Monthly Report (March 2010)

1. PUBLIC EVENTS  AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Dangerous (political) games in the Constitutional Court, but also about the Constitution

1.2. The case of judge Violeta Duma and the Judicial Council

1.3. Despite the warnings of NGOs and Europe, the law is passed

1.4. Optional Protocol to establish a complaints/communications procedure – Convention on the Rights of the Child

1.5. Analysis of the situation of fundamental human rights in the psychiatric hospitals in Macedonia – announcement for special report

2. POLICE AND COURT CASES

2.1. Right to Fair Trial – Case of Fuat Neziri, Tetovo

2.2. Effective jail sentence for maltreatment while performing the duty – Case of Nexhbi Jashari, Tetovo

2.3. What is more important than respect for the rights guaranteed by law?! Case of Vase Kitanovski, Kratovo

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1.   PUBLIC EVENTS  AND VIOLATIONS OF DEMOCRATIC PRINCIPLES

1.1. Dangerous (political) games in the Constitutional Court, but also about the Constitution

In the past few days, the leaders of major political parties are deciding on the initiative for amending the Constitution of the Republic of Macedonia. It all started with amending one segment (the composition of the Judicial Council), but the meetings of the leaders, and probably the sessions of the working groups, resulted in several ideas for more extensive changes, which have been already announced, in one way or another, by the parties. No matter of the final outcome of the political bargaining at the leaders’ meetings (“institution” completely unknown to the constitutional order of the state, but with powerful authorizations), it would indirectly affect the decision making (the proposal for introducing the Badenter’s principle for the laws which were adopted by the Parliament by using this principle) of the Constitutional Court of Republic of Macedonia. Worried about the possible results of the political games in this respect, the Helsinki Committee would monitor and would respond to the combinations of the political elites.

For now, we still maintain our position on the recent developments, which were not a good sign for a state aspiring to the rule of law – the pressure on the Constitutional Court.

The position, composition, competences and legal action of the decisions made by the Constitutional Court are regulated by the Constitution of the Republic of Macedonia, while the method of work and proceedings in front of the Constitutional Court, in accordance with the Constitution, are regulated by the Rules of Procedure of the Court. The motive for this regulation was to provide autonomy and full independence of the Constitutional Court from the Assembly and other state bodies, and not only to provide regulation as we heard recently.

This body, along with the other constitutional bodies, is an institution of the Constitution, which provides the basis and limitations for performing its functions. Such position of the Constitutional Court gives guarantees that the conditions for realizing the constitutional judicial function is protected from any changes made by the current holders of political power, who often want to adjust this function to the daily political needs and interests, as well as to distance this institution from any political authority, particularly the one holding the power.

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, shall repeal or invalidate other regulation 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 gives undeniable authority to the decisions of the Court and mandatory implementation by all legal entities to which these decisions refer, and no legal remedies are allowed. Their action is erga omnes.

Comparatively speaking, the constitutional courts in Europe are authorized to control the legislation and to annul it if it is not harmonized with the constitution of the state; in addition, all constitutions stipulate that every citizen may invoke the protection of freedoms and rights determined by the Constitution before the regular courts; furthermore, some of them, unlike the Constitutional Court of Macedonia, perform supervision/ control over the constitutionality of international agreements prior to their ratification. Most importantly, the decisions of the constitutional courts in Europe have validity res judicata from the day of their publication and it is impossible to appeal against them. They belong to the category of erga omnes, meaning that they are obligatory for all natural and legal entities and they are obliged to respect them. Such obligation is stipulated for the state bodies, local and regional government, which must implement the decisions of the constitutional courts.

The pressures on the Constitutional Court by the executive power in our country, including the active role of the Prime Minister, seem like a normal phenomenon in our society.

First, the ruling party VMRO-DPMNE and those closely related to it, reacted to the decision of the Constitutional Court on revoking the decision on introducing religious classes in the school. Then, the Prime Minister, Nikola Gruevski sent a letter to the Constitutional Court after annulling the decision on external assessment, in which he provided his standpoints and motives for introduction of such assessment. Precisely when the President of the Constitutional Court shared his New Year wish for less pressure on the court’s work, the practice of launching attacks continued in more direct and unscrupulous way. The President of the Government, obviously not taking care of the division of power in a democratic state (legislative, executive, judicial), after another decision which was not in his favor said (several times in various ways) that “another factor in the state, political one, another political party” affects the work of the Constitutional Court and complained that he could not influence the work of the judges and their decisions “as they were orchestrated by the power that appointed them”.

