracy by “controlling” the legislative, executive and judicial power, a process that will marginalize to absurd dimensions the legal state and the rule of law and therewith the human rights and freedoms”, we did not even assume that the current executive power will soon afterwards demonstrate in a highly arrogant manner that all it wants is everything to be under its control.

The incident showed once again that in the eyes of the executive power, the parliament as legislative power, which by nature should be above it and should function as its controlling mechanism, is not worth a penny. It went even one step further from the obedient control over its MPs to threaten the deputies from the opposition bloc. It was simply demonstrated that “those that have to exert control – are being controlled” by the “big cousin”[1].

There is a clear legal provision on the internal security of the Parliament[2], so the entrance of police officers, without prior approval, is simply an intrusion. The recording of what is going on inside the assembly or video surveillance controlled by the MoI is unauthorized filming of parliamentarians, done by officials (on top of this, upon order of the Minister of Interior), which in the least is violation of articles 10 and 11 of the Law on Protection of Personal Data, according to which every person whose personal data is processed must be notified about that.[3] The abuse of personal data is a crime pursuant to Article 149 of the Criminal Code. So, in our body of evidence showing that we are police state we have only added the relation between the police and the parliament.

In the events surrounding the incident, other things happened which are indicative of the treatment of the Parliament and its members, such as invitations for the MPs to come to the police station for a talk, threats to the MPs that they will be brought to the station to make a statement in the pretrial… Unfortunately, the lessons of the Minister of Interior, Gordana Jankulovska (statements, letters, telegrams) are not only lack of “domestic upbringing and culture”, but also an arrogant political behavior (clearly evident in this and other sections of this reports).

At the end, the attempt to settle the case inside the parliament shows that all efforts of the assembly to face the painful truth of its real status in the state are only pipe dream, while the institute of interpellation is redundant at this moment on our political scene.

The disrespect for the Constitutional Court and its decisions by the ruling authorities continues.[4] The project “Skopje 2014” according to the constitutional judges has the same destiny as the series of other misfortunate projects, solutions and goofs of this Government (introducing religious classes in elementary schools, external evaluation, few laws…)

The supporters of the project responded as expected (statement on who controls the Constitutional Court, sending letter by the Prime Minister, intentions for derogation of the constitutional position of this Court by the request of the Chairman of the Assembly, Trajko Veljanovski, sent to the President of the Constitutional Court Dr. Trendafil Ivanovski to attend a parliamentary session focused on MPs questions and to defend its work, the proposal of MP Blagorodna Dulic to take away the right of the citizens to file initiatives in front of the Constitutional Court…). However, this time, instead of making comments the government decided to ignore the decision of the Constitutional Court. The Municipality of Centar announced that it will respect the decision of the Constitutional Court “post festum” in the future amendments of the Urban Plan of the municipality and in the meantime it will continue to build as if nothing happened. Culture Minister and Prime Minister did not get excited, so after evaluating the decision of the Constitutional Court, they gave priority to the building permits![5]

Acting formally upon the decision of the Constitutional Court and pursuant to Article 24 of the Law on Spatial and Urban Planning[6] and Article 50, item 16 of the Law on Local Government[7] and Article 36 paragraph 1 item 16 of the Statute of the Municipality of Centar – Skopje[8], the mayor of the Municipality of Centar has notified the public that there will be public presentation and poll on the amendments and supplements to the urban plan of Skopje’s downtown, the so-called “Small Ring”.

This would have sounded like very positive information from the Centar Municipality, unless several “details” caught our attention. This procedure has violated paragraph 5 of Article 17 of the Law on Spatial and Urban Planning, stipulating that the participatory body should be comprised of representatives of the Municipal Council and the municipal administration, as well as experts of urbanism, associations of citizens and residents of the municipality. The placement of like-minded persons and party soldiers in these bodies does not mean conformation with Article 17. On contrary, the lawmaker has foreseen this in order to provide for pluralistic thinking. In addition, paragraph 6 of the Article 24 of the Law on Spatial and Urban Planning stipulates that after the public presentation and poll, the Commission should submit report on the accepted or rejected comments to the Plan by the citizens. If this is so, then it is not understandable how the same, unchanged, urban plan publicly presented, having in mind the reactions of the citizens, associations of citizens, the experts, beaten students and many more after the first presentation of this plan, which was also disputed by the Constitutional Court (Association of architects and urban designers on the security risks and inappropriate architectonical solutions; associations of citizens on the unacceptability of exclusive solutions in multiethnic and multi-confessional society that may generate conflicts). On the top of all was the public presentation in inadequate conditions (an office) in the middle of the summer holidays, lasting only 12 days.

