Monthly Report (February 2010)
1. PUBLIC EVENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES
1.1. The pillory continues
1.2. Draft Law of Associations and Foundations
1.3. The absence of efficient implementation of the laws on the rights of the patients threatens their right to life!
1.4. The discrimination of the rights to religion and conviction according to the Constitutional Court are not in it’s competence!
1.5. Legal manipulation with the decisions for the payment of the broadcasting tax
1.6. The case of Ljuben Paunovski or an excellent example how the court in stead of providing justice is doing things to spite somebody or to avenge in its own or somebody else’s behalf.
2. CASES INVOLVING THE POLICE AND THE COURTS
2.1. Justice in the case of the Pro-Credit Bank robbery
2.2. Precedent in the judicial practice. The case of Boris Istov Stoilkov
2.3. Illegal detention – the case of Zlate Trajkovski from Skopje.
2.4. Illegal detention – the case of N.N., a citizen of Skopje.
2.5. In-“efficiency” of the system – the case of Zlatko Ilievski
3. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
3.1. Restriction of the right to property. The case of M.A. from Skopje.
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1. PUBLIC EVENTS AND VIOLATIONS OF DEMOCRATIC PRINCIPLES
1.1. The pillory continues
The Ministry of Transport and Communications in a daily newspaper in a paid add made public the names and surnames together with the personal data of a number of citizens who were sanctioned for misdemeanours in compliance with the Law on Public Cleanness. With this add the Ministry of Transport and Communications violated the Law of Personal Data Protection. The add could be understood as a direct message/threat to the citizens and an attempt to discipline them with non-democratic measures that remind us of some past times.
Targeting and pillory is also evident also in the pointing out of a number of public personalities and activists of various social movements as “traitors and spies” in the attempt to silence their disagreement with certain policies of the ruling structures. This public pointing makes these people vulnerable and under high risk of becoming victims of violent attacks, creating a feeling of fear and insecurity among all the citizens. Having the threat of a public lynch hanging over roots out any attempts of plurality of public opinion and actions, and places the political correctness towards the ruling structure on a pedestal, stimulating self-censorship and endangering the foundations of democracy. Consequently our society enters into a phase of utter hypocrisy, which eats out from inside the mechanisms of democracy and freedom.
The attitude of the state institutions in the process of adopting the Law on Prevention and Protection against Discrimination is another example that depicts this atmosphere. The public debate in the Standing Inquiry Committee for Protection of Civil Freedoms and Rights confirmed the conviction of the civil sector that the majority in the Assembly of the Republic of Macedonia has no intention of working on improving the unfortunate text of the Draft Law submitted by the Government. Upon an initiative of the Helsinki Committee Ulrike Lunachek, a member of the European Parliament and a Spokesperson of the European green parties also attended the debate. However, regardless of the points made by her as well as by the experts and the activists for human rights that the Draft did not fulfil the minimum standards and did not provide effective implementation, monitoring and protection, the dialogues unfortunately turned into monologues. In an attempt to draw the attention to the essential shortcomings of this draft law two grounds were abused (conviction and sexual orientation), i.e. their erasing redirected the debate solely on them. Consequently the very procedure of the adoption of the Law on Prevention and Protection against Discrimination became discriminating. It is impossible to talk about marriage and adoption of children by homosexuals (issues regulated with the Law on Family); instead of debating about an independent mechanism that the Law on Prevention and Protection against Discrimination lacks or why hate speech is not covered by the law (all the remarks by the Helsinki Committee in regard to the Law on Prevention and Protection from Discrimination could be found on http://www.mhc.org.mk). The biggest victims of this spin procedure are the LGBT people, as well as those who have no religious convictions. These marginalised groups are under constant pressure and live in fear of utterly stigmatising actions by the representatives of the state institutions.
In all these processes the defenders of human rights are also under attack with a constant tendency for discrediting and marginalising the civil organisations which is a direct attempt to eliminate one of the most important correctives of the authorities.
Especially worrying is the hate speech in the media and the public appearances of the politicians regarding the “asylum crisis”. In an attempt to cover up the violated constitutional right to social security and to hide the poverty in which the citizens in the country live the Albanian and the Roma communities are stigmatised as the “guilty parties” for the problem with the influx of asylum seekers in the European Union. Almost everybody that sought asylum as a reason stated the economic weariness and poverty in which they live. That is the real reason for the huge outflow of citizens from the Republic of Macedonia. So far the Government has not undertaken efficient measures for overcoming poverty in the country, and consequently it is responsible for the inability to enjoy the right to social security, guaranteed with the Constitution. In order to cover up this violation of the rights, two ethnic communities and some tourist agencies are targeted as the sole guilty parties for this problem which threatens the visa liberalisation. This type if representation of the problem hurts the efforts for building mutual trust and co-existence among the citizens of different ethnic origin and it covers up the (non)functionality of the state in the field of social protection and safety.
The Helsinki Committee regretfully concludes that all these acts worsen the conditions and the atmosphere for exercising human rights in the Republic of Macedonia. Furthermore, it constantly feeds the conflict in the interethnic and inter-confessional relations. The hate speech, targeting of the marginalised groups, the human rights fighters and the civil organisations creates conditions for increasing the stigma and violence among the most vulnerable groups and citizens, and by processing a non-functional Law on Prevention and Protection against Discrimination, the state makes an effort to maintain this atmosphere of fear, distrust and conflict, which results in citizens’ withdrawal and giving up on the defence of their rights.
