Proceedings before THE ECHR
Case E.A. versus North Macedonia
During the course of 2018 the Helsinki Committee for Human Rights drafted and submitted an application before the European Court of Human Rights (ECHR) based in Strasbourg for violations of the rights stipulated under Articles 3 and 14 relating in the light of Article 3 of the European Convention on Human Rights (the Convention).
Specifically, this is a case of an 8 years old child who, while undergoing a medical intervention, was verbally and physically abused by a medical staff at a hospital in a remote part of Macedonia. While this case was promptly reported, first in the police and then before the competent prosecutors’ office, the prosecutors’ office refused to make indictments and pursue a criminal procedure. After exhausting all domestic legal remedies, the juvenile applicant with the legal aid provided by the Helsinki Committee and their legal counsel submitted a timely application before the ECHR in Strasbourg.
More specifically, the violation of Article 3 of the Convention consists of the victim’s exposure to inhumane and degrading treatment and punishment by receiving blows on the face and mouth and humiliation perpetrated by the official medical personnel on staff with the public health service, while this is forbidden in the country. The Court’s jurisprudence determines that for any inhumane treatment, there must be a minimum level of cruelty inflicted in order for such act to cover the features prescribed by Article 3 of the Convention. The assessment of such a minimum, according to the nature of things is relative and it depends on the circumstances surrounding the case, such as the duration of such treatment, the effects upon the victim’s physical and mental health and in some cases, the gender, age, health status or similar circumstances connected with the victim.
The Court held any inhumane treatment as being a premeditated act or possibly premeditated act and/or any treatment which lasted or caused actual bodily injury or intensive mental suffering. In this concrete case each of the above elements do exist in the acts of the official medical staff, i.e. the child received “corporal” punishment by inflicting blows and directing insults at him in order for child to calm down. The staff acted in this manner by prejudice towards Roma children as though each Roma child is prone to “misbehavior,” while disregarding the circumstances of intense crying and defiance manifested by the child as signs of intense pain due to the victim’s (child’s) fracture. During the course of this, additional bodily injury has been inflicted on the victim manifested as edema in the area of the victim’s face and bleeding on the mouth, all of which according to the expert witness, with subspecialty in Traumatology, might have occurred only by receiving blows with blunt force and not during the intervention or by doing self-harm by the victim’s hand. In addition to actual bodily injury, the applicant was subjected to intensive mental suffering by the beating and the abuse inflicted by the official medical staff. The treatment will be held as “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. (Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). In our present case the elements of degrading treatment and suffered by the applicant which was inflicted by the official medical stuff, are also met, in accordance with the statement “The child is mischievous and must be beaten even more” or the statement “You will hurt, you will hurt, and you will ask yourself will it hurt even more,” inflicting a sense of fear, anguish and inferiority in the victim.
In addition to this, the age of the applicant must be taken into consideration, aged only 8 years of age during the course of the event and the fact that it suffered harsh physical pain during a course of multiple hours because of fracture of the hand. In such a context, the actions undertaken by the official medical staff do cover the features stipulated in Article 3 of the Convention (Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280-A, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007).
There is also a procedural aspect in contravention of Article 3 of the Convention. Namely, the State has undertaken an obligation to conduct detailed and effective investigation. This involves undertaking all reasonable steps available to the State for gathering evidence, including gathering statements under oath and forensic proof, during the course of which, serious efforts must be made to identify the circumstances and the perpetrators and bring them to justice according to the law, while the victim must receive equitable compensation (Jashar v. Macedonia; Dzeladinov v. Macedonia). The law enforcement bodies (prosecutor) gave credence exclusively to the statements of the suspects, the other medical staff – the witnesses who participated in the incident and the findings of the expert witness, even though these evidence are contradictory and mutually exclusive. On the other hand, the prosecutor’s office failed to take into consideration the statements of the mother, the plaintiff and the witnesses of the plaintiff during its deliberations, and the expert witness findings given by the subspecialist were considerably ignored, since they were entirely contrary to the previous expert witness’ findings and evidence which formed the basis for the decision reached by the prosecutor’s office.
The Convention prohibits any type of discrimination against people based on their ethnic background. From a material aspect of the crime, the abuse suffered by the applicant inflicted by the official medical staff is a result of prejudice and stereotypes against the Roma and the Roma children, i.e. a preconception of their ill or bad upbringing, their inability to behave well in particular situations and their inability to respect authorities. This is evident in the statement “You have raised your child so badly, it kicked me in the stomach, I do not wish to treat such patients” as said by the first accused who kicked back the applicant as punishment for the applicant’s bodily reflex kicking caused by the pain, concluding that this was due to the child’s ill upbringing. Prejudice and stereotypes against the applicant have become evident in the statement given by the medical nurse who said “This child is so badly brought up and needs more beating in order for it to come to its senses,” as well as from the statement of the second person accused who, after the applicant sought help from the mother shouting that it was being beaten, said the following “We finished our job and we have nothing else to do with you.”
The application was deemed admissible and it is now at the stage of deliberation before the European Court.
