Monthly Report (June 2009)
1. PUBLIC EVENTS AND VIOLATION OF DEMOCRATIC PRINCIPLES
1.1. Lesson for the disobedient students
1.2. Religions’ Ethics or re-introduction of religious instruction only with a more sophisticated title?
1.3. Facts never lie
1.4. Compulsory secondary education, but is it accessible to all
2. CASES INVOLVING THE POLICE AND THE COURTS
2.1. The case of Shenol Memish
2.2. The case of Liljana Dimitrova Nakova
2.3. The case of Zlate Trajkovski
2.4. The case of Saso Kostadinovski
3. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
3.1. Who’s right: the Notary Chamber or the Ministry of Justice?
3.2. Do we have judicial protection – the case of Zito Luks
3.3. The case of Jane Pirganovski
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1. PUBLIC EVENTS AND VIOLATION OF DEMOCRATIC PRINCIPLES
1.1. Lesson for the disobedient students
The Republic of Macedonia is considered a democratic state, which fosters providing and protection of human rights and freedoms. Hence, by accepting the international documents regulating the fundamental guarantees for the human rights, among which the freedom to associating and expression of public protest, and their integration into the constitution, the state has undertaken the obligation not only to provide them but also to protect and secure them.
Unfortunately, the recent incident with a group of students that tried to express their views with a peaceful protest, as well as the more and more frequent verdicts against journalists for published information, bring us to the conclusion that democracy and human rights protection and especially the right to speech and associating in Macedonia are only a dead letter on a paper.
The Helsinki Committee has already pointed out that according to the Law on Public Gatherings a public gathering should be announced to the MOI while in Article 21 from the Constitution, as the highest legal act, it is clearly stated that “the citizens have the right to peaceful gatherings and expression of protest without previous announcement and permission…” Still, even though in collision with the Constitution, the students who were organising the protest, respecting the requirement from the Law on Public Gatherings properly announced the gathering at a police station of the Ministry of Interior.
These are the grounds for the duty of the guardians of the public peace and order, the Ministry of Interior or the police officers, who with their presence and actions maintain the public peace and order in the areas where this is happening; they protect the lives, personal safety and property of the citizens[1].
Furthermore, the Rulebook on performing police duties subscribes:
the police cooperates with the organiser of the public gatherings in order to avoid any problems, while having the gathering and undertaking measures for the protection of lives, personal safety and maintaining public peace and order[2].
In this case, there was cooperation of the organiser with the police whose inspector was in constant contact with the organisers of the public gathering, and who was informed about the position of the students. Representatives of the Police even met with the organisers at the location of the gathering 10 minutes before its beginning when at the square there were also people gathered against the protestors.
However, after the beginning of the protest, and this was also seen on the TV footages, the police officers as if have forgotten their obligations for ensuring public peace and order and protection of the personal safety of the participants allowed physical and verbal attacks on the organisers of the protest.
The irony to be even bigger, the protest changed its location because of the arrival of the opponents to the protest and in order to avoid unpleasant incidents. Regardless, it lasted for couple of minutes because it was interrupted by the attack of the opposing protestors. The police not only that has failed to protect the protestors but one of its officers even asked the organisers of the protest to withdraw the people who were making statements for the media because they were provoking them?!! Still, the absurdness continues and the police even filed charges against the organisers for failing to stop the protest on time, as well as against the other participants, but only those who voluntarily came to the police station on the next day to give statements about what was happening and to complain about the violence they suffered.
One does not need to emphasise that the police not only failed to fulfil their duties to protect the safety of the protestors, but they also tried to cover up their failure by placing the guilt on the organisers. Unfortunately, the work of the police in this case was not reviewed even by MOI’s Sector for Internal Control, and the Minister was more interested in the political accusations.
The Helsinki Committee is utterly worried by the attempt from the position of power and with the capability to scare and punish to help in suffocating freedom of expression and right to gathering and it hopes that the court will respond within its competences with a right decision.
The Committee reminds you that the Police is a service to the citizens providing for their safety and security regardless of the political inclination, and not only a power tool for punishment of those who have opinions different from the ones of those in power.