1.2. Draft Law of Associations and Foundations
Article 20 in the Constitution of the Republic of Macedonia regulates to right to free movement. In compliance with this article the Constitution regulates the freedom to associate by marking the objectives of the association that are expressed in exercising and protecting the political, economic, social, cultural and other rights and convictions, and the organisational forms of associating in associations and political parties are established.
In 1998 the Law on Citizens’ Associations and Foundations – LCAF was adopted (“Official Gazette of the Republic of Macedonia” No. 31/98). The application of the LCAF in the years that followed shows the existence of certain shortcomings and the need to adopt a new Law on Associations and Foundations imposed itself. In addition, it was necessary for the provisions that regulated the work of the citizens’ association and foundations to be harmonised with the European regulations and practices.
However, from the very beginning the problem with transparency emerged. The Draft Law was drafted without the broad involvement of the NGO sector (the involvement of two NGO does not represent broad participation of the NGO sector). The NGOs got the draft law in February 2010 when it already was adopted by the Government of the Republic of Macedonia and forwarded to the Assembly.
At that time the NGO representatives with great surprise found out that ever since 2007 representatives from the Civil Platform of Macedonia (CPM) were involved through the Foundation Institute Open Society Macedonia (FIOSM) and MCMS participated in the working group.
The Draft Law on Associations and Foundations clearly shows the intention of the drafter to place the associations under its control. The law is full of obligations and sanctions for the associations and foundations but it does not offer anything that would support their activities.
The provisions in the law, such as “Organisations with a status of public interest will enjoy tax and customs exemptions in compliance with a law” do not offer any support for the associations. It also does not establish the type of tax and customs exemptions, nor the deadline and the laws that would regulate these exemptions.
The grand announcements of the Minister of Justice that this law is more liberal and now the minors can found associations makes us remind the Minister of the Convention on the Rights of the Child where Article 15 confirms the right of the child to associate.
The provision in Paragraph 3 that for minors to found an association they need a notarised statement issued by a notary that their legal guardian approves the foundation of the association for the purposes for which the association is founded in accordance with the law, is utterly unnecessary and contrary to the Convention on the Rights of the Child. Given that Article 19 provisions that the founders are members of the association with equal rights and responsibilities as all the other members of the association, they do not have additional rights or responsibilities and there is no need to burden the procedure with additional notarisation of statements, if a minor is the founder.
Moreover, we have to remind the Minister and all those who consider this law to be better than the previous one that Article 21 in the old law envisages: A member of an association of citizens could be any citizen with Republic of Macedonia’s citizenship who joins the association on voluntary bases as regulated by the statute. Meaning that the minors without any additional limitations were able to be members of an association, and now with the new “more liberal” law a minor at the age of 14, and before reaching the age of 18 could become a member of an association only by providing a notarised statement from his/her legal guardian allowing his/her membership in the organisation in compliance with the law. Instead of progress, this is a step backwards in the area of protection and enjoying the rights of the children.
Few more other articles in the Draft Law that need to be deleted are those that refer to banning the organisation to perform its activities and violation of the procedure for banning the organisation to perform its activities.
The procedure for banning organisations (legal entities) to operate is already fully regulated with the Law on Criminal Procedure and the Criminal Code. Article 96-a (from the Criminal Code which is currently effective) provisions the sanctions for a legal entity that committed a crime and as part of the sanctions temporary ban to perform a specific activity, permanent ban to perform a specific activity and termination of the legal entity are already regulated.
Even more these sanctions are elaborated in the 2009 amendments to the Criminal Code[1], which will become effective in March 2010 and it is pointless to duplicate these legal provisions in the Law on Associations and Foundations.
The Helsinki Committee drafted a brief analysis[2] of the articles in the Draft Law on Associations and Foundations that we believe should be immediately amended or erased.
We expect from the Ministry of Justice as the drafter of the law to withdraw it from parliamentary procedure and to start working on its improvement.
1.3. The absence of efficient implementation of the laws on the rights of the patients threatens their right to life!
The public in the Republic of Macedonia within two months was shocked by the death of three women that gave birth in the Prilep hospital, one in the Gostivar hospital, another one in the Skopje main hospital and who knows how many others for whom the media had not reported.
Apart from the assurances that “the case will be investigated” none of the competent authorities provided an answer what has been undertaken after investigating the case and establishing the reasons for it. Has anyone from the managing structures been hold responsible and replaced or has a doctor’s error been established and consequently proceedings are initiated against the doctor or maybe it has been established that the hygiene is on a low level and measures have been undertaken to overcome the problem?! However, nothing of the kind will happen until the next case that the media will report about and which will call for “investigation”! So the caravan passes while the dogs bark and the people die!
In Macedonia there is a Law on the Protection of the Rights of Patients that regulates the issues of privacy and confidentiality of the patients’ data, their familiarisation with the illness, their approval of certain interventions, legal advices from the hospital staff, a right to submit motions and complaints but obviously it does not apply when the patients are not able exercise their principle right to health protection in humane conditions!
In times when all the modern democracies have debates about finding solutions to improve the already enhanced rights with new technologies and analyses, in the Republic of Macedonia instead of discussing about the right to health protection we will have to discuss the issue how to protect the right to life when entering a hospital!
The Helsinki Committee is seriously concerned with the violation of the most basic human rights to health protection and disregard of human dignity and personality and urges the authorities to urgently undertake the measures necessary to overcome this situation. The only thing that remains is to hope that the cases will be finally investigated and the appropriate objective will be achieved.
1.4. The discrimination of the rights to religion and conviction according to the Constitutional Court are not in it’s competence!