The decision of the Constitutional Court to repeal the solution on amendments and supplements to the curricula of the primary nine-year education foreseeing the students from the non-majority ethnic communities to start learning the Macedonian language in the first grade was labeled by the Minister of Education and Science as “weird” and as a lawyer he provided an invalid explanation that the Constitutional Court had no right to repeal a single administrative act.

Evidently, this Machiavellistic way of insisting on one’s own agenda, against the will of the citizens, only deepens the mistrust in the institutions of the system. It seems like they want to cement the position that “nothing can be changed unless this is approved by the ruling party”. A message is sent to everyone that whatever they want to do they will fail because someone from the top said so. The citizens are passivized. They should not think about anything, because someone has already thought of that.

The detention of the president of the association “Pelagonija-Obnova”, Dusko Ilievski (and two members of his family) is probably the freshest school example of the unnecessary deprivation of liberty and abuse of the detention as a measure. Having in mind all the circumstances surrounding the activities of Ilievski and everything that previously happened to him, particularly the relations with the police, it is clear that this was just a way to “discipline” and dismay the leader of the farmers.

The ground for this (allegedly they planted Cannabis, cultivated and watered the plant with an intention of illegal production and trade of narcotics) had melted down after the numerous testimonies that wild marijuana grows all over Pelagonija (an irony is the fact that the marihuana appeared again on Ilievski’s land while they were in prison, although the policemen uprooted marijuana plants after the arrest).

The association of Pelagonija’s farmers, chaired by Dusko Ilievski, is well-known to the public for its commitment to bring justice to the farmers from Pelagonija and reliable information on what happened with their money from the famous milk factory “Swedmilk” and what was the role of the current government in creating the myth of this foreign investment, to which many milk producers have fallen. A year ago his family house was searched in a bid to find illegal weapons, an operation which ended with discovery of the “trophy” family hunting gun and taking away the license for possession of weapon from Ilievski. On this occasion Ilievski said: “Every public reaction of Pelagonija farmers is followed by police pressure on me”. In fact, with the “marijuana case”, Bitola prosecutor’s office has tried to transfer the “hot potato” to the Department for Organized Crime in Skopje’s Prosecutor’s Office, which proclaimed itself as incompetent. At the end, Bitola’s court has repealed the detention.

The case is also interesting because of the statements made by the Ministry of Interior, substantiated by the statements of the Prime Minister who in the pretrial procedure spoke of the cultivation of marijuana in the given case. We also had an example of establishing an instant NGO for defending party purposes.

The duty of the media is to convey information to the public, while the government should guarantee the freedom of speech, public address, public information, and the freedom of reception and transmission of information[9].

The recently fired journalists from the Channel 5 TV claimed that they received orders on how to report on certain events directly from the Cabinet of the Prime Minister. They were also instructed which were the “suitable” topics and questions for the public officials and experienced daily pressure from the management of the TV station to obediently perform the assignments given by the Premier’s Cabinet. Due to the disobedience, dozen journalists were fired from the outlet. This only secures the image of Macedonia as a state where autocracy is coming back in the recent years. The correspondence among the fired journalists, governmental officials and the TV station only confirmed the story of the so-called “arranged journalism”.

However, it is not clear why the journalists, according to their statements, tolerated the inadmissible conduct of the Government and editorial team of the TV for so long, violating their professionalism. If the firing did not take place, would they continue to write on arranged topics and ask arranged questions, misleading and misinforming the public? Do they have intention of apologizing to the Macedonian public for the misinformation and creating false image of the situation in the society? Are the other journalists, who are left in the TV station, still following the orders of the Government? Are there any other outlets in which the journalists work in the similar fashion? Here are also the dilemmas of the impact of ownership structure on the editorial policy of the media. Who should the public trust?