Another precedent followed – the President of the Assembly, Trajko Veljanoski, invited the President of the Constitutional Court, Dr. Trendafil Ivanovski, to attend a session where MPs ask questions, to present the court’s work. Furthermore, deputy Blagorodna Dulic, in the spirit of undemocratic regimes, absurdly believes that only the state institutions, Government, deputies and local government and not the citizens would be able to submit initiatives to the Constitutional Court, committing also for shortening the deadlines for submitting initiatives and decision making. The annulment of the provisions from the Law on Lustration was interpreted by the Prime Minister as “provocation” and he reiterated this position several times.

The decisions of the Constitutional Court may be commented, as part of the transparency of its work, but this has to be done with legal arguments and not with political statements aimed at discrediting the Court as an institution or its members.

In several occasions, the Helsinki Committee for Human Rights reacted to the pressures of the Constitutional Court, emphasizing the need for respecting the independence of judiciary and even prepared a special analysis. The full text of the analysis is available on our web site

1.2. The case of judge Violeta Duma and the Judicial Council

In the message released on December 10, the International Human Rights Day, we mentioned the delay of announcing a decision, which was already made by the Appellate Court and the rumors that the judge, who was supposed to sign the verdict, would be dismissed. Behind this idea was the Minister of Justice, as an ex officio member of the Judicial Council.

Previously, the delay in announcing the verdict and the initiative for discharging the judge, Violeta Duma, were brought into relation with two moments: the verdict was in favor of the former Prime Minister and Defense Minister from the ranks of the opposition, Vlado Buckovski, and the deteriorated interpersonal relations between the judge and the family of Justice Minister Mihajlo Manevski (read his wife who apparently has major influence in Skopje courts)! The speculations on the initiative for discharging Duma emerged in the public prior to the decision on revoking and returning the case against Buckovski to the lower instance court, which can be interpreted as influence on the court. Afterwards, when Minister Manevski as a member of the Judicial Council (which raises the issue of political opportunism for an ex officio member to undertake such action) submitted an initiative for replacing Duma as a result of “malpractice in implementing the law while performing the judicial function”, pointing out a case in which Duma participated in the second instance procedure and as a chair of a council in the Appellate Court. In other words, this is a case which cannot have such radical repercussions only on her career, because if the identity was falsely established, then it is logical for the first instance court to be responsible for this.

After judge Duma had a public appearance with her own interpretation of the events (that Manevski’s initiative was tendentious, caused by his desire for vengeance and self-satisfaction and was submitted after the expiration of legal deadline), a second accusation arrived on her address – blaming her for not being excluded from the court cases in which the reports of the Institute for Forensic Medicine were used. This Institute is headed by the judge’s husband, Aleksej Duma, who signs all expert reports of the Institute. In addition, two new cases were pinpointed to the media, allegedly showing that Duma did not deserve to be a judge. On the opposite front, the state prosecutor, Ljupco Svrgovski believed that the judge was not to be blamed: “This case is crystal clear and I do not see any wrongdoing in the proceedings of appellate judge Violeta Dima, who chaired the five-member Criminal Council. The decision was made with five votes in favor and not a single vote against. It would have been bad, if it was the other way round. If the appellate court went into establishing the identity of the convicted person, then the Council would be held responsible”.

The Judicial Council has not only suspended judge Duma, while the procedure against her was still on, which can be understood, but also ordered her, upon a complaint allegedly from her colleagues, not to come at her workplace, with an explanation that she went to the office of the president of the Court (and according to the anonymous person by receiving her the President gave a bad example).

The “soap opera” directed by Minister Manevski was taking place when his boss, Prime Minister Gruevski, was committed for amending the Constitution of the Republic of Macedonia in the part referring to the composition of the Judicial Council, with an idea to increase the number of members from the judiciary and exclude the ex officio membership of the Justice Minister. If this initiative is considered to be well-intentioned – as a correction of initial constitutional amendments that preceded the judiciary reforms (at the time of the last Government of SDSM), which left room for the politics to be dominating in the Judicial Council (particularly if the parliamentary majority and the entire executive power belong to a same party), but also from “preventing” ministers like Manevski then it would have been all right. However, the Constitution cannot be changed that easily and without additional “bargaining”, so the simplest solution is for the Prime Minister to sacrifice the Justice Minister. And in fact here lies the problem.

1.3. Despite the warnings of NGOs and Europe, the law is passed

It is clear that all comments of the civil society organizations regarding the shortcomings in the Law on Protection and Prevention Against Discrimination were futile as well as the recommendations from Brussels, particularly on the exclusion of the sexual orientation as a ground for discrimination. The ruling Demo-Christians in our country did not succumb to the “dictate” of the foreigners and their mercenaries and failed to prove the thesis – a headline in one of the newspapers (“Be gay, not Macedonian”).