The overall public opinion in Macedonia is that due to the absence of an umbrella law for prevention and protection against discrimination the citizens have no mechanisms to protect themselves from this kind of phenomena, so the people do not even recognise discrimination or if they do they do not report it setting of from the conviction that there is no way of protecting oneself from it.
Still it seems that the broader public also includes the Constitutional Court which taken by this generally accepted lie forgets that it is competent and obligated to protect the citizens against discrimination based on certain grounds.
Namely, Articles 16, 19 and 20 from the Constitution of the Republic of Macedonia guarantee the rights to religion as well as the right to free and public, individual and in a community with others expression of faith. At the same time Article 110 in the Constitution proscribes that the Constitutional Court protects the freedoms and the rights of the human and the citizen that refer to the freedom to conviction, conscience, thought and public expression of opinion, political associating and action and prohibits discrimination of the citizens based on gender, race, religion, national, social and political background.
This competence of the Constitutional Court needs to be implemented though Article 51 of its Rules of Procedures according to which “every citizen that believes that with an individual act or action the right or the freedom established in Article 110 indent 3 from the Constitution of the Republic of Macedonia is violated, could ask for protection from the Constitutional Court within a period of two months from the day of delivering the final or effective individual legal act…”.
Unfortunately once again the practice has shown the opposite. Namely, in compliance with what was stated before, the representatives of the Orthodox Ohrid Archbishopric (OOA) after their registration application was rejected by the competent bodies, they addressed the Constitutional Court for the protection of their freedom to conviction and religion that was rejected.
The elaboration of the Constitutional Court’s rejection states among others that “the Constitutional Court of the Republic of Macedonia is not competent to decide about the rights and the interests of the citizens in specific cases for which the administrative and court institutions are competent, nor that the Constitutional Court has the competence to act as a higher instance court that assesses the constitutionality and legality of the decisions of the competent administrative bodies to establish whether Articles 16 and 19 from the Constitution are violated, to which as a matter of fact refer the assertions in the request in this case.”
This attitude of the Constitutional Court was also confirmed with the decision to reject the request by Olimpijada Mizimakovska for protection of the rights related to the freedom of conviction and the prohibition of discrimination based on religious affiliation, and which she believes were violated with the effective court decisions by both the Basic and the Appellate Courts in Skopje.
As before, the Constitutional Court declared itself as incompetent to decide about the rights of the citizens that were previously a matter of court proceedings, neglecting the fact that a religious community is registered with a court decision in order to be able to practice certain religion, and the court decision is the single act that the Constitution speaks about.
Still this does not prevent the state to claim before the Court in Strasbourg that this mechanism in the Rules of Procedure of the Constitutional Court is an efficient legal means that the citizens could utilize to ensure protection of their rights. To be exact, the very claim by the Government in the case of Jovan Vraniskovski before the Court in Strasbourg and the failure by the Applicant to utilize this legal means was the main reason why his application was rejected by the European Court of Human Rights.
However, the Constitutional Court remains consistent about its competence and contrary to the claims by the Government, and with the same explanation as before adopted a Decision refusing the request by Jovan Vransikovski for protection of the freedom to conviction, conscience, thought and public expression of opinion.
Because of this type of reasoning by the Constitutional Court of the Republic of Macedonia, which regardless of the fact that according to the Constitution and the Rules of Procedure it is competent to decide in cases of discrimination and violation of the right to religion by the state, in three cases so far did not even looked at the facts of the cases declaring itself incompetent to decide, the Helsinki Committee addressed the European Court of Human Right with a request to review its Decision in the case of Jovan Vraniskovski.
The Helsinki Committee sincerely hopes that Macedonia will finally deal with the belief that there is no mechanism for protection against discrimination and the Constitutional Court will soon recognise its constitutional obligation and it will start acting upon the citizens’ requests for protection of their rights guaranteed by the Constitution.
1.5. Legal manipulation with the decisions for the payment of the broadcasting tax
The Helsinki Committee as most of the legal entities and households in the Republic of Macedonia (regardless whether its owners are life or dead) during the summer period, last year received decisions to pay the broadcasting tax. The decisions were based on the Law on Broadcasting[3].
The decisions state the following legal instruction “The decision could be appealed within 15 days from the day of receiving the decision to the Board of Directors of the Public Enterprise MRT.”
The Helsinki Committee utilised the legal framework and within the legally envisaged period appealed in compliance with the legal instruction to the Board of Directors of the PE MRT. The appeal was rejected as unfounded by the second instance body with a Decision[4]. The received second instance decision states the following legal instruction “The Decision could be appealed in an administrative proceeding before the Administrative Court of the Republic of Macedonia within 30 days after receiving the Decision.”
The Helsinki Committee utilised the legal instruction and initiated an administrative proceeding before the Administrative Court of the Republic of Macedonia. The Court on a meeting held on 22 January 2010 adopted a Decision that rejected the administrative dispute lawsuit as inappropriate[5].
The elaboration of the Decision states the following:
– the lawsuit is not allowed and should be rejected;
– in the specific case it is a lawsuit submitted by the plaintiff to annul the act adopted by the MRT’s Board of Directors in a procedure related to the appeal against the decision that has a character of an executive document;
– in the specific case the decision that has a character of a MRT executive document a right to appeal to the MRT’s Board of Directors is given, a right that neither the Law on Broadcasting, nor the Amendments to the Law envisage;
– no provision in the law states that MRT’s Board of Directors is competent to decide on appeals even though Article 138 from the Law gives the possibility for this body to do other things established by the law and the Statute of MRT, a statute that should be harmonised with the law;
– the law and the amendments do not envisage the right to have an administrative lawsuit against a decision made by MRT’s Board of Directors.