To the many questions raised with this case no one seems to offer an answer. The Association of Journalists is also silent, not offering any answers, nor conducting a survey (at least not publicly released) on the influence of political structures, particularly the governmental, on the media, respect of ethics and professionalism among the journalists…

1.2. Who is stronger in the state – the party or the rule of law?

In June and July the public was flooded with information on conflict of interests of officials/directors and councilors, with double (triple) offices, both on central and local level. The State Commission for Prevention of Corruption (hereinafter: Anti-Corruption Commission) publicly stated the names of the persons taking two or three salaries, most of them prominent names of the ruling party. However, the opposition is not lagging far behind.

The explanation of those whose names were publicly revealed was that they did not see any conflict of interest, nor they (some of them) had intention of giving up one of the offices. A mayor from the ruling party went one step further in the explanation, commenting that “there was nothing bad if a councilor is also a director, because the state is small, so the ruling party cannot find enough people to establish a government, let alone to fill in the positions of directors and councilors and MPs and deputy officials and state secretaries“[10].

The most frequent is the conflict of interest among the councilors, which are also directors of public institutions – schools, enterprises, institutions, spokespersons in the ministry, state servants and similar functions.

The competent state body for resolving the conflict of interests’ disputes, pursuant to the Law on Prevention of Conflict of Interests,[11] is the Anti-Corruption Commission. On the other hand the law is very clear in the part on conflict of interests. It provides clear definition of conflict of interests (Article 3, paragraph 1, item 1), which “means a situation where the private interest of an official person is contrary to the public interest[12] or when private interests influence or may influence his/her impartiality in conducting the duties of public interest. The law goes even further defining the public authorizations and duties (article 3 paragraph 1 item 2) as “performing works of public interest under equal conditions in material and immaterial terms“.

The law is also clear and decisive in Article 8, stipulating that during the time when the Official Person discharges the public authorizations and duties, he/she must not perform any activity that may influence the impartial discharge of the position and protection of the public interest. Article 8[13] of the Electoral Code also regulates the incompatibility of the office President of the Republic, member of the Parliament, mayor and member of the Council. When an Official finds out about circumstances indicating to the existence of conflict of interest, he/she is obligated immediately to request to be exempt and to cease his/her actions[14].

Although the Parliament has adopted very clear and readable law, the officials do not have the slightest care in the world. Instead of respecting and acting upon the law as exemplary citizens in the state, which should serve as role models to the others, they remained deaf to the comments of the public and the warnings of the Anti-Corruption Commission. Although this Commission is established by the state, it seems that no one takes into consideration its comments.

After the Commission did not stop with the legally foreseen actions and publicly pointed out the cases with conflict of interests, the Central Committee of VMRO-DPMNE came out to resolve the newly emerged situation. It was decided at a session of the Central Committee that all officials from their party must choose only one office by August 31, i.e. speaking in a plain language they must choose one armchair to sit comfortably in and receive salary. As if this was not enough, the Prime Minister called his directors (of public enterprises, state agencies, funds and inspectorates) for an urgent meeting in the government on giving up the double offices, when it was confirmed that they will have to decide themselves which office they will choose in order to give up the other office(s) by the given deadline.

Once the decision was made by the Executive Committee of VMRO-DPMNE, evidently the highest ranking state body in the country, and the meeting in the Government, the persons pointed out as officials with double (triple) offices started to resign one after another or in groups, with an explanation that “this move did not come as a result of the recommendations of the Anti-Corruption Commission, nor because of the pressure from the media, but because of the position taken by their party VMRO-DPMNE”.

The number of officials that resigned on one of their offices in one week reached 13, but the Anti-Corruption Commission says they were examining 50 other cases for 70 officials that receive more than one salary[15]. The chairman of the Commission says this number is at least two and a half times higher.

After these developments, one may ask, where is the obligation for obeying the law? Do the laws apply only to the common citizens, or also to the officials appointed by the government?

Instead of respecting the laws, it seems the only valid law in this country is the will of the party’s leadership, so the party meetings become substitute for the sessions of the state bodies. Therefore, the decisions of the Executive Committee of the party without much debate are confirmed by the executive power. Irrational for a democratic state!