1.2. Religions’ Ethics or re-introduction of religious instruction only by using a more sophisticated title?
On 18 June 2009, the Education Development Bureau published in the daily papers a competition for the election of part-time associates from the faculties and institutes for professional collaboration with the Bureau, more specifically drafting of a syllabus for the optional subject Religions’ Ethics for 5th grade students in the primary schools. Furthermore, it was stated that the subject would cover five topics: Ethics of the Christian Orthodox Teaching, Ethics of the Islam, Ethics of the Catholicism, Ethics of the Judaism and Ethics of the Evangelist-Methodist Teaching.
As it is already well known the Constitutional Court of the Republic of Macedonia on 15 April 2009 adopted a Decision annulling Article 26 from the Law on Primary Education, which envisaged a possibility for organised religious instruction as an optional subject in primary school.
It is more than clear that this way of acting by the Ministry of Education and Science in cooperation with the religious communities, especially after the statements that they would never give up on the religious instruction is a prove of the Government’s persistence, which is turning into spite that questions the real goal from the very beginning of the process of introducing religious instruction into primary schools. Especially if we take into consideration the statement by the Bishop Timotej that the new subject should be taught by theology teachers and not by people with degree in philosophy since they produce professionals and they enrol girls that they have nowhere else to employ them.
Obviously, this involvement of the religious communities in politics distorts the goal and turns into a policy of the Government for employing people with degree in theology since we as a country are faced with grave unemployment at this would be a good place to start from.
Additionally, a lesson that has not been learnt creates only additional problems: why once again to introduce religious instruction on the backdoor, hidden from the eyes of the broader public – during the summer holidays; how one can expect successful implementation when they do not even know what would be the proper staff to teach this subject in less than two months time; even more worrying is the fact that this staff needs proper pedagogical training and passing certain exams at some of the other faculties so that they could work as teachers; why ethics is reduced only to the religion when it is more than clear that it should encompass all the ethic systems?
We definitely cannot expect thorough answers and elaboration from the competent authorities, especially after the statement that they were not obligated to consult anybody for the decision, so why doing it.
Still bearing in mind the previous experience and the negative consequences from the introduction, practicing and afterwards abolishing of the subject Religious Instruction, the Helsinki Committee addressed in writing the Education Development Bureau and the Ministry of Education and Science in order to get an answer concerning the previous shortcomings in introducing religious instruction, even though after the statements for the media a doubt is emerging about the negative response to the questions. This especially refers to the problem whether proper Decision was adopted for the introduction of a new optional subject in primary education; whether they took into consideration the rationale of the Decision by the Constitutional Court about the reasons to repeal twice the religious instruction at the primarily schools; whether they had an analysis establishing the needs for drafting syllabuses and programmes during the academic year; had there been expert discussion on the needs for drafting syllabuses and programmes during the academic year, especially whether a strategy for the organisation and the implementation of the given subject was prepared?
The Helsinki Committee once again appeals to the Ministry of Education and Science that instead of spiting it should start working on a comprehensive, careful and long-term analysis of the needs for this kind of reforms in primary education, and all these aimed at preparing and education of the youngest population in the educational system to face all the challenges and changes of today in accordance with their age, needs and interests.
1.3. Facts never lie
In the course of 2008 the Helsinki Committee on several occasions wrote to the Public Prosecutor’s Office of the Republic of Macedonia asking them for more detailed information about the procedure concerning the return of the so-called Hague cases by the Hague Tribunal to the Republic of Macedonia.
Often as a reminder to the public we were asking for information whether the Hague Tribunal ordered or made a decision to return the cases to the Republic of Macedonia; how and when the handing over of the cases happened; and all these in order to see whether the law was implemented in these cases, more specifically in regard to the cooperation with Hague Tribunal.
Mr. Svrgovski[3] informed us about the public decision No. IT – 02 – 55MISC6 from 17 January 2008 made by the International Tribunal for prosecuting persons responsible for serious violations of the international humanitarian law committed on the territory of former Yugoslavia from 1991[4], a copy of which was attached. In the answer we received it was stated that the above-mentioned decision refers in general to all four so-called “Hague Transferred Cases” that were returned in the phase in which they were transferred. Additionally, in the letter we were informed that for one of the cases the Prosecuting Act was effectively rejected, and for the remaining three cases, criminal procedure was initiated by adopting decisions for implementing the procedure. Still from the Decision one cannot establish precisely in what phase and on what mandate the cases were returned to our justice system.