The Helsinki Committee is astonished by the possibility for legal manipulation to which the citizens of the Republic of Macedonia are exposed. With this chronology of events the citizens on one hand have a right to appeal, i.e. to initiate an administrative proceeding, and on the other hand do not have that right because it seems that they initiate a wrong proceeding for which they are not responsible (based on the legal instruction they got).
1.6. The case of Ljuben Paunovski or an excellent example how the court in stead of providing justice is doing things to spite somebody or to avenge in its own or somebody else’s behalf.
In Mr. Ljuben Paunovski’s court trial, who is convicted for the crime of “abuse of an official position and authorities” a number of irregularities happened that the Helsinki Committee already informed about in its monthly reports and with special public statements.
Unfortunately the violations in the course of these proceedings continue. Even upon the second repeated request for retrial a Decision was adopted which states that “In the course of the first instance proceedings, based on all the presented and assessed evidences the factual situation was correctly established, which is also evident from the verdict by the Skopje Appellate Court K.Z. Br. 1139/07 from 18 and 19 September 2007, that fully confirmed the first instance verdict, and the two verdicts were subjected to a reassessment due to the submitted legal remedy – appeal for extraordinary re-examination of an effective verdict before the Supreme Court of the Republic of Macedonia which was refused as unfounded…”.
The new evidences stated and attached to the request for retrial unambiguously prove that a significant sum of MKD 2,950,000.00 (in 2001 it was far more than three hundred average salaries) from the money that were paid to the account of HS Company by the Ministry of Defence were pilfered by Z.S. who owned the HS Company after this company got and concluded two agreements with the Ministry of Defence and all these without the knowledge and contrary to the will of Vladimir Taleski and Ljupco Petkovski. The first instance court stated that this significant sum was spent by Paunovski and the other convicted individuals for their own personal needs and imposed the obligation to return it, and the new evidences clearly show that it was not the case.
The only way to examine these evidences and to establish the real factual situation is to have a retrial.
Our colleagues from Transparency Zero Corruption made their contribution in the bundle of legal acts, statements, analysis proving that Mr. Paunovski was deprived of the elementary right to defence. In their analysis they offer the following conclusion: “The Court incorrectly and/or incompletely established the legal regulations and in compliance to the procedures and the circumstances for the classification of certain documents, but used as evidence, and due to the incompletely established circumstances from the substantive law adopted wrong conclusions that are embodied in the verdict.
Based on this there is founded suspicion that the Court adopted a verdict which does not justify and correctly establish all the incriminating circumstances for having a crime according to Article 353 (3) from the Criminal Code of the Republic of Macedonia, and also one cannot rule out the violations of the provisions on just trial and some other provisions from the European Convention for the Protection of Human Rights and Fundamental Freedoms which is equally valid legal source in the Republic of Macedonia.”
The obvious question here is how it is possible in a situation when all the analysis point at the existence of violation of the law, the Court does not accept any of the additional evidences and makes no efforts to check the assertions of possible violation. Do we have here a case dealing with the right to a fair trial or something else?
2. CASES INVOLVING THE POLICE AND THE COURTS
2.1. Justice in the case of the Pro-Credit Bank robbery
Recently the Basic Court Skopje 1 convicted the defendants Maloku Florim, Tahiri Avdil, Rustemi Idriz and Tahiri Bislim that on 10 April 2009 at around 9.30 A.M. in Pro-Credit Bank in Skopje in a group consisting of the defendants along with 5 other unknown persons committed a crime of robbery and other serious crimes that disturb the general safety.
The Helsinki Committee for Human Rights had its representatives monitoring the criminal proceedings in this case and based on the hearing of the defendants and of the witnesses, the presented written evidences the question is whether the justice was really served and whether this case of robbery was really resolved. More specifically, the question was whether the facts important for the adoption of the legal decision were truly and beyond any doubts established and how and whether the facts that go to the advantage of the defendants were heard and reviewed with the same attention as those that go to its disadvantage.
This is drawn from the following conclusions from the monitoring of the criminal procedure: the statements of most of the witnesses only confirmed what most of the public already knew and that was a detailed description of the whole incident, but nobody had really seen the faces of any of the perpetrators; with the exception of two protected witnesses with hidden identity who were on Samoilova Street which the perpetrators used for their getaway when they hit with their vehicle another one because of what one of them got out for a brief period of time and had his mask pulled out from his face up to the forehead. They picked out the defendant Tahiri Avdil from the photos they were shown. However, this is contrary to the statement made by the witness who owned the car that was hit and who was closer but who claimed that the individual had his mask on the entire time. Also the statements of the two police officers, especially the one that was seriously injured only confirmed the inefficiency of the police who were not able to send a back-up team to intervene in the broad daylight, in the very centre of the city while the robbery and shoot out was going on, leaving those two police officers alone to handle about ten armed robbers.
It seems that the Court did not took into consideration the statements by several witnesses that confirmed the alibi of the defendant FLorim Maloku that on the day in question he was in Kosovo, especially the stamp on his passport showing the exit from the Republic of Macedonia a day before the incident in question that evidently impose the question whether the Court circumvented the facts that unambiguously go to the advantage of the defendants.