Although the Republic of Macedonia is a democratic state in which the rule of law is one of the fundamental values, the actions of the state officials show that the institute rule of law applies only on paper and only for the common citizen, but not for the officials appointed by the government, which obey only the decisions of the executive committees.

The Helsinki Committee believes that such functioning of the state is beyond the normal democratic systems.

The Helsinki Committee reminds to the principle of equality in front of the laws and the Constitution as well as the responsibility of the appointed officials, who besides the legal and political responsibility must have moral responsibility.

1.3. Barrier for the new religious communities

Within its mandate, the Helsinki Committee continuously monitors the exercise of the right to religion in the Republic of Macedonia and points out the problems of the citizens regarding this issue. In several occasions the Committee discussed several cases in which the new law is violated, although it was supposed to guarantee the right to religion.

Although the legal text explicitly stipulates that religious discrimination is not allowed[16], and the state respects the identity of the churches and religious communities and establishes permanent cooperation with them[17], and creates conditions for unobstructed performance of their activities. The law can restrict the freedom of expression religion only if this is in the interest of public safety, order, health, moral or protection of the rights and freedoms of the others[18]. Despite all of this, it seems that the law failed to encourage the state to release the restraints of religious monopoly and to allow registration of new religious communities in the state.

The major novelty in this law is that it was supposed to overcome the problems of the previous one and to start a new era of religious pluralism in Macedonia. However, the experience of the Helsinki Committee in the last and this year, according to the numerous complaints, shows that this is not the case. Although it seems to the public that the only problem is the registration of Vraniskovski’s church, this is not true, because there is increasing number of rejected applications for registration of different religious communities, due to bizarre and legally invalid grounds.

Besides the case of the Greek-Orthodox Ohrid Archbishopric of Pec Patriarchy, whose rejection was confirmed by the Appellate Court, we shall mention the applications of the Stavropegial Monastery of St. John Chrysostom, then the Church of True Orthodox Christians in Macedonia as well as the Bekteshi Community. They were all refused as a result of unclear date of establishment, lack of information of the court on the form of registration or alleged discrimination of the other communities and provisionary interpretation of the law contrary to the principles of religious pluralism.

In all these cases the use of same explanations for different cases by the court is evident as well as only repeating of the claims of the Basic Court by the Appellate one.

All this brings us to a conclusion that the new law did not meet the purpose for which it was adopted and that is the establishment of several religious communities and granting freedom to every citizen to exercise its own religion regardless of whether this is contrary to the interests of the major religious communities or not.

This conclusion is supported by the EU Progress Report and the US State Department Report on religious liberties as well as the latest EC Report against racism and intolerance, where it is clearly said that the lack of efficient implementation of the law does not allow the religious communities to gain legal status.

Guided by the fact that religious pluralism is nothing more but characteristic of the contemporary democracies and condition for exercising human rights in the part of religion, the European Court of Human Rights believes that the failure of the state to remain neutral in exercising the power and its direct infiltration in the decision who is eligible to establish a religious group is a violation of the right to freedom to religion guaranteed with Article 9 of the European Convention of Human Rights.

The Helsinki Committee notes that the state failed to translate the legal standards into reality and through its institutions became an obstacle for implementation of the law. Therefore, we call to the state to change this practice in order to respect the law and to guarantee the freedom to religion to all citizens.

1.4. Social security – forgotten right in Macedonia

In the past period we witnessed how a central institution of the parliamentary democracy slowly, but surely becomes a large theater with many actors, whose performance deserves to be seen.

Numerous incidents, inappropriate behavior, low level of culture, vulgar assaults became part of the everyday work of the Parliament of the Republic of Macedonia, which absolutely derogate the dignity of the Assembly.

The tensions started with a debate on the draft law on providing funds for the unemployed persons as a result of the privatization of enterprises in state and public ownership. The discussions on the draft law instead of being focused on finding out solution for the destiny of these people left to the mercy, has taken completely different direction.

The debate was spiced up with harsh accusations, personal insults, threats, humiliations on who has caused this problem which left 10.000 persons out of work, and trying to find out the responsible for the privatization.

Obviously the MPs in their speeches forgot the most important – that they are “discussing the right to social security and equality, indispensable part of human dignity!”