But, might makes right. If Macedonia wants to go into Europe with this Government, despite the euphoric adoption of the law, proclaimed as European one by those who voted in favor of it, it will have to undergo changes in order to be harmonized with the true European standards, following in the footsteps of several candidate countries during the negotiations for EU membership. Unless, this Government has a different purpose, which is to become a member of the Union as late as possible.

1.4. Optional Protocol to establish a complaints/communications procedure – Convention on the Rights of the Child

An international call to strengthen the enforcement has been launched for an Optional Protocol to the Convention on the Rights of the Child (CRC) to establish a complaints/communications procedure.

A complaints or communications procedure allows individuals, groups or their representatives, claiming that their rights have been violated by a State that is a party to a convention or covenant, to bring a communication before the relevant committee, provided that the State has recognized the competence of the committee to receive such complaints.

The Convention on the Rights of the Child will soon be the only international human rights treaty with mandatory reporting that lacks a communications mechanism to challenge such violations. This is a serious matter of discrimination against children.

More than 600 non-governmental organizations, human rights institutions and other bodies in all regions support this campaign, including the Office of the High Commissioner for Human Rights. The Committee for the Rights of the Child has reiterated its support as well as many other states signatories of the Convention.

In June 2009, the UN Human Rights Council established an intergovernmental Working Group to explore the possibility of drafting a new Optional Protocol. The Working Group met in December 2009 and submitted a progress report to the Human Rights Council (HRC) on its 13th session held in March 2010.

The Council has adopted by consensus a new resolution that gives the Working Group the mandate to draft an Optional Protocol.

Having in mind that the support of the Republic of Macedonia is important in achieving this goal, and it should also contribute for better exercise of children’s rights in the Republic of Macedonia, the Helsinki Committee addressed the Ministry of Foreign Affairs (MFA) in order to encourage the Republic of Macedonia to support the Working Group for drafting the Optional Protocol on establishing a communication procedure and to review its role in lobbying for support among the other members of the Human Rights Council.

After the meeting with MFA’s representatives, we were informed that not only they were familiar with the procedure on drafting the new protocol, but the Republic of Macedonia was also one of the countries that actively lobbied for adoption of this protocol.

They also told us that the Republic of Macedonia has supported and co-sponsored the Resolution for establishing an open working group for exploring the possibilities for drafting the Optional Protocol to CRC, enabling the Committee on the Rights of the Child to receive and examine communications from children and their representatives alleging violation of their rights. At the last, 13th session of HRC, the Republic of Macedonia joined the other sponsors of the Resolution on continuing the efforts and drafting the working text of the Optional Protocol.

Having in mind that this is about the Convention on the Rights of the Child, the Helsinki Committee also contacted the Department on the Rights of the Child within the Ombudsman Office, but they were not informed on the activities undertaken by the Ministry of Foreign Affairs.

The transparency in the work of the state bodies, including the MFA, is the main pillar of the sustainability of the rule of law. However, transparency does not mean selective publication of information, when this seems convenient to the holder of information.

The Helsinki Committee welcomes the activities of the Ministries of Foreign Affairs, which has been actively lobbying for drafting and adoption of the Optional Protocol to establish a complaints/communications procedure. We expect that in future the Ministry would be more transparent about its work, both towards the other state bodies and all citizens of the Republic of Macedonia.

1.5. Analysis of the situation of fundamental human rights in the psychiatric hospitals in Macedonia – announcement for special report

The issue of the rights of patients in psychiatric hospitals is a topic triggering broad debates and controversial conclusions, both in the country and abroad. Despite the significant legal, clinical and ethical progress made in this area, only few researches have been conducted in Macedonia.

The twenty year long transition in Macedonia and its cumulative effects, such as recessions, social tensions and other societal crises have reflected on the marginalized and unprotected groups of citizens, particularly those in need of institutional protection. In this respect, the Helsinki Committee for Human Rights in its continuous efforts for promotion, respect, advancement and protection of human rights and in accordance with its mandate at the beginning of March 2010 has performed monitoring of three state psychiatric hospitals in Macedonia: State Psychiatric Hospital “Skopje” – Skopje, State Psychiatric Hospital “Demir Hisar” and State Psychiatric Hospital “Negorci”. The purpose of the visit was to explore whether the psychiatric patients are allowed to exercise their fundamental human rights without any restrictions just like the other citizens, particularly because of their vulnerable situation they have special rights depending on their special needs.