Hence, we insisted on getting the records from the handing over of the cases, believing that they would provide the answers to the open issues. On 10 November 2008 the Helsinki Committee got notification from the Public Prosecutor’s Office of the Republic of Macedonia А. No. 396/08 that according to the signed Records from the handing over the date of the reception of the returned Hague cases would be provided later for reasons that were explained later in the telephone conversations with the acting president of the Helsinki Committee.
The further attempts to get information about the formal date of the handing over of the cases from the Hague Tribunal to the Republic of Macedonia were hindered by the Public Prosecutor’s Office of the Republic of Macedonia with the letter А. No. 378/08 from 19 February 2009 advising us to address the Directorate for Classified Information Security as the body competent for providing the required information about where the Hague Tribunal sent the cases to.
The Helsinki Committee on 25 May 2009 submitted a letter to the Director of the Directorate for Classified Information Security asking him to inform us about the date when the Republic of Macedonia formally received back the transferred cases by the Hague Tribunal. The Directorate sent us the Notification No. 0203 – 500/2 on 1 June 2009 informing us that the “Directorate for Classified Information Security is legally obligated and has undertaken measures and activities for protection of the classified documentation of the court cases transferred from the Hague Tribunal to the Republic of Macedonia only in the phase of the transfer of the documentation from the Netherlands to the Republic of Macedonia.” Furthermore, the notification states “the moment of the formal handing over of the documentation from the Hague Tribunal to the Republic of Macedonia has never been in the domain of the Directorate’s competences, due to what we are not able to provide you with the requested information”.
Remaining empty-handed for the requested information, the Helsinki Committee addressed again the Public Prosecutor’s Office of the Republic of Macedonia asking them to inform us about the date of the reception of the returned Hague cases in compliance with the signed Records from the hand-over, something that was basically promised to us in the letter registered under А. No. 396/08 from 6 November 2008.
But the saga does not end there. In the latest letter received by the Public Prosecutor’s Office of the Republic of Macedonia[5] the Helsinki Committee was advised to address the Ministry of Foreign Affairs for the desired information with an elaboration that the handing over of the cases by the Hague Tribunal In Hague to the Republic of Macedonia was done at the Embassy of the Republic of Macedonia in the Kingdom of the Netherlands, even though it was quite clear that the Embassy in this case only played the role of a technical mediator.
It is more than clear that the Public Prosecutor’s Office on its own or following somebody else’s instructions does not want to make the records from the handing over of these cases public, which quite clearly and unmistakably brings us to the conclusion whether all the preconditions envisaged in the law for cooperation with the Hague Tribunal have been fulfilled allowing (ab) use of these cases for daily political purposes.
The Helsinki Committee is amazed by the actions of Mr. Svrgovski and the Public Prosecutor’s Office of the Republic of Macedonia, who at the beginning promised us the records from the handing over of the Hague cases only later on to transfer the responsibility from one to another institution playing games of hide and seek with the Helsinki Committee and by that evidently contributing for the deprivation of the public from the relevant information that stir unnecessary confusion around the Hague cases.
1.4. Compulsory secondary education, but is it accessible to all
With the Law Amending the Law on Secondary Education (Official Gazette of the Republic of Macedonia No. 49) from 18 April 2007, secondary education became mandatory for every citizen under equal conditions established by Law. In compliance with this law, the secondary education at the public schools is free. Is this really the case?
Ms. Asija Damevska from Skopje addressed the Helsinki Committee for Human Rights of the Republic of Macedonia informing us that her daughter N.D. had a physical disability with a diagnosis of Fybrodysplasia osificans progressivа, i.e. the most severe form of chronicle illness and seriously disturbed health though she was mentally healthy and capable.
Namely, when her daughter attended school due to absence of proper conditions she fell and she still feels the consequences from the fall.
After seven months of unsuccessful search for a public secondary school, which offered proper conditions for educating students with special needs, she enrolled her daughter at a private high school in Skopje that had all the necessary conditions however they had to pay a high tuition.
The party informed us that she addressed the Ministry of Education for help, asking them to help the students with special educational needs, but their answer was negative.
Based on a request by the Helsinki Committee for a list of secondary schools that can be attended by children with certain disabilities, the Ministry of Education and Science informed us that “in the City of Skopje there are several schools that have proper access to the school buildings for students with special needs. The Ministry being aware of the situation invested in improving the conditions for access for the students with special needs by renovating the existing and building new ramps at the schools entrances”. They also enclosed a list of 11 schools with installed wheelchair ramps.