The right to social security, which was forgotten by the MPs, is a right guaranteed with the UN Universal Declaration of Human Rights, which clearly stipulates that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment. The document also obliges the state to make efforts on national level in order to provide for the social security.

The European Social Charter of the Council of Europe also speaks of the obligation of the state to protect the citizens from poverty and social exclusion.

This is not something new for the Macedonian law, as the Constitution of the Republic of Macedonia stipulates the right of citizens to social security and social insurance, as well as the obligation of the state to provide for the social protection and social security of citizens in accordance with the principle of social justice and to guarantee the right of assistance to citizens who are infirm or unfit for work.

Instead of discussing the rights of the citizens guaranteed by constitution and law, the MPs blamed each other on what caused the problem, completely defocusing from the real problems of these citizens.

It seems as if the MPs forgot that they received their mandate from the citizens and they should represent and advocate for the interests of all citizens and not to use the existing problem for earning political points.

The Helsinki Committee emphasized that the MPs i.e. the Parliament are obliged in their actions to be guided by the human rights and freedoms, their realization and respect i.e. their decisions to be guided solely by the concept of human rights which always puts the human dignity in focus and during the discussions in the Parliament to forget and leave aside their political parties.

1.5. Disciplinary penalty for professional soldiers

Although Macedonia (normatively) is a democratic state with regulated rights, including the right to public protest, it seems that one of the tasks of the current government is to suffocate the public protests, regardless of the chosen means and methods.

Besides the students from the “Archibrigade”, the laid off workers, the farmer from Bitola, the disobedient journalists, others in the series of sanctioned protestors are the professional soldiers trying to exercise their right to employment.

While the professional soldiers fought for their rights, they were constantly subject to different measures, from the ban of using days off, ban to contact the media, termination of their annual leave and ban for organizing protest, which culminated with the latest initiatives for termination of the employment…

Namely, they were all offered to sign agreement for extending the employment contract for a definite period of time, which also stipulates that the soldier will be forbidden to express the dissatisfaction through protests and public addresses, which are harmful for the reputation of the Macedonian Army. On contrary the employment will be terminated.

However, they did not take into account that the rights of the employees are regulated only by law and collective agreements, so the employment contract cannot define less rights than those foreseen by law, but on contrary it may only stipulate rights that are more favorable than those foreseen by law. In addition, the rights defined by constitution and law cannot be taken away or restricted by acts and actions of the employer, in this case the Ministry of Defense.

The freedom of thought and public expression and public address is guaranteed by the Constitution[19] of the Republic of Macedonia, which also stipulates in Article 21 that “citizens have the right to assemble peacefully and to express public protest without prior announcement or a special license…”

The Law on Defense bans the strike in the Army only in the case of a state of emergency or war and under the same circumstances it is forbidden to join into trade unions. In all other cases the general rules of the Constitution and the Law on Labor Relations apply.

However, it seems that the responsible persons in the Ministry had on their mind a different interpretation of constitutional and legal regulations when they issued an order, which strictly prohibits making statements in the public by persons that are not assigned for that – according to the duty, competence or authorization. So, in compliance with this order an initiative was raised against some of the professional soldiers for determining the disciplinary responsibility because the “named persons made statement through the media in the role of representative of independent trade union of professional soldiers that was not truthful to the general situation in the Army and called on and enticed the professional soldiers serving for the interest of Republic of Macedonia to violate the military discipline”.

To add to this absurd, the responsible persons say that they learned from “unconfirmed sources?!” that there was a verbal argument between the named person and the police, during which the police used force and with this the soldier violated the military discipline?!

The farce goes on, so the responsible persons in the Army on the basis of unverified sources and allegations, contrary to the Constitution and violating the freedom to expression and protest, suggest pronouncing a disciplinary measure for the soldier – termination of employment.

Unfortunately, this attitude of the government cannot be considered as nothing else but harsh attempt of violating the freedom of expression, protest and syndical association, using threats for termination of the employment of the “disobedient”. It is unnecessary to emphasize that this trend of punishing the participants in the protests is a violation of fundamental rights and freedoms.

Obviously the Government remained silent to the comments of the Helsinki Committee, so Macedonia once again failed to respond to the challenges, which determine its status as democratic state, and that is the failure to provide conditions for unobstructed exercise of the right to public protest.