Especially since the only evidence in the criminal procedure was the expert opinion or as the Public Prosecutor’s Office refers to it the criminal-technical processing done by experts – inspectors from the Department for Criminal Technique at the Ministry of Interior which legality was not fully established. Namely, there is a report from the crime scene investigation and the items that were collected and which were used in the crime, where the expert opinion states that a request was sent to the experts from the Department for Criminal Technique for expert analysis of the traces found on the scene to be conducted. More specifically, they also searched the vehicle and they did not have a court warrant from the investigative magistrate and not only that there were no independent witnesses present, but there were also no records of the search they carried out (evident from the records from the main hearing regarding the testimony of the expert). For that purpose they collected evidences from the vehicle, cigarette stubs, human hair, they were isolated and analysis was conducted with a comparative biological material provided by MOI for certain individuals. According to the Public Prosecutor’s Office it was a pre-trial procedure and the investigative magistrate was orally informed about their findings and they in compliance with the Law on Criminal Procedure handed over to the MOI i.e. the Department for Criminal Technique the conducting of certain operations such as providing assistance, because of what it is considered as criminal-technical processing in compliance with the Rulebook on Police Operations and not as a classical type of CSI which on the other hand imposes the question about the level of serious approach in the actions of the competent institutions when collecting evidence for such serious crimes.
Without going deeper into the way in which the crime scene investigation was conducted, the thing that catches one’s eye is the fact that the only evidence against the defendants Florim Maloku and Rustemi Idriz was the DNA comparative analysis that showed positive when the DNA traces found in the vehicles were compared to the DNA samples of the defendants. However the assertions about the taking of smear from the mouth of the defendant in two occasions without a court warrant for that purpose on 13 April 2009 for another crime (for which the criminal charges were dropped) and on 29 April 2009 when he was taken into custody for this crime are not sufficiently investigated. This especially raises concerns because if the established DNA traces could be the only piece of evidence that convicts individuals for such serious crimes when there are overwhelming evidences to the advantage of the defendant, how it is possible in the expert analysis and at the main hearing to have a statement that the collected DNA traces showed overlapping with the DNA profiles of two other persons A.H and A.E., and these two individuals are never mentioned in the further criminal proceedings.
The Helsinki Committee sincerely hopes that the Appellate Court in Skopje in the course of the appeal proceedings will have a more serious approach when looking into the legality of the presented evidences, the comprehensiveness and truthfulness of the established factual situation, especially due to the fact that we are talking about serious crimes with serious consequences that demand also a more serious approach by the Public Prosecutor’s Office when bringing charges.
2.2. Precedent in the judicial practice. The case of Boris Istov Stoilkov
In compliance with the Constitution of the Republic of Macedonia: “A person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law.” The Law on Obligation Relations states that: “…for suffered physical pain, for suffered psychological pain, for discrediting the reputation and the honour, violation of the freedom and the rights of a person … if the court establishes that the case circumstances, especially the severity of the pain and the fear and their duration justify that, it will impose applicable monetary redress…”. The same right is more specifically regulated in the Law on Criminal Procedure in a separate chapter titled Redress Proceedings for damages, rehabilitation and exercising other rights for people that were wrongfully convicted and who were detained illegally in the absence of grounds for that[6].
Unfortunately, lately we are witnesses of a practice where in case the defendants are acquitted and were previously subjected to pre-trial detention, the public prosecutor demand protection of legality. The thing that raises even bigger concerns is the establishing of a practice for the Supreme Court of the Republic of Macedonia when deciding on such requests, since according to the law it cannot change an effective verdict to the disadvantage of defendant, to conclude with a declarative verdict that in the proceedings in which an effective verdict was adopted the substantive law was breached.
This practice so far has been understood as a measure utilised by judiciary to protect the Budget of the Republic of Macedonia having in mind the fact that when exercising the right to redress as a result of unfounded detention, the civil court would take into consideration this verdict of the Supreme Court as the bases for reducing the amount for compensation since, as we all know, from the legal aspect the declarative verdict has only a declarative character and it does not change anything in the existing established relations.
However, the Helsinki Committee for Human Rights was astonished by the Stip Appellate Court’s decision which is definitely a precedent in the judicial and the legal practice in general.
Namely, this procedure against the individual Boris Istov Stoilkov for exercising the right to redress due to the unfounded detention, since with an effective verdict by the Appellate Court he was acquitted of all charges, but he spent 98 days in custody, the Basic Court in Strumica quite rightfully allocated certain compensation to him for that purpose. Upon the appeal by the sued Republic of Macedonia – the Ministry of Justice did not challenging the grounds of the charges, but only the amount of the allocated compensation, the Stip Appellate Court adopted a decision terminating the first-instance verdict and returned the case for retrial, instructing the first-instance court to take into consideration the Supreme Court verdict for protection of legality.
The Basic Court in Strumica regardless of that verdict that denied the right to redress, since it was the effective acquittal verdict that remained in legal effect, once again and in compliance with the law allocated compensation, but of a smaller amount than the previous one.
Unfortunately, and at the same time astonishingly, the Stip Appellate Court adopted a decision that the verdict was altered and decides that the charges were rejected as unfounded for reasons that the plaintiff had no right to redress for the time he was in custody because the Supreme Court with the declarative verdict only established a violation of the substantive law.
The Helsinki Committee for Human Rights of the Republic of Macedonia is speechless regarding this precedent – for a declarative verdict to derogate an effective verdict and many constitutional and legal provisions that guarantee the right to compensation for unfounded detention. We will only underline Paragraph 2 from Article 434 from the Law on Criminal Procedure which states that if a request for protection of legality is submitted to the disadvantage of the defendant, and the court establishes that it is founded, a violation of the law will be established without interfering with the verdict in effect.
2.3. Illegal detention The case of Zlate Trajkovski, Skopje.
The Helsinki Committee already wrote about the case of Zlate Trajkovski from Skopje in June 2009[7].