Among this school was the Secondary School of “Georgi Dimitrov” – Skopje, where A.D. had already tried to enrol her daughter, but she got a negative response with the following explanation: “…1. The classes for the 2nd grade students attending general high school instruction are already full, and the instruction is performed in classrooms – laboratories on the first floor;
2. There is no possibility for your daughter, even if she is admitted at the school, due to the stated disability, to be placed in a class on the ground floor since on that floor we have the vocational training…”
The students with special needs are often excluded from the regular education process. Since education is essential for the employment in many areas and it is a precondition for the economic independence of an individual, the right to education is of special significance for the individuals with special needs. The legally regulated general right to education bears no significance unless additional measures are undertaken for ensuring access to good quality primary, secondary and higher education for children, young people and adults with various levels of disability.
Having in mind that not every family can afford to enrol their child to a private school, the Helsinki Committee would like to remind that the right to education has to be equally accessible for every child. Hence, we expect from the Government and the Ministry of Education and Science to provide as soon as possible proper conditions inside the schools so that they would be accessible for all the students, instead of having selective approach in providing access for students with special needs only in certain secondary schools.
2. CASES INVOLVING THE POLICE AND THE COURTS
2.1. The case of Shenol Memish
The Law on Enforcement was adopted in 2005 enabling among other things transfer of effective enforcement of court decisions to the independent enforcement agents. All this aimed at increasing the efficiency of judiciary as well as at effective enforcement. On the other hand from the very beginning of the application of this law we have been witnesses of great many difficulties in the practical implementation of this law’s provisions.
The Macedonian Helsinki Committee has informed the public on a number of occasions about this, but unfortunately, the problems have continued to multiply.
Namely, the individual Shenol Memish in a court procedure, with an effective decision was pronounced guilty for the crime of slander. If we put aside the issue about the guilt of the individual and especially having in mind the fact that he appealed for retrial based on new evidence that came to light the enforcement procedure against Shenol Memish was carried out contrary to the provisions from the Law on Enforcement.
First, after looking into the files it was established that the Enforcement Agent on 19 March 2009 adopted a conclusion to inform the party about making an inventory, but on the other hand it stated nowhere at what time the inventory would be made, nor there were any evidence that the Conclusion was forwarded to the debtor. This is also supported by the fact that on the next day, regardless of the previously made proposal by the debtor for the payment collection to be done by keeping 1/3 of his salary, on 20 March 2009 the Enforcement Agent with police assistance, two witnesses and with the help of a locksmith changed the apartment’s lock in order to make an inventory list since the debtor refused to open the door. In doing so, the Enforcement Agent failed to show the written permit from the President of the Basic Court on which territory the enforcement was carried out and which according to the law is required for this kind of actions. Even more since the law allows for the enforcement agent to open locked premises in the presence of the police and two adult witnesses, but this does not apply for an apartment, which raises the question of the inviolability of the home.
Furthermore, as one can see from the Inventory and Mobile Property Estimation File, the enforcement agent listed items, which according to Article 84 from the Law on Enforcement, are exempted from enforcement, such as refrigerator, electric stove, washing machine, vacuum cleaner, since they are used for satisfying basic household needs. Additionally, he listed a computer owned by a third person who, at the time was used, but not owned by the debtor. The irregularities with the inventory are also confirmed by the President of the Bitola Basic Court, which decided upon the submitted appeal against the Inventory and Mobile Property Estimation File.
Based on the violations of provisions from the Law on Enforcement[6], the individual Shenol Memish addressed the Ministry of Justice as well as the Association of Enforcement Agents in order to determine the disciplinary responsibility of the Enforcement Agent[7]. For the absurd to be even greater the Ministry of Justice in stead of using the opportunity for regular and/or extraordinary supervision of the work of the enforcement agents and the Association of Enforcement Agents, they only informed the debtor that the case was thoroughly reviewed and that it was forwarded for further reviewing and deciding by the Association of Enforcement Agents. Within the Enforcement Agents Association and in compliance with the proper disciplinary procedure, the enforcement agent was required to make a statement regarding the charges, which was received in 21 April 2009. Since then a new obstacle appeared, namely the Association informed the debtor that since the mandate of the members of the Disciplinary Commission expired on 14 April 2009 and the election of the new members would happen on 11 June 2009 the application would be reviewed after the finalisation of that process.