1.6. Hate speech

In the process of adoption of the Law on Prevention and Protection against Discrimination, a group of citizens (LGBT) was clearly singled out and unheard hate speech was used when referring to this group. Then the first example of open, straightforward discrimination against LGBT people emerged. In June, the poster promoting a festival of bikers association (patron of the festival was the City of Skopje) said – “forbidden for alcohol, drugs, weapons, animals, 666 and gays”!

When the Appellate Court confirmed the jail sentence of Jovan Vranishkovski on July 21, the association World Macedonian Congress, issued a press release, saying: “The statement of the devil sect of Vraniskovski, which stimulates and entices national, racial and religious hatred, discord and intolerance, claiming that ‘this was a cross he had to bear’ is a parody, because he has given up the cross when he became related with the Serbian schismatic church, harshly abusing the religious feelings of the orthodox believers from Povaradrje Bishopric and Macedonia, breaking the ties with the mother church – the Macedonian Orthodox Church…”

It is not the first time for the World Macedonian Congress to spread religious intolerance and call on lynch on this ground. Vraniskovski’s supporters have filed criminal charges to the Public Prosecutor against the World Macedonian Congress and previously against the person Janko Bacev (in February this year) for enticing religious hatred and violence. The reply is still pending.

2. POLICE AND COURT CASES

2.1. The case of Faik Belani, Skopje

Mr. Faik Belani informed us that his daughter Ms. I. Belani was hospitalized on December 22, 2004 in the Special Gynecology and Obstetrics Hospital “Cair” in Skopje with appropriate diagnosis as recorded in the documentation. At the control check-up on December 27, 2004 she was diagnosed with “fetus mortus”. On the same day, the general health condition of the patient deteriorated and she was transferred to the Coma Center in the University Hospital for further treatment.

On January 5, 2005 the patient died, confirmed by the death certificate and the medical report on the cause of death. In 2007, Mr. Belani through his legal representative addressed the Ombudsman’s office, which processed the complaint and acted accordingly. The letter sent by the Ombudsman to the client read that the Ombudsman has taken measures and activities (addressed the University Hospital, Ministry of Health) and was notified that the Health Ministry has established a Commission which ruled that there was no malpractice i.e. the treatment was properly done by the medical team of the University Hospital.

In the request to the Helsinki Committee, Mr. Belani asked us to explore whether his daughter received the appropriate medical treatment and care by the medical team in Cair hospital, to verify the expertise of the doctors and whether all necessary steps were undertaken for appropriate treatment by the doctors.

The Helsinki Committee addressed the Ministry of Health with special request for establishing a commission in order to examine the activities of the medical staff in Cair hospital. At the beginning of the year, the representatives of this commission had meeting with the Helsinki Committee to clarify the necessary details on the case.

On May 5, 2010, the Ministry of Health replied, without giving any conclusive decision on the procedures applied by the medical staff due to incomplete medical records. The reply is provided below.

“The Commission cannot conduct full evaluation of the case due to unavailability of the complete medical records both from the Cair Hospital and Neurosurgical Clinic. Therefore it is not possible to make a conclusion whether the deceased patient was treated in accordance with the evidence-based medicine”, says the letter sent from the Ministry of Health to the Helsinki Committee. Furthermore, the letter reads that “the Commission thinks that appropriate measures should be pronounced against the health institutions involved in the treatment of the patient due to inappropriate keeping of the medical documentation”.

As a non-governmental organization, the Helsinki Committee is not able to evaluate the expertise and competence of medical team for appropriate treatment of the patient.

The Helsinki Committee believes that the client should file criminal charges to the Public Prosecutor’s Office – Skopje for “Severe crimes against the health of the people” stipulated in Article 217 paragraph 2[20] of the Criminal Code and for “Unscrupulous treatment of the diseased“ Article 207[21] of the Criminal Code and to request from the state bodies to clarify the dilemma, whether there was or not unscrupulous treatment of the patient in Cair hospital, because the fact that the medical records are somehow missing are only adding fuel to the flames.