Only as a reminder Mr. Trajkovski on 23 March 2009 in front of the building of the Basic Court Skopje 1 – Skopje was taken into custody by police officers without a court warrant and then taken to an unknown direction. After some time Zlate was taken to the “Idrisovo” Penitentiary in Skopje, and 23 days later he was transferred to the psychiatric hospital in Demir Hisar with an rationalization that he was supposed to serve a sentence established in the criminal procedure registered under K.br. 57/00. With that verdict Zlate Trajkovski got a security sanction “mandatory psychiatric treatment and stay in a medical institution” for a period of one year. Mr. Trajkovski had already served that sanction for which he had discharge papers from Demir Hisar Psychiatric Hospital.
After undertaking certain measures and actions at the time, the Helsinki Committee alarmed that maybe Mr. Trajkovski was detained contrary to the law because the answers we received from the Court and the Sector were not compatible in the section about the measures and actions undertaken by both institutions, i.e. the Court issued an instruction but not a court order for the execution, and the police officers took Mr. Trajkovski into custody and escorted him to prison.
In the meantime the Helsinki Committee once again addressed the Sector for Internal Control and Professional standards asking to be informed about the crucial moment, i.e. based on what – what kind of act the police officers took Mr. Zlatko Trajkovski into custody and escorted him to prison. In the same letter we asked to be informed about the individuals involved in the action for the arresting of Mr. Trajkovski, what kind of actions had been or would be undertaken against those who obviously acted on their own and contrary to the legal regulations.
The Helsinki Committee received a response from the Sector (which is contrary to their previous response[8] dated 29 May 2009) that on the above-mentioned day Mr. Trajkovski “for the purpose of checking operational information, was asked to show his ID. Since he did not have one with him he was taken to custody to the Gazi Baba police station for the purpose of establishing the identity and to check the operational information. While checking the person a court order for serving a sentence imprisonment was found stating that he was supposed to report for serving his sentence of imprisonment for a duration of one year at the “Idrizovo” Penitentiary.
After comprehensive reviewing of the case the Helsinki Committee concluded that there were elements for bringing criminal charges for a crime of abduction and illegal detaining against the police officers who acted arbitrary and illegally.
2.4. Illegal detention The case of N.N., a citizen of Skopje.
Mr. Trajkovski’s destiny was also shared by another citizen from Skopje who on 24 March 2009 was taken into custody by police officers and immediately escorted to the “Idrizovo” Penitentiary without having a valid court verdict properly delivered to him. Based on the documents that the Helsinki Committee got it was evident that the individual N.N. submitted a request for the criminal procedure to be taken back to the original state. The request was approved and the Court with the decision registered under K. Pov. Br. 72/09 from 5 March 2009 allowed retrial.
The Court issued an order on 25 March 2009 and on the same day the individual NN was transferred from the Idrizovo Penitentiary to the Skopje Penitentiary-Skopje, and on the next day he was released to go home with a handed over effective decision for retrial.
The Helsinki Committee sent a letter to all the relevant state institutions. The competent court in Skopje was asked to inform us whether they were familiar with this development and the reasons for taking NN into custody and escorting him to the Idrizovo Penitentiary to serve a sentence imprisonment even though the conditions were not fulfilled for him to go to prison[9]; about the reasons and the legal act based on which he was taken from Idrizovo to the Skopje Penitentiary in Skopje from where he was released after spending one night there.
Idrizovo Penitentiary was asked to inform us about the reasons for admitting him in their institution since the Court Warrant stated “The convict on … and at the latest until ….. to report to the Skopje Penitentiary, Skopje to serve a sentence imprisonment”, and based on which act he was transferred to the Skopje Penitentiary – Skopje. The Helsinki Committee addresses the Skopje Penitentiary – Skopje with the same question.
The Sector for Internal Control and Professional Standards was asked to respond to the following three questions:
– how was it possible for the individual NN to be detained on 24 March 2009 without having a court warrant for his arrest.
– which are the reasons for his arrest; as well as
– on the bases of which act the individual NN was taken to the “Idrizovo” Penitentiary.
The following institutions informed us about this case:
A. The competent court in Skopje informed us that a court order was issued by the court on 25 March 2009 but there was no arrest warrant against the individual NN. The Court furthermore in its letter states that the court order was issued “after it previously learned that the individual NN was already serving sentence imprisonment for other cases”, and probably thought since he was already why not use the opportunity (our note).
B. Skopje Penitentiary – Skopje only confirmed that on the above mentioned date the individual NN was transferred from one penitentiary to another i.e. that they took him in and on the next day released him.
C. Idrizovo Penitentiary informed us that the individual NN on 24 March 2009 was escorted by the police to their prison in accordance with the court orders issued by another competent court. However, the documents and the response they provided show that against the individual NN there were other criminal proceedings before another competent basic court. The closed criminal proceedings in effect with verdicts were suspended where in one of them in 2004 retrial was approved and in the other in 2006 it was returned to the previous state – in an appeal procedure. Furthermore, at the same time (in 2004 and 2006) decisions were adopted to stop the proceedings for serving the sentences imprisonment.
The abovementioned decisions were faxed to the penitentiary authorities on the day of the arrest. Now the question is whether there was a need for such hastiness and mass by the court, the police and the penitentiary authorities to the disadvantage of the individual NN. The individual was definitely not to be blamed and he should not have suffered due to the lack of coordination among the competent institutions.
In addition, the letter stated that NN was kept until the next day when the competent Skopje court issued a court order and a request to the prison for the individual to be transferred to another prison to serve a sentence imprisonment for a crime for which a retrial was allowed!!!