Case POA (Orthodox Ohrid Archbishopric (POA) or Greek-Orthodox Ohrid Archdiocese of the Peč Patriarchy v. North Macedonia
Application 3532/07
The applicants have made efforts since 2004 to register their religious community according to the applicable law. Since they failed to do so before the Commission (in accordance with the 1997 law) they exhausted all domestic legal remedies and submitted their Appeal before the European Court of Human Rights for violations of Article 11 interpreted in the light of Article 9 of the Convention. In the meantime, in 2009 a new Law was adopted on the Legal Status of Churches, Religious Communities and Religious Groups (Official Gazette no. 113/07), pursuant to which the applicants resubmitted their request for registration of their church in the applicable register.
However, this request was rejected by the Register Court in North Macedonia and all other higher instance courts in the country, by which all the conditions for opening proceedings with the European Court on Human Rights (ECHR) were met, thus the applicants lodged their application before the Court in Strasbourg for violations of the above Articles of the Convention, which was annexed with the existing case number 3532/07.
The ECHR assessing all the alleged claims in the appeal, all evidence submitted, the response of the State, and while assessing the legal framework of the respondent State, as well as the international standards referring to the freedom of religion and beliefs, referring to its jurisprudence for the protection of this right, HELD THE FOLLOWING JUDGEMENT (see JUDGEMENT) THE RESPONDANT STATE (i.e. the Republic of North Macedonia) violated article 11 of the Convention, interpreted in the light of Article 9. The ECHR provides its assessment in The Court’s Assessment paragraphs of the Judgement (see paragraphs 93-123) covering each of the aspects of the undue processes applied by the State in the present case, specifically elaborating the general principles of the Court’s case-law, in connection with the present case, considering the alleged shortcomings in the requests made by the applicant before the national authorities and courts, while giving its most detailed account regarding the “foreign” background of the applicant and its intended name.
In April 2019, Judgement 3532/07 of the ECHR became final and must be executed before the national authorities as determined in the Court’s judgement.
In accordance with Article 46 of the European Convention on Human Rights, the State, having signed and ratified the Convention, undertakes to abide by the final judgement of the ECHR, and such final judgement shall be transmitted to a Committee of Ministers, which shall supervise its execution.
The execution of the final judgement is performed by measures (individual and/or general) undertaken by the respondent State.
The individual measures cover the removal of consequence, which in the present case would entail allowing registration of the legal subjectivity of the Greek-Orthodox Ohrid Archdiocese of the Peč Patriarchy as separate religious community.
This is governed in detail by current regulations, more precisely by the Law on the Execution of Judgements of the ECHR, Article 5(1)(12) defining the individual and general measures. Articles 22 and 24 define the procedures for the execution of final judgements held by the ECHR. Article 25 defines that the State (the Republic of North Macedonia) will undertake all individual measures via its bodies listed in Article 24 (see Article 24 of the Law) to remedy any violations and consequences which occurred as a result of the violation caused by the established violation and situation of the plaintiff. In the present case, this would entail cancelation of the first instance decision and all consecutive decisions upholding the first instance one and accepting as admissible the request submitted by the Greek-Orthodox Ohrid Archdiocese of the Peč Patriarchy for registration in the Register maintained by the Basic Court Skopje 2 and registering the Greek-Orthodox Ohrid Archdiocese of the Peč Patriarchy in that Register.
While the procedure for initiating the execution of this judgement was already submitted by the applicants before the national courts and authorities, the judgement is yet to be fully executed. Namely, the State paid without delay the just satisfaction for damages, as well as for costs and expenses, however the consequences resulting from the perpetrated violation, i.e. the REGISTRATION of the Greek-Orthodox Ohrid Archdiocese of the Peč Patriarchy is yet to be executed.
Communication with the ECHR relating to pending applications
In the Case of X and Y v. Macedonia, submitted for alleged police brutality inflicted against the applicants, the Helsinki Committee was summoned as third party intervention, after which, the Helsinki Committee drafted the Communication and within the deadline submitted it to Court.
In the Case Boškovski v. Macedonia, in April 2018, the Helsinki Committee in a capacity of legal representative of the applicants submitted its written observations within ECHR’s deadlines, responding to the statements made by the State in its written observations.
Final Proceedings before ECHR
In the pending application regarding the case of Žaklina Dimovska versus Macedonia, the European Court received written notification that the Skopje Prosecutor’s Office has initiated a criminal procedure against reported persons since there was reasonable doubt that with their actions or inactions they are guilty of deteriorating the health status and causing death of the juvenile daughter of the applicant. Thereafter, the Court submitted to the Helsinki Committee a communication that the application was deemed by the Court as inadmissible and that this case is closed.
In the pending application regarding the case Frčkovski versus Macedonia, in which the applicant submitted his appeal complaining to the Court that he was subjected to lustration proceedings, during the course of 2018, the ECHR requested the applicant to respond weather he remains with the application. The Court received due response. After this communication, the European Court deemed the application inadmissible and closed the case.