2.2. The case of Robert Popovski – Bad delivery or judicial game?

The Helsinki Committee for Human Rights of the Republic of Macedonia on April 16, 2008 filed criminal charges to the Public Prosecutor’s Office in Struga against unknown offenders for “Mistreatment in performing a duty” (Article 143, paragraph 1 of the Criminal Code), “Severe bodily injuries” and “Torture and other cruel, inhuman or degrading treatment and punishment” (Article 142 paragraph 1 of the Criminal Code).

On February 1, 2008 around 6:30 am special police forces came into the home of Robert Popovski, with an arrest warrant. During the arrest, one of the officials without any reason hit Robert’s jaw with the rifle butt. Robert complained to pains so after the detention he was medically examined and it was determined that his jaw was broken. He underwent a surgery in the Department for Maxillofacial Surgery in Bitola Hospital and then he was transferred to the department for arrested people in the University Hospital in Skopje upon the decision Ki. No. 19/08 as of February 6, 2008 of the Basic Court in Bitola.

Even in the process of submitting the application, the slow reaction of the competent organs was evident. We had to react to the Public Prosecutor’s Office for the time-consuming procedure and at the end the Public Prosecutor’s Office from Struga made a decision on November 20, 2008 Ko. No. 131/08 dropping the charges against S.D., T.N., D.Gj. and N.B. from Skopje, because there were no grounds to suspect that they committed the crime.

The Helsinki Committee continued to seek justice and filed subsidiary indictment against four members of the Ministry of Interior for “causing severe bodily injuries,” “Torture and other cruel, inhuman or degrading treatment and punishment” and “Mistreatment in performing a duty.”

When the trial began, a new problem emerged which stalls the procedure – court delivery. The attempts for serving the defendants with the indictment last for over a year, so we realized that the delivery affects the court proceeding. In this specific case, although there is evidence for delivering the writ to the three defendants, for the fourth one the Basic Court in Struga was notified from the Ministry of Interior in January 2010 that the fourth defendant changed the place of residence and moved to another town.

Nothing would be disputable or strange, if someone at least tried from January to June 2010 to submit the indictment to the defendant, but unfortunately such document does not exist in the files. Now, it is questionable whether this is only a game to delay the court proceeding or this is result of the fact that the defendants are members of the Ministry of Interior?

The Helsinki Committee reminds that all citizens are equal in front of the law and the law must apply to everyone. We expect for the court to undertake all necessary measures to provide for proper delivery and to finally start the court procedure.

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[1] Zarko Trajanovski in his column for the daily Dnevnik (7.7.2010)

[2] Article 43 of the Law on Assembly of Macedonia stipulates:

(1) A special unit shall maintain the order within the Assembly premises. The persons from the special unit for maintaining the order in the Assembly premises shall have, in a visible place, an emblem of the Assembly of the Republic of Macedonia.

(2) The authorized official persons from other state bodies shall not be entitled to access the Assembly’s premises without prior approval of the President of the Assembly, nor shall they undertake measures towards the MPs, the members of the Staff and the other citizens.

[3] In this case, when there is no legal ground for processing (in this case filming) of personal data, it can be done only with prior consent of the persons (MPs, assembly staff, which are subject to video surveillance).

[4] The position, composition, authorizations and legal action of the decisions made by the Constitutional Court are specifically regulated in the Constitution of the Republic of Macedonia, while the manner of work and the procedures in the Constitutional Court, pursuant to the Constitution, are regulated by the court itself with its own act – Rules of Procedure of the Constitutional Court. The motive of the constitution maker for this solution is to provide autonomy and full independence of the Constitutional Court in relation to the Assembly and other state bodies.

This body is an institution of the Constitution, whose functions and boundaries in performing its functions are based on the Constitution and its purpose is to implement the Constitution. Such position of the Constitutional Court guarantees that the conditions for exercising the constitutional-judicial function are protected and cannot be changed by the current holders of political power as a tool for adjusting this function to the daily political needs and interests as well as distancing the Court from every political authority, particularly the ruling one.

According to the Constitution, the Constitutional Court shall repeal or invalidate a law if it determines that the law does not conform to the Constitution and shall repeal or invalidate other regulations, if it determines that the same does not conform to the Constitution or law. The decisions of the Constitutional Court are final and executive. Undoubtedly, the Constitution provides undisputable authority to the Court’s decisions and compulsoriness for all legal entities to which these decisions apply. No legal remedies are allowed against these decisions. Their action is erga omnes.