In this case the fact that there were criminal proceedings against NN is not the subject of this controversy. The controversy lies in the act of detaining him and the legal grounds for that, as well as the fact that the individual was kept in prison (Idrizovo) based on no grounds. Weren’t the proceedings for serving the sentences imprisonment stopped? If so based on what the individual was detained over night at the prison?!?!
The Helsinki Committee is astonished with the mobility of the police which seems as if they know that court orders will be issued before that happens so just in case they take people into custody.
The Helsinki Committee is concerned with the information about the “readiness” of the police in these cases, when there is no real necessity for the individuals to be taken into custody and to start serving the sentence imprisonment (since there were no court orders), … but still people are detained, probably thinking that they will find something they could go to prison for. This is not the first case in which the police showed amazingly swift and unnecessary cooperation with the state institution playing with the destinies of the citizens. This looks like the folk saying “bow the head and it stays untouched, raise it a little bit and it’s gone”.
The Helsinki Committee urges the involved state institutions to show more of a coordination among them, and at the same time to initiate a procedure for clarifying the dilemma whether it was at all necessary to detain the individual NN (evidently unjustly and illegally), and those who rushed in doing so to be punished accordingly.
2.5. In-“efficiency” of the system The case of Zlatko Ilievski
The 2008-2010 Strategic Plan of the Ministry of Justice states that “Stability of the institutions, democracy development, rule of law, protection of the human rights and freedoms, harmonisation of the national legislation with the acquis communautaire and the efficient functioning of the state institutions are the main conditions that need to be fulfilled on our way towards the integration into the common European family”, and especially that: “The Ministry of Justice as one of the key bearers of the reform activities should pay special attention to fulfilling the planned strategic goals”.
For that purpose, the Ministry of Justice should provide general conditions for achieving the fundamental function of the justice system, its reform, and all that aimed at creating an efficient system for exercising the human rights and freedoms and their protection.
In addition, the strategic plan states: “When establishing its strategic priorities and goals the Ministry of Justice primarily had in mind existing 2008 strategic priorities of the Government of the Republic of Macedonia among which all the above stated ones: efficient, independent and professional justice system; rule of law; protection of the civil rights; increasing the trust of the citizens in the judicial system; increasing the courts efficiency; establishing an efficient system of governance…
What kind of reforms we have been talking about for years now as part of some strategic plans, if we look at the continued increased number of motions in which the citizens express their dissatisfaction with the work of judiciary, and especially because of the unnecessary prolonging of proceedings because of the judges, but also because of the state institutions which are obligated to act upon a request for data by the courts for the needs of the proceedings.
If we take into consideration the fact that these state institutions do not pay the necessary attention to these requests that they receive from the courts, and to which they are obligated by law to respond to, and all to the disadvantage of the parties’ interests, the question is whether there are realistic possibilities to join the common European family if the efficiency of judiciary and administration is taking a downwards direction.
Hence, in the case of Zlatko Ilievski, which is tried at the Basic Court Skopje 2, and his assertions of unjustified prolonging of the proceedings, the court in its response to the letter sent by the Helsinki Committee informed us: the last court appearance was held on 16 October 2008 because the Court decided to request from the real-estate registry a blueprint of the re-measuring of the residence building that was the subject of the proceeding. For that purpose the court addressed in writing the Real-estate Registry Agency, the Skopje Real-Estate Registry Centre on 13 November 2008 and 13 February 2009. Pursuant to the fact that they did not respond, the Court with a letter dated 22 September 2009 once again addressed them with a note that they should provide the requested data as soon as possible because the proceedings were underway and in the interest of proper establishing of the facts and making the right decision. The fact that the court already waited for almost a year before addressing them again did not matter as well as the duty of the state institutions to act accordingly. After this the Real-estate Registry Agency needed additional 5 months before forwarding to the court the requested information on 18 January 2010.
The Law provisions for the Court if it suspects the authenticity of a certain document to be able to request for the competent institution to confirm it, i.e. the institution that issues it[10], as well as if necessary to get documents, IDs and items that some other state institution, administration body, local self-government bodies have … the court would order those documents, IDs, items to be provided[11]. However, it does not provision who is accountable in case the state institution fails to respond. Which are the consequences for the competent officials in this specific case for making the party wait for a year and a half for one blueprint?
The accession to the European family most probably will not go so easily when you have a law that sanctions even the smallest omissions by the citizens who are one of the parties in court proceedings, even in a case of missing a court appearance, and at the same time leaving them unprotected in cases when the guilt lies in the irresponsibility of the state institutions and the officials, even the courts. Having accountability and imposing sanctions also applied to the state institutions and not only to the citizens is a precondition for increasing the efficiency of the overall system.
3. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
3.1. Restriction of the right to property. The case of M.A. from Skopje.
The Helsinki Committee was addressed in writing by the individual M.A. from Skopje who informed us that she was the owner of a real-estate registered in the Volkovo cadastre district. In the course of 2005 the Fund for National and Regional Roads – Skopje submitted proposals for expropriation – deprivation of ownership to the Ministry of Finance. The proposal stated that the land expropriation and deprivation of M.A. from the ownership of a piece of land in the Volkovo Cadastre District was for the purpose of the construction of the Northern Bypass to the city of Skopje. For the same reason the competent institution in the course of 2004 and 2005 adopted a decision for real-estate expropriation.
Because of the disagreement about the offered price an extrajudicial proceeding was initiated that was closed with an agreement concluded on 12 July 2006. M.A. was informed that she still owned 581 m2 which if she requested could also be purchased.
