Bimonthly Report (February – March 2011)
PUBLIC DEVELOPMENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES
COURT CASES
VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS
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PUBLIC DEVELOPMENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES
– The right to freedom and safety and (ab)use of the measure of pre-trial detention by judicial authorities.
– Dangerous promotion of the spiral of hatred and xenophobia
– Discrimination in the Law on Family
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The right to freedom and safety and (ab)use of the measure of pre-trial detention by judicial authorities
The Courts continue to turn a blind eye to the numerous remarks by the Committee in its monthly reports regarding the abuse of the measure of pre-trial detention and violation of the right to freedom and safety guaranteed in Article 5 Paragraph 2 of the European Convention on Human Rights. It seems that not only our recommendations but also the recommendations drafted by the judges have not been taken into consideration[1].
A clear example of how easy this measure is imposed is the number of cases among which “Spider Web”, “Metastasis” and “Phalanx”.
In the “Metastasis”[2] case out of the total 36 indicted individuals, there are still three people who have been in pre-trial detention for a whole year. In the vague elaboration used for the prolonging of the pre-trial detention of these individuals the Court copies the legal grounds for imposing this measure.
This type of decisions are disputable also for the European Court of Human Rights in the case “Snake’s Eye” where it was established that the Republic of Macedonia in the relevant case violated the European Convention on Human Rights by failing to provide sufficient grounds for keeping its citizens in constant detention for more than eight months.
The Basic Court at the end of last year made an attempt to replace the pre-trial detention with a softer measure – house arrest in compliance with the legal possibilities, but the Court of Appeal reapplied the old practice stating that they considered that the Court’s decision that the objective of the pre-trial detention measure could have also been achieved with the imposing of softer measure was not justified.
The several attempts to provide bails in amounts that were bigger than the value for which the defendants were indicted (211,507, 466,062 and 720,000 Euros) failed, and the proposals were refused with no real rationale but by repeating the same unsubstantiated explanations such as “the defendant poses a serious risk of flight … the way in which the crime is committed … the prescribed criminal sanctions”.
Finally the Court decided to accept the offered bail. Unlike the bails for the other defendants (which were with evidently smaller risk and were accepted by the Criminal Council), the value of the bail for the first defendant was visibly disproportional indicating unequal treatment of the defendants in the proceedings by the Court.
The European Court of Human Rights establishes that “the need of continued detention cannot be assessed from purely abstract aspect taking into consideration only the seriousness of the offence. It has to be established with references to other numerous relevant factors…”, just like the prolonging of detention CANNOT be used as a kind of a punishment, which often happens in Macedonian reality.
The European Court of Human Rights points out as a problem the fact that the national courts do not elaborate their decisions why the detention’s alternatives are not acceptable for ensuring proper trial.
The Court says that the national courts have not established the existence of any kind of specific fact supporting their conclusions; no reasons have been provided why the consequences and the risk of flight are considered less dangerous for the plaintiffs than their continued detention.
Among the many examples of application of this measure as a punishment and detention of the indicted (de jure but INNOCENT person) for the committed crime are also the cases “Phalanx”[3] and “Spider Web”[4].
The case “Spider Web” that involves 20 persons indicted for criminal association and tax evasion, the pre-trial detention measure for some of the indicted has been going on for almost 5 months. Regardless of the statements of the experts pointing out abuse of the pre-trial detention measure and using it to punish the indicted, the Court continues to turn a blind eye. After the unpleasant developments including the one when one of the female indicted individuals had miscarriage, the Court decided to impose for some of the indicted a softer measure (house arrest).
The Court of Appeal approves the measures imposed by the Criminal Council of the Basic Court, emphasising the particularity, character of the crimes, the level of social threat, the existence of real risk of flight and the possibility of interference with the investigation. Unfortunately, this decision lacks concrete indicators why this measure is necessary. The Court in its decisions finds justification in Article 5 Paragraph 1 of the European Convention on Human Rights, but evidently it forgets the Court’s case law and the constant directions it gives.
Last in the line of cases of abuse of the pre-trial detention measure is the case “Phalanx” in which 23 individuals are indicted of criminal association and stealing cultural heritage owned by the state. The pre-trial detention was imposed in June and to this very day is still on for some of the indicted individuals. The decisions for imposing and prolonging the pre-trial detention measure in this case have the same rationale as in the previous cases “Risk of flight and possibility for the crimes to be repeated”.
The Committee has been repeatedly reacting to the bad practice of the Courts in regard to the measure of pre-trial detention, seen from the aspect of the adoption of decisions with unsupported rationales for imposing and prolonging this measure, non-application of softer measures and at the same time urges the Courts when they impose the measure of pre-trial detention to take into consideration seriously and with due respect the directions and the recommendations given by the European Court of Human Rights.