[5] “For most of the monuments, the building permits have been issued and I think that there will be no serious delay. I think this will be good for the entire project. No major problems are expected,” said Nikola Gruevski as reported by A1-TV on 1.7.2010.

[6] Official Gazette of Republic of Macedonia, No. 51/05, 137/2007 and 91/2009

[7] Official Gazette of Republic of Macedonia, No. 5/02

[8] Official Journal of the Municipality of Centar No. 1/06

[9] Article 16 of the Constitution of the Republic of Macedonia

[10] www.A1.com.mk/ Conflict of Interest in the Local Government – 15.07.2010

[11] The objective of this Law is to ensure prevention of abuse of power and confided public authorisation by Officials in accomplishing personal or covetous goals and to ensure prevention of the possibility for the private interests of the official person to come into conflict with the public interests.

[12] Article 3 paragraph 2

An Official, in the context of this Law, are the President of the Republic of Macedonia, members of the Parliament, mayors, appointed Ambassadors and envoys of the Republic of Macedonia abroad; appointed and nominated persons by the President of the Republic of Macedonia; elected or appointed functionary in the Assembly of the Republic of Macedonia, the Government of the Republic of Macedonia, authorities of the state administration and other bodies, courts and other judicial bodies, public enterprises, institutions and other legal entities of the central and local authorities, state servants and employees in the state administration bodies and other state bodies, the councilors in the municipal councils and in the City of Skopje as well as people hired by the agency for temporary employment with authorizations defined by law.

[13] Article 8 – Electoral Code

(1) The office of a Member of Parliament, Member of Council and Mayor shall be incompatible with the office of the President of the Republic, President of the Government of the Republic of Macedonia, Minister, Judge, Public Prosecutor, Public Attorney, Ombudsman, and with other holders of offices elected or appointed by the Parliament of the Republic of Macedonia (hereinafter: the Parliament) and the Government of the Republic of Macedonia (hereinafter: the Government).

[14] Article 12 paragraph 1 of the Law on Prevention of the Conflict of Interests

[15] www.alfa.mk

[16] Article 4 of the Law on Legal Position of the Churches, Religious Communities and Religious Groups, Official Gazette of Republic of Macedonia, No. 113/07

[17] Ibid, Article 6,

[18] Ibid

[19] Article 16 paragraph 1 and 2 of the Constitution of RM

[20] Severe crimes against the health of people – Article 217

(1) If some person has sustained severe bodily injures, or his health is severely damaged, because of the crimes from article 205 items 1 and 2, article 207 items 1 and 2, article 209, article 211 item 1, article 212 item 1, article 213 item 1, article 214 item 1, article 215 item 1, and article 216 items 1 and 2, the offender shall be punished with imprisonment of one to ten years.

(2) If one or more persons died because of the crimes from article 205 items 1 and 2, article 207 items 1 and 2, article 209, article 211 item 1, article 212 item 1, article 213 item 1, article 214 item 1, article 215 item 1, and article 216 items 1 and 2, the offender shall be punished with imprisonment of at least four years.

(3) If another person has sustained severe bodily injures or his health is severely damaged because of the crimes from article 205 item 3, 207 item 3, 211 item 2, 212 item 2, 213 item 2, and 214 item 2, the offender shall be punished with imprisonment of three months to three years.

(4) If one or more persons died because of the crime from article 205 item 3, 207 item 3, 211 item 2, 212 item 2, 213 item 2, and 214 item 2, the offender shall be punished with imprisonment of six months to five years.

[21] Unscrupulous treatment of the diseased – Article 207

(1) A doctor who, when providing doctor’s assistance, applies a clearly inadequate means or manner of treatment, or does not apply proper hygienic measures, or in general, acts unscrupulously and herewith causes deterioration in the health situation of another, shall be punished with a fine, or with imprisonment of up to three years.

(2) The punishment from item 1 shall apply also for a midwife or some other health worker who, when providing medical assistance or care, behaves unscrupulously and herewith causes deterioration of the health situation of another.

(3) If the crime from item 1 was committed out of negligence, the offender shall be punished with a fine, or with imprisonment of up to one year.