In the course of 2008 M.A. wanted to sell the rest of the property for which she had a buyer, but she could not do that simply because the property document stated that she was still the owner of the section that was previously expropriated. On the other hand by failing to register the changes that happened on M.A.’s plot the exercising of her other rights provisioned in the Constitution and some the other legal acts was limited (for example selling the property). In order to resolve the situation at hand M.A. addressed the Real-Estate Registry Agency to regulate the property issue i.e. implementation of the 2006 agreement but apparently she was told that the Fund was the only one that could demand such a thing and only if they submit the required documents and not upon a request by the party.
The Helsinki Committee addressed the State Roads Agency asking to be informed about the reasons why they did not submit the concluded agreements that were anyhow implemented in practice, since this imposed a new limitation of a certain right of M.A. We also addressed the Real-Estate Registry Agency asking them to inform us about the reasons why the party was not allowed to make the changes in the real-estate, a right legally provisioned in Article 135 from the Law on Real-estate Registry.
With a supplemented letter we provided the cadastre with additional data to which we received information that “in compliance with the Law[12] on Real-estate Registry the application should also enclose the legal grounds, and depending on the changes also the geodetic report … payment of the appropriate tax in compliance with the tariff list”. The State Roads Agency informed us that “they submit the agreements to the Real-estate Registry ex officio in order for the changes to be recorded in the real-estate registry books.”
The Helsinki Committee after undertaking the measures and the actions instructed the party to address the real-estate registry for the changes in the real-estate to be recorded.
It still remains unclear where the problem was, whether it was with the real-estate registry or the state roads agency! In any case the Helsinki Committee expects that the Real-Estate Registry Agency will take into consideration the documents provided by the State Roads Agency as well as the additional documents that will be requested from the party and the changes in the real-estate will be recorded in the real-estate registry books. With these actions all the parties will be satisfied as the final result of the procedure.
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[1] THE LAW AMENDING THE CRIMINAL CODE (Official Gazette of the Republic of Macedonia No. 114/09 from 14 September 2009)
Secondary sanctions Article 96-b – “Under the conditions established by this code, the court, in case it determines that the legal entity abused its position and there is a threat of repeating the crime in future, could impose one or more of the following secondary sanctions:
… 6. temporary ban to perform a certain activity; 7. permanent ban to perform a certain activity; 7. termination of the status of a legal entity”.
Conditions for imposing the secondary sanctions Article 96-c – “…4) The court shall impose a temporary ban to perform a certain activity for a period of one to three years coupled by a fine, if while the legal entity performs the activity a crime is committed for which for a natural person a fine or a sentence imprisonment of up to three years is provisioned and based on the way the crime is committed there is a possibility of repetition of the same or a similar crime. 5) The court shall impose a sanction of permanent ban for the legal entity to perform a certain activity coupled by a fine, if a crime is committed for which for a natural person a sentence imprisonment of at least three years is provisioned, and if based on the way the crime is committed there is a possibility of repetition of the same or a similar crime.
6) The Court will impose the sanction from Paragraph 5 of this Article also when a crime is committed after a previous effective verdict according to which the legal entity got a temporary ban to operate. 7) The court will impose a sanction of termination of the legal entity coupled by a fine, if a crime is committed for which for a natural person a sentence of imprisonment of at least five years is provisioned, and if based on the way the crime is committed there is a possibility of repetition of the same or a similar crime.
[2] http://www.mhc.org.mk
[3] Article 147, Paragraph 2 with connection with Articles 146, 148 and 150
[4] The appeal was rejected as unfounded in compliance with Article 138 Paragraph 1 Indent 11 from the Law on Broadcasting and Article 46 from the Statute of the Public Enterprise MRT.
[5] In compliance with Article 26 Paragraph 1 Subparagraph 5 from the Law on Administrative Disputes
[6] “The right to compensation for damages due to unjustified verdict have the individuals against who an effective criminal sanction was imposed or who was declared guilty but with a suspended sanction, and later due to an extraordinary legal remedy the new procedure is effectively stopped or with an effective verdict s/he was acquitted of the charges or the charges were rejected. “A right to compensation for damages is allocated to a person who: 1) was detained, and no criminal charges were brought against him/her or the proceedings were stopped with an effective decision or with an effective verdict s/he was acquitted from the charges or the charges were rejected; 2) served a sentence imprisonment but during the retrial, upon a request for the protection of legality or a request for extraordinary reviewing of the effective verdict a sentence imprisonment was imposed but of shorter duration than the one s/he already served or a sanction was imposed that did not involve detention or s/he was declared guilty and the sanction was suspended; 3) due to a mistake or illegal activities by the institution s/he was illegally or unfoundedly detained or kept in detention or in a penitentiary institution longer than necessary, and 4) spent more time in detention than the duration of the sentence imprisonment to which s/he was sentenced.
[7] www.mhc.org.mk/juni2009
[8] The Sector in a letter informed us that on the abovementioned date police officers acting based on a court order KP br. 229/07 from the criminal court in Skopje from 22 January 2009 and the individual Zlate Trajkovski was taken to the Police Station Gazi Baba and then escorted to the “Idrizovo” Penitentiary. This response did not correspond to the answer provided by the Basic Court Skopje 1 – Skopje which does not deny that a court order was issued, but for the court it was unclear why the police took him to the Idrizovo Penitentiary without having an order issued for his detention.
[9] The party was not allowed a retrial.
[10] Article 215 from the Law on Litigation
[11] Articles 217 and 272 from the Law on Litigation
[12] Articles 135, 143, 164 and 165