Until the time this report was written nothing had been undertaken for establishing disciplinary accountability on the part of the enforcement agent.
The question is how is it possible the Association to be electing new members of this body two months after the expiration of the mandate of the previous ones and in the meantime to function without this body – the Disciplinary Commission, creating a vacuum in the procedure, and all these to the disadvantage of not only the debtors but also of the creditors. Consequently, the Helsinki Committee is asking whether this disciplinary procedure could be considered urgent, having in mind that the Association’s Statute establish that it should be URGENT. Or maybe even in this domain we cannot expect objective approach by the enforcement agents in case of a need to establish the accountability of their colleagues?
2.2. The case of Liljana Dimitrova Nakova
Ms. Liljana Dimitrova Nakova from Kocani informed us that on 26 October 2006 submitted a request for passing a decision for recognition of the working period entitled to pension from 1 May 1994 until 17 October 1997. The request was submitted to the Fund for Pension and Disability Insurance of Macedonia – Kocani Local Unit and it was registered under 19-748/1.
In the legally envisaged period of 30 days Mrs. Dimitrova – Nakova has not received a Decision from the competent first-instance body, and in compliance with the legal provisions she appealed to the second-instance body within 15 days period[8]. The Second-Instance Commission for dealing with cases related to the pension and disability insurance, as the second-instance body failed to respect the envisaged period of 60 days according to the Law on General Administrative procedure and failed to pass a decision, so the party within 7 days submitted an intervention[9] to the second-instance body as a reminder that they had not passed a decision.
The intervention did not bring any results so on 17 February 2007 Mrs. Dimitrova Nakova filed charges for silence of the administration to the Administrative Court of the Republic of Macedonia. Deciding upon the charges, the Administrative Court of the Republic of Macedonia[10] at a meeting of the council held on 3 July 2008 passed the verdict U.br.[11] 2725/2007 stating that the charges were accepted, imposing an obligation for the Government of the Republic of Macedonia – Second Instance Commission dealing with cases related to the pension and disability insurance to adopt e decision concerning the charges by Mrs. Dimitrova-Nakova from Kocani.
After the Helsinki Committee realised that in the specific case there were several violations of the envisaged legal provisions from the Law on General Administrative Procedure[12] we addressed the II Governmental Commission asking for information whether actions had been taken in compliance with Verdict U. br. 2725/2007 from 3 July 2008 adopted by the Administrative Court of the Republic of Macedonia, a verdict that was binding for the second instance body, having in mind the deadlines established by law and articles 221, 246 and 247[13] from the Law on General Administrative Procedure.
In the meantime, Mrs. Dimitrova-Nakova informed us that the second-instance body once again failed to make a decision within the period established by law even though it was bound by the verdict of the Administrative Court of the Republic of Macedonia, due to which Mrs. Dimitrova – Nakova in compliance with Article 53 Paragraph 1[14] from the Law on Administrative Disputes submitted a motion for a Decision that would replace the act of the sued body, i.e. the second-instance body. Acting upon the submitted motion the Administrative Court of the Republic of Macedonia on a meeting held on 4 March 2009 adopted a Decision UI. Br. 34/2008 accepting the motion, the decision of the FPDI of the Republic of Macedonia – Kocani Local Office (no number or date) – for silence of the administration was annulled and the case was returned to be once more reviewed and decided upon.
Mrs. Dimitrova-Nakova also informed us that the II Governmental Committee on 20 May 2009 passed a Decision refusing the motion for determining the data about the working period and salaries from the source records for the given period as unfounded.
On 10 July 2009 the second instance governmental commission informed us that Mrs. Dimitrova-Nakova’s motion was refused as unfounded, admitting that the decision was adopted after the deadlines established by law have already expired due to shortcomings in the procedure for completing the motion and providing the case files concerning the registered administrative dispute.
The Helsinki Committee would like to point out that Mrs. Dimitrova – Nakova is not the only victim of violation of the legal provisions in the administrative procedure by the officials, on the contrary the Committee has registered a number of such cases which in the future monthly reports will be presented before the public in more details.