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Dangerous promotion of the spiral of hatred and xenophobia
The Helsinki Committee is deeply concerned with the emerging of a spiral of xenophobia for which there are fresh examples in our neighbourhood from the 1990s. Nobody’s staying in or winning power is worth chasing away our friends and pushing the state into the murky waters of uncertainty and isolation. The invention of new enemies and new greater problems than the previous ones is not a way out but deepening of the crisis that undermines and stirs up the previously established direction in which we are moving, which are our values and where lies the future of our state.
In the September and October monthly reports from last year the Helsinki Committee for Human Rights of the Republic of Macedonia cautions about the trend of imagining internal enemies, attempts to discredit civil organisations, activists, intellectuals, media and other people and groups that have opinions different from the one of the Government of the Republic of Macedonia.
This way of dealing with and hushing up of those who think differently as a method used in well-known long time ago defeated regimes in Europe, for which we believed would not be repeated unfortunately found fertile soil in our young and fragile democratic tradition. Recently we have been witnesses of intensification of this trend and broadening of the lists of “enemies” by including the foreign representatives in the country. Letters were written and sent to Brussels as well as “messages” published in the media against ambassadors such as Fuere, Filippini, Reeker that are proven friends and supporters of Macedonia. Unfortunately, this is only a confirmation of the characteristics of the political structure that rules with the institutions in the country.
The fear of unfulfilled promises, the constant impoverishment of the people, the non-functioning of the rule of law state, the utter partisation and thus paralysing of the administration as well as the increasing disappointment among the citizens in no way should incite looking for the guilty parties anxiously everywhere, but within one’s own ranks.
We urge the political parties to turn to dialogue and resolving citizens’ problems and to real understanding in the name of the future of the Republic of Macedonia, because by looking for “enemies from outside”, one becomes the enemy to the future of their own citizens and country.
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Discrimination in the Law on Family
The Helsinki Committee submitted a motion to the Committee for Protection from Discrimination with a request to establish discrimination and to recommend amending of the Article in the Law on Family which provisions that: “Under close personal relations this law refers to personal relations between persons of different sex who are or used to be in partner relations, and who do not live in common-law marriage.” A motion is being drafted to be submitted to the Constitutional Court of the Republic of Macedonia for the proposed revoking of this article of the law.
The Law on Family recognises only union between persons of different sex. With this definition of “close personal relations” the Law on Family does not recognise the right of the same sex partners to protection in case of violence in their mutual relations.
Domestic violence appears when certain member of the family, partner or former partner physically or psychologically tries to dominate the other. Domestic violence often refers to violence between spouses or mistreatment of the spouse, but it also refers to partners who live in a common-law marriage and intimate partners who are not married.
The Law on Family of the Republic of Macedonia under domestic violence refers to mistreatment, hurting, threatening the safety, bodily injury, sexual or other psychological or physical violence that results in a feeling of uncertainty, danger or fear on the part of:
– the spouse, parents or children or other persons living in marriage or common law marriage or common household,
– former spouse or persons who have a child together or are in close personal relations, including the relations that are created with adoption or guardianship.
Domestic violence has to be sanctioned by law in all its forms. In no case the protection from domestic violence should be limited to the fact whether the individuals that are involved in the violence are from the same or different sex.
The Law on Prevention and Protection from Discrimination provisions prohibition of any direct or indirect discrimination, calling for and inciting discrimination and assisting discriminatory treatment.
The Helsinki Committee expects that after submitting the motion and initiative, the Committee for Protection from Discrimination and the Constitutional Court as competent bodies will establish violation of the right to protection from discrimination and that the Constitutional Court will revoke Article 94-a Paragraph 2 from the Law on Family.
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COURT CASES
– Violation of the right to trial within reasonable time
(Case – “Snake Eye 2”)
– The (il)legal activities of the enforcement agents remain unpunished
(Case – Sonja Silkoski)
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Violation of the right to trial within reasonable time
(Case – “Snake Eye 2”)
In May 2008 the public was informed about yet another police operation with spectacular arrests accompanied by media coverage, the so-called “Snake Eye 2” operation in which 25 employees of the Public Enterprise “Makedonija pat” were arrested and taken in front of investigative judge.
They were all indicted under the suspicion that as officials of PE Makedonija pat committed a crime of “malfeasance of office”[5] with the intention for the previously indicted individuals in the case “Snake Eye 1” who were toll collectors at the toll stations to gain significant assets. In doing so they acted as a well-organised group for which they are also indicted for the crime of “Criminal Association”[6].
Apart from the violation of the right to privacy by public stigmatisation of the indicted, more than evident is also the violation of the principle of presumption of innocence in a situation when the group of persons indicted for a crime linked to a previous crime for which it has not been proven that it was committed i.e. these persons are accused of assisting the defendants from “Snake eye 1” for whom there is still no effective verdict and there is no proven guilt?!?