During the monitoring, the Helsinki Committee was guided by the Constitution, Law on Mental Health and Law on Protection of Rights of the Patients. In addition, we have used the international documents, stipulating that any person with mental illness shall have the right to use all civil, political, economic, social and cultural rights recognized with the Universal Declaration of Human Rights; the International Covenant on Social, Economic and Cultural Rights; International Covenant on Civil and Political Rights and other relevant instruments such as the Declaration on the Rights of Disabled Persons[1] and UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health[2].

This report is produced after the visit of the Macedonian Helsinki Committee, which prepared recommendations based on the observed deficiencies and violations of the national and international legislation in the psychiatric institutions in Macedonia.

The analysis will be published on our web site.

2. POLICE AND COURT CASES

2.1. Right to Fair Trial – Case of Fuat Neziri, Tetovo

With indictment act issued by the Public Prosecutor’s Office – Skopje, Mr. Fuat Neziri was indicted for criminal act “taking hostages”. The indictment was filed in 2003 against 10 people, who were found guilty by the Basic Court Skopje 1 – Skopje with the verdict No. 394/03 as of September 28, 2004 and were convicted to jail sentence, totaling to 93 years. With the same verdict, Neziri was sentenced to 10-year prison, after photo identification in the police station.

On June 22, 2007, Neziri started to serve his prison term in the Republic of Italy, where he stayed until March 27, 2008 when he was extradited to Macedonia, where the detention was continued. His attorney filed a request for repeating the court procedure, which was accepted by the court allowing the criminal procedure that ended with verdict in 2004 to be repeated.

During the repeated procedure the defense presented evidence that at the time when the crime was committed, for which Neziri is burdened, he was in Italy. In addition, all witnesses called during the main trial decisively said that the defendant Neziri was not present at the place where the crime happened on August 29, 2002 i.e. Neziri was not part of the group. Regarding the identification procedure, all witnesses said at the repeated trial that the recognition was performed in the police station and at the investigation judge, but it was very quick and based on a photo album. One of the witnesses even said that he possibly made a mistake in his statement made during the first trial, insisting that he did not take part in the event and did not commit the crime.

Regardless of the statements made at the trial, the Basic Court Skopje 1 on April 24, 2009 ruled that defendant Neziri was guilty and sentenced him to six years imprisonment. The explanation of the ruling said that the court believed in the identification performed in the police station in 2002, but did not validate the categorical statements of the witnesses that the defendant did not participate in committing the crime. The failure to recognize Neziri in the repeated trial may be due to the “changed physical appearance of the defendant as more than seven years have passed…”

The defense filed a complaint, with a request to reexamine the first degree verdict on all grounds stipulated in Article 380[3] of the Code of Criminal Procedure. Unfortunately, the Appellate Court in Skopje rejected the complaint and confirmed the first degree ruling, providing the same explanation as the Basic Court Skopje 1 – Skopje.

Neziri’s brother[4] asked Helsinki Committee whether it is possible something like this to happen in a country committed for the rule of law, such as the Republic of Macedonia. After the Helsinki Committee received and reviewed the submitted documents, it has regretfully noted that the statement of the client is true. This inevitably raised the issue on whether the court has taken into account Article 365[5] of the Code of Criminal Procedure as well as the fact that this Code does not recognize identification based on photos, but only identification based on faces. The recognition based on photos performed in the police station is illegal because it was done without the presence of investigation judge, public prosecutor and defense attorney of the defendant.

The Supreme Court of Republic of Macedonia has already proceeded and ruled that a court decision cannot be based only on identification based on photos, as they are not valid evidence.

The Helsinki Committee is highly concerned whether the right to fair trial exists in the Republic of Macedonia and whether it is actually implemented. After a series of cases presented by the Helsinki Committee, it may be noted that the Republic of Macedonia has a lot to learn about the institute of fair trial, but the problem is who will bear the burden and who will pay the price with several years imprisonment while this learning process lasts.

2.2. Effective jail sentence for maltreatment while performing the duty – Case of Nexhbi Jashari, Tetovo

The case of Nexhbi Jashari was observed by the Helsinki Committee in 2007, when Jashari was kidnapped, beaten and maltreated by the police members.

The Helsinki Committee filed criminal charges against one of the police officers[6]. The charges and the proposal were accepted by the Public Prosecutor’s Office in Tetovo and criminal procedure was opened on the grounds of “maltreatment while performing the duty”. The rights and the interests of Jashari as a damaged party were represented by attorneys hired by the Helsinki Committee.

The Basic Court in Tetovo on July 2, 2009 has brought and publicly announced the verdict No. 722/08 finding the defendant guilty and convicting him to six months jail or alternatively with suspended sentence with two years probation.