There have also been registered violations of human dignity by prolonging the administrative procedures at the public institutions, which are evidently inefficient. Because of the implications that in a specific case certain violations have been made by the first instance body we would like to invite the state administrative inspection in compliance with Articles 2, 9 and 11 from the Law on Administrative Inspection to look into the implementation of the legal provisions on the administrative procedure and depending on their conclusions to bring criminal charges, submit motions for initiating offence procedure or initiatives for disciplinary procedures against civil servants or employees.
2.3. The case of Zlate Trajkovski, Skopje
Mr. Boris Trajkovski from Skopje in addressed writing the Helsinki Committee informing us about the case of his son Zlate Trajkovski (hereinafter referred as Zlate). Namely, Mr. Trajkovski informed us that on 23 March 2009 Zlate was taken into custody in front of the building of the Basic Court Skopje 1 – Skopje by police officers with no court order and afterwards he was taken to an unknown destination. After some time Zlate was taken to the “Idrizovo” Prison – Skopje. 23 days later, he was transferred to the Demir Hisar Psychiatric Hospital with an explanation that he had to serve the court sentence pronounced in the criminal procedure registered under K. br. 57/00. With the same verdict Zlate Trajkovski got a security measure of “mandatory psychiatric treatment and stay at a psychiatric hospital” for a period of 1 year. Mr. Trajkovski served this measure, which can be proven by the discharging papers issued by the Demir Hisar Psychiatric Hospital.
From the submitted documentation the Helsinki Committee could see that there was another criminal procedure against Zlate at the Basic Court Skopje 1 – Skopje registered under K.br. 490/05. With the verdict of the Basic Court Skopje 1 – Skopje the defendant Trajkovski was pronounced guilty and convicted to a 1-year sentence imprisonment with an alternative measure – SUSPENDED SENTENCE according to which the pronounced sentence imprisonment would not be effectuated if he did not commit a new crime in a period of three years. The Appellate Court in Skopje after the submitted appeal by the Public Prosecutor’s Office – Skopje passed a Verdict KZ.br. 1863/07 changing the first instance verdict in the section of the decision about the criminal sanction and the defendant was convicted to a sentence imprisonment in the duration of (1) year. With the same verdict, the Appellate Court Skopje sentenced the defendant to an effective sentence imprisonment in the duration of one year, but no security measure – mandatory treatment at an institution or another security measure was pronounced.
After his father Boris Trajkovski found out that his son was taken to the “Idrizoco” Prison, the people working at the Criminal Court told him that his son was taken to serve the one-year sentence imprisonment in compliance with the Verdict K. br. 57/00 – which he had already served.
Starting from the fact that Zlate was taken into custody by police officers and taken to Idrizovo, and afterwards transferred to Demir Hisar, the Helsinki Committee on 29 April 2009 addressed in writing the Psychiatric Hospital Demir Hisar and the Prison “Idrizovo” – Skopje with a request to be informed based on what act- effective court decision Zlate was admitted at the institution and what Zlate was basically serving, what sentence and based on what verdict as well as based on what he was admitted the Demir Hisar Hospital.
On the same day the Helsinki Committee sent a letter to the Sector for Internal Control and Professional Standards at MOI informing it that at the Basic Court Skopje 1 –Skopje criminal procedure was initiated against two police officers working at the MOI accused of “inflicting serious body injuries” in accordance to Article 131 from the Criminal Code.
According to the allegations by the Trajkovski at every scheduled court hearing the police officers offended the plaintiffs threatening them so they would give up the criminal charges.
The Helsinki Committee asked for information whether the Sector was familiar with the allegations by the plaintiffs, whether they would check the validity of the allegations as well as what measures and actions would be undertaken in compliance with their legal competences.
On 13 May 2009 we got an answer from the Prison “Idrizovo” – Skopje informing us that at that moment Zlate was not in prison because on the very same day of 23 March 2009 he was taken into custody by the police in order to serve the sentence imprisonment for the duration of 1 year according to the effective verdict K.br. 490/05 from 28 March 2007. However, on 10 April 2009 the sanctions execution judge from the criminal court sent to the institution a notice and the verdict K.br.57/00 for implementation of the security measure – “mandatory psychiatric treatment and stay at a medical institution”, and consequently the convict Zlate was taken to the Demir Hisar hospital on 13 April 2009.
On the very same day, we got an answer from the Demir Hisar Hospital informing us that Zlate was admitted at the hospital on 13 April 2009 after he was brought to the hospital by officers from Prison Idrizovo – Skopje with a transfer act UZL. r. 3/9 from 31 March 2009 for the criminal procedure K.br. 57/00.
On 2 June 2009, we got an answer from the Sector informing us that on the above-mentioned date police officers acting upon the referral act KP. Br. 229/07 (NEW REFERRAL ACT) from the Criminal Court in Skopje dated 22 January 2009 the individual Zlate Trajkovski was taken into custody to the Gazi Baba Police Station, and afterwards was taken to the Prison “Idrizovo”. Surprised by the received answers and by the failure to explain what really happened on 23 March 2009 as well as the evident abuse of the limitation of freedom and the right to movement of Zlate, the Helsinki Committee addressed the President of the Basic Court Skopje 1 – Skopje and the judge at the same court competent for the execution.
In the letter we explain the situation and we ask for information based on what act – effective court decision Zlate was taken into custody and referred to serve a sentence at the Prison Idrizovo – Skopje as well as the reasons because of which Zlate was detained and referred to serve the sentence imprisonment in the duration of one year with a security measure of mandatory treatment and stay at a medical institution, having in mind that Zlate has already served this court measure, for which he had a document issued by Demir Hisar Psychiatric Hospital.
The President of the Basic Court Skopje 1 – Skopje informed us that after receiving the referral act for serving the sentence imprisonment in the duration of one year Zlate submitted a petition for postponing the beginning of the execution of the verdict that was refused as unfounded and after the submitted legal remedies, it became effective. The decision was handed over to Zlate on 23 March 2009 (MOST PROBABLY WHEN HE WAS TAKEN INTO CUSTODY BY THE POLICE OFFICERS – O.N.), when he was taken to the Prison Idrizovo, and the court was informed about this on 26 March 2009. The competent judge talked on the phone with the officials from the Prison Idrizovo –when he got a confirmation that Zlate was serving the sentence imprisonment.
Further on, the Court confirmed the factual situation that the Trajkovski presented at the Helsinki Committee, i.e. that the case UZL br. 3/09 was created with the effective verdict K.br. 57/00 (and the pronounced sentence has already been served by Zlate), and when the court was informed that Zlate due to some magical luck was at the Prison Idrizovo, they forwarded a referral act to the hospital, the prison and the convict for serving the security measure. Only then the parents of the party reacted after which the court was informed that Zlate had already served the measure and after looking into the necessary files they sent a notification to the hospital to take him back to the prison in order to serve the stated one-year sentence imprisonment.
However, the hospital informed the court that they asked the Prison authorities to send somebody to pick up the convict, since they did not have proper vehicle and personnel but the prison replied that they also could not take the prisoner to their institution so it was left to the court to decide when and how the convict Zlate would be taken back to the prison in order to serve his sentence.
In one section of his letter the President of the Court informs us about the following “It is evident that the court issued a referral act for the convict Zlate Trajkovski for serving the sentence imprisonment in the duration of one year but for the court remains unclear why the defendant was taken by the MOI Sector for Internal Affairs to the Prison Idrizovo – Skopje without an issued order i.e. why the individual was arrested only based on an issued referral act.”
We have to admit that the answers we got from the court and the Sector do not correspond to each other when it comes to the undertaken measures and actions so it turns out that on one hand the police reads the mind of the court and even before receiving referral acts they take people in custody (at least those that sue their colleagues), and the court on the other hand is totally uncoordinated as a result of which old and already served sentences of the convicts could be activated. Still, twice-served sentence imprisonment or security measure is safer.
The Helsinki Committee expects from the court with the second letter to inform us whether Zlate is currently serving a sentence imprisonment and even though contrary to the legal provisions whether he is serving it at the Demir Hisar Hospital; whether at the end it will be considered as served or the party in near future based on a scheduled main hearing could expect to be once again taken into custody for serving a sentence imprisonment.
The Helsinki Committee calls for all the competent institutions to show interest in the case and to punish those violating the laws.
2.4. The case of Saso Kostadinovski, village of Tromegja – Kumanovo Region: Effective verdict against police officers for ill-treatment while performing official duties
The case of Saso Kostadinovski was an observation case of the Helsinki Committee in 2003[15], when Mr. Kostadinovski was beaten up and maltreated by police officers from the Kumanovo Sector for Internal Affairs.
Criminal charges were brought against these officers for a crime of “Ill-treatment while performing official duties” according to Article 143 from the Criminal Code registered under K.br. 392/03 initiated by the Kumanovo Basic Prosecutor’s Office and tried at the Kumanovo Basic Court. The Court convicted the defendants twice to a sentence imprisonment of 6 months and by applying an alternative measure of a suspended sentence it would not be executed if the defendants do not commit another crime within a period of 2 years. The Appellate Court returned the case for retrial twice.
A new judicial council of the Kumanovo Basic Court on 16 January 2009 passed the Verdict K.br. 392/03 declaring the defendants as guilty and sentencing them to 1 year imprisonment, after which this sentence was replaced by an alternative measure of a suspended sentence stating that the sentence imprisonment would not be carried out unless they commit a new crime within a period of three years. With the same verdict, the plaintiff was advised to a regular civil suit for exercising his legal requirement for compensation.
The above-mentioned verdict was confirmed with the Verdict Kz.br. 756/09 adopted at a public hearing held on 19 May 2009, the date on which it became effective.
The Helsinki Committee welcomed the first convicting verdict against defendants (police officers) for ill-treatment while performing their official duties, showing that the painstaking and long dragging of Mr. Kostadinovski in the courts at the end paid off. We expect more convicting verdicts in the future against police officers accused of abuse and inhumane treatment.
3. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
3.1. Who’s right: the Notary Chamber or the Ministry of Justice?
The Helsinki Committee for Human Rights of the Republic of Macedonia was addressed by Kristijan Gligorov from Skopje, regarding the submission to the Notary Chamber of the Republic of Macedonia for committed irregularities by the notary J.Gj. from Berovo.
According to the allegations by the party the notary issues a copy of a general proxy and the solemnised agreement that was not a subject of the inheritance procedure of the individual B.T. in the case in which Mr. B.T. was not a participant, and by that violating Articles 30[16] and 77[17] Paragraph 1 from the Law on Notary Profession and the Law on Protection of Personal Data.
The Directorate for protection of personal data passed a Decision that established violation of the right to protection of the personal data of Kristijan Gligorov and Ruza Gligorova, committed by J.Gj., a notary from Berovo and B.T. from Skopje.
The Ministry of Justice after receiving the submission by Kristijan and Ruza Gligorova carried out supervision of the work of the notary J.Gj. from Berovo. After the carried out supervision by the Ministry of Justice irregularities were registered in the work of the notary and the party was informed that the records concerning the undertaken activities were forwarded to the Disciplinary council of the Notary Chamber of the Republic of Macedonia for further actions and decisions.
The Notary Chamber of the Republic of Macedonia informed us that with a final decision by the Disciplinary Council of the Notary Chamber the Notary J.Gj. from Berovo was released from the responsibility that he acted contrary to Article 77 Paragraph 1 from the Law on Notary Profession when he issued to the individual B.T. from Skopje a copy of the notary identity papers.
Having in mind that three different bodies, competent for clarifying the problem gave completely opposite opinions, the Helsinki Committee calls for the Ministry of Justice as the institution competent for the supervision of the work of the Notary Chamber and the notaries to inspect the work of the Notary Chamber in the case of Mr. Kristijan Gligorov.
3.2. Do we have judicial protection – the case of Zito Luks
The Helsinki Committee was addressed by a bigger group of citizens formerly employed at Zito Luks S.A. Skopje, expressing their dissatisfaction with the court decisions.
Namely, the company Zito Luks S.A. Skopje on 14 July 2006 passed a Decision for cancelation of the employment contracts i.e. laying off 113 workers for economic, organisational and technological reasons.
Not being happy with this decision that was completely opposite to the Agreement that the Trade Union of the Zito Luks enterprise employees signed with the employer, the parties initiated procedure for annulling the dismissal notices.
Since the procedures are individual some of them already have effective decisions, others are in the appeal and there are cases that are waiting for the opinion of the Supreme Court on the Audit. It is interesting that some of the cases have positive, and others negative first-instance verdicts but the verdicts of the Appellate Court Skopje do not differ and they are all negative for the parties, just like the Decisions by the Supreme Court.
In the course of the procedure the plaintiffs refer to the Agreement concluded on 12 March 2004 between Zito Luks S