At the same time with the initiating of the criminal proceedings the indicted were suspended with an explanation that they violated their duties and discipline because in the course of the criminal proceedings they were placed in pre-trial detention or house arrest and all this connected to their work and working tasks performance. The suspension should last until the finalisation of the proceedings. What’s important is that regardless of the fact that even though the reasons for the suspension the indicted individuals ceased to exist they have not been reinstated to their jobs, yet.
Still, for the irony to be even bigger the case has been stuck in the first instance court for almost three years waiting for the outcome from the previous proceedings in the case “Snake Eye 1” and it is constantly postponed usually due to the absence of the representatives of the public institutions who are subpoenaed as witnesses.
Hence, the defendants are exposed to waiting as well as legal expenses and because of the suspensions also to continued potential violation of their right to work and adequate earning. This creates a situation in which the defendants are suspended but with salaries, and on their positions other individuals are employed who also receive salaries.
The Helsinki Committee concludes that with its irresponsible acting the institutions implement proceedings that are most directly contrary to the principle of trial within reasonable time undermining the legal order and violating the respect of human rights of the defendants in this case because of what the Committee urges the competent officials to change this practice.
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The (il)legal activities of the enforcement agents remain unpunished
(Case – Sonja Silkoski)
In the previous period the work of the enforcement agents has been increasingly in the focus of the public interest by looking into a number of cases in which the enforcement agents acted contrary to the legal provisions, violating the dignity of the person, the rights of the debtors, the ethic norms, the professional standards and the enforcement rules and regulations. Such is the case of Sonja Silkoska that addressed the Helsinki Committee.
The party was served with an enforcement order i.e. handing over of the office with the keys that the Principle of the Primary School “Krste Petkov Misirkov from Demir Hisar used as well as the keys, the stamps and the complete school documentation and they were to be passed on to the creditor.
Even before the effective decision was served, the enforcement agents N.I. on site confiscated the listed items for which there are records.
This was followed by an order forbidding claims by the debtor/party Sonja Silkoska in banks or savings banks thus placing prohibition to claim funds in the amount of MKD 82,886 and forbidding payment and access to funds.
The Deputy President of the Basic Court Bitola with a decision accepted the appeal and revoked part of the undertaken enforcement actions i.e. irregularities were established that consisted of adopting enforcement orders (regardless of the fulfilled obligation) instead of adopting a decision only about the expenses with specification for every cost individually in compliance with the tariff for awarding and other enforcement expenses.
Regardless of the Court’s remarks about the irregularities committed by the enforcement agent N.I. from Bitola a decision was adopted for establishing the enforcement costs in a total amount of MKD 82,886 in which amount also the actions that were revoked by the Court was incorporated.
The President of the Basic Court in Bitola, acting upon the appeal adopted a decision accepting the appeal partially and most of the expenses were revoked. The decision states “the enforcement agent claims costs from the debtor for the actions s/he should not have undertaken and actions that had been revoked. By revoking them it is considered that they were not even undertaken so the debtor could not be charged for those costs”.
The party in 2008 submitted an objection to the Chamber of Enforcement Agents of the Republic of Macedonia regarding the actions of the enforcement agent. Chamber’s Disciplinary Committee forwarded it with a decision to the competence of the Chamber’s President. The Committee elaborated that it was not authorised to decide because the case’s content referred to the application of the tariff for awarding and other costs.
The Committee’s President responded to the objection two years later informing the party that “Having in mind that the enforcement agent in the conclusion for establishing the enforcement costs, tariffed also orders that were revoked, it is MY OPINION that in this section the Tariff for awarding and other expenses of the enforcement agent was improperly applied”.
Apart from the meagre information that the President of the Chamber of Enforcement Agents BELIEVES that the Law was violated, the information does not state WHICH ACTIONS were to be undertaken i.e. whether disciplinary procedure would be initiated for a case in which there were numerous violations considered as “serious violations” of official duties as regulated by the Law.
The Helsinki Committee for Human Rights is waiting for an answer from the Chamber in regard to this case where there is evident violation of the Law on Enforcement (confirmed by the Chamber’s President) and serious violation of debtor’s rights.
In compliance with the Law it is necessary to initiate disciplinary procedure for unprofessional and improper acting by the enforcement agent N.I. contributing to the violation of official duties, bylaws and acts of the Chamber that regulate the work of the enforcement agents.
This is not a simple case of improper application of the Tariff for awarding and expenses but also of ignoring court decisions and threatening the livelihood of the party’s family.
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VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS
– Putting employment transformation from temporary to full-time employment into practice
The employment transformation from temporary to full-time after fulfilling certain conditions envisaged with the Law on Working Relations (strictly linked to expiration of a certain period of time) has been debated at large by the public in the course of the passed month. Still this debate has been going for some time now having in mind that the Helsinki Committee in its reports from December 2007/January 2008 and May 2008 pointed at the legal gap in the Law on Working Relations and consequently the different court practices in regard to this issue.
In addition, the Government in an attempt to “round up” the regulating of this issue with the proposed amendments to Article 46 of the Law on Working Relations as a matter of fact it does not introduce any significant novelties except the possibility for transformation of the working relations in a shorter period of time. This is evident from the fact that not only the employers, the Ministry of Education and Science and the Ministry of Finances, but also the courts are faced with problems even in clear situations of uninterrupted employment for more than five years.
The Assembly of the Republic of Macedonia gave a green light and adopted the proposed amendments to Article 46 of the Law on Working Relations that regulates this issue. Apart from the already envisaged condition in Article 46 (… for the worker to continue working after the end of five years …), according to the new Paragraph 4 the temporary employment contract AS AN EXCEPTION could be transformed if the worker has worked for more than two years on a position that became vacant as a result of retirement or based on other grounds and for which financial funds are secured if the employer establishes that there is permanent need of that employee.
As a matter of fact the circumstances that represent exemption in most of the part are the same as the circumstances (retirement, death, amicable taking over by another institution, termination of the employment contract) under which the employees work for even more than five years. Namely, if until that moment the employment for the position that is vacant has not been transformed after five years or it is not done automatically, then what would be the reason to believe that this new provision would resolve the problem, especially since it is left to the obstinacy of the employer to assess whether there would be a permanent need of the employee.
Especially since so far the employers have not acted in the best interest of the employees and they have made them redundant just before the end of the period envisaged by law only to re-employ them as new employees, which means for a position that is necessary.
The situation is even more alarming since the judicial protection in this field is also absent. Instead for the courts to be the protectors of the Law, some of them even dare with their own practice and incorrect interpretation of the provisions to be the greatest hurdle for the enacting of these provisions.
A classical example of this is the case of the party N.S. employed with a temporary employment contract as a teacher at a primary school continuously from 2000 until September 2008 when she sued for employment transformation into full time.
The Basic Court in Tetovo ruled in favour of the plaintiff and transformed the employment based on the fact that the legal requirements were fulfilled. The Court of Appeal in Gostivar ruled for the proceedings to be repeated because of incorrectly and incompletely established state of affairs i.e. it considered that the Basic Court in Tetovo should have established how many employees work on the same position, and how many are planned with the systematisation act. The Court also underlined that there should have also been approval by the Ministry of Education and Science and for the Ministry of Finance to have had allocated funds for the full time employment.
The Basic Court once again adopted the motion of the sued party stating in its ruling that “the court is competent for the implementation of the Constitution, the laws and the ratified international treaties and not to check whether the Ministry of Education and Science agreed and allocated funds for the payment of the salaries or how many employees the sued party need for the given position”. The Basic Court correctly concluded that “the provision of the Law on Working Relations does not provision anywhere a condition whether and how many employees the sued party needs and whether the Ministry of Education and Science agreed and allocated funds for the payment of the plaintiff’s salaries.”
For this Court the very fact that the party was employed by the primary school continuously with a temporary employment agreement for more than 8 years indicates that there are no legal or financial obstacles for transformation of her employment into full time, which represents correct application of Article 46 of the Law on Working Relations.
And while the higher court is stubborn about something that is not clearly stipulated with the relevant law, the employee remains with unclear employment status and the fundamental rights that emerge form there.
The Helsinki Committee for Human Rights of the Republic of Macedonia once again underlines the need of constructive amending of the disputable legal provisions in order to overcome the obstinacy of the employers, the Ministries of Education and Science and Finance as well as the contradictory court practice in this area. Especially since the courts bypass the obligation of completing the legal gaps and contribute to the broadening of the area of obstinate conduct on the part of the employers and unjustifiably long duration of the temporary employment regardless of the clear position that the court cases for employment transformation should be concluded with an affirmative verdict.
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[1] Association of Judges of the Republic of Macedonia “Guidebook for applying the pre-trial detention as a measure”
[2] The case “Metastasis” – indictments against 36 individuals most of whom are doctors for the crimes of Criminal Associating and Malfeasance of Office in compliance with the Criminal Code.
[3] Total of 23 indicted individuals, most of them for the crime of criminal association and crime of stealing cultural heritage of importance owned by the state.
[4] Total of 20 individuals indicted for crimes of criminal associating and tax evasion.
[5] from Article 353 Par. 5 vv with Par. 3 vv with Par. 1 vv in Article 45 of the Criminal Code
[6] according to Article 394 Paragraph 2 of the Criminal Code.