Dissatisfied with the verdict, particularly the sanction, the Public Prosecutor’s Office in Tetovo appealed the court decision, which was accepted by the Appellate Court in Gostivar at the session held on October 7, 2009. The first degree verdict was changed in the part referring to the sanction and the defendant was convicted to eight months imprisonment.

The Helsinki Committee welcomes the second verdict against the defendant, police officer for maltreatment while performing the duty, and a first one pronouncing effective prison term. We expect the number of convictions against accused police officers for maltreatment and inhuman treatment will increase in future. As a result we hope that the police will become aware of the mistakes and will not protect the police officers at any cost, which are on the rise lately.

2.3. What is more important than respect for the rights guaranteed by law?! Case of Vase Kitanovski, Kratovo

When Mr. Kitanovski from Kratovo addressed the Helsinki Committee he told us that on October 2, 2007 he has filed legal suit against “Sileks Nemetali” Kratovo as his employer. The suit was registered under No. 131/07. The Basic Court Kratovo on January 30, 2008 accepted the legal suit, pronouncing that the defendant should pay to Mr. Kitanovski the following:

O     The difference between the paid salary and the salary he was entitled to, for a certain period of time

O     The benefits for the Pension and Disability Insurance Fund on behalf of the plaintiff for a certain amount of money and for a certain period of time

O     The benefits for the Pension and Disability Insurance Fund on behalf of the plaintiff increased for the years of the work experience for a certain amount of money and for a certain period of time

O     Compensation for annual leave for 2007.

Unsatisfied with the verdict, the plaintiff made an appeal on February 10, 2009 to the Appellate Court in Skopje. The Appellate Court at the session held on January 28, 2010 accepted the complaint, but changed the first degree verdict with the following disposition “the law suit is rejected as ungrounded”. The explanation of the second degree decision reads the following.

O     The Appellate Court found the first degree verdict illegal and interpreted it as “misapplication of material law”, although taking into account the Labor Relations Act the court has made legally sustainable and justified verdict, in the part on salary, determining the amount of the salary and the rejection on the Rulebook on Salaries, for which the evidence showed that it was illegally adopted by the defendant[7].

O     The first degree court did not proceed in the right way when it established that the plaintiff should receive payment for the annual leave, irrespective of whether the other workers were paid and regardless of the financial situation of the defendant, saying that “the defendant was in poor financial situation due to the difficulties in the material and financial work and worked with losses, so the court has found that the plaintiff is not entitled to payment for the annual leave for the disputed time period having in mind the poor financial situation of the defendant and the fact that the other employees also did not receive payment for the annual leave”.

The Helsinki Committee is surprised with the explanation provided by the Appellate Court and wonders what is more important: the poor financial situation of the defendant and the fact that the other employees did not receive compensation for the annual leave or the respect of human rights stipulated in the Labor Relations Act, which represents lex specialis for the workers’ rights.

The Helsinki Committee is seriously worried about breaking the fundamental human rights to health protection and disrespect to human dignity and personality and calls on the competent bodies to undertake urgent measures for overcoming this situation. We still hope that the cases will be finally examined and the final goal will be accomplished!

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[1] Declaration on the Rights of Disabled Persons Proclaimed by General Assembly resolution 3447 (XXX) of 9 December 1975

[2] UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Adopted by General Assembly resolution 46/119 of 17 December 1991

[3] Code of Criminal Procedure (Official Gazette No. 15/05) as of 07.03.2005

Grounds according to which a verdict may be disputed – Article 380

The verdict may be disputed:

1) due to crucial violation of the provisions of the criminal procedure;

2) due to violation of the Criminal Code;

3) due to an incorrect or incomplete factual situation;

4) due to a decision for criminal sanctions, deprivation property interest, criminal procedure expenses, lawful property requests as well as due to a decision for an announcement of the verdict by the press, radio or television.

[4] Kemal Neziri

[5] Code of Criminal Procedure – Article 365

The court finds the verdict only on the basis of the facts and evidence which are presented at the trial.

The court is obliged conscientiously to evaluate each evidence separately and in connection to other evidence and on the grounds of such an evaluation to derive a conclusion whether a certain fact is proved.

[6] A proposal for establishing the criminal responsibility was also filed by the Ombudsman’s Office

[7] Article 105 – Employees are entitled to payment of salaries according to law, collective agreement and employment contract.

Article 107 – The salaries of employees rendering full working hours cannot be less than the lowest salary which is determined according to law or the respective collective agreement.

Article 109 – Salaries are paid for period of time not longer than one month.

Salaries for the current month are paid no later than the 15th day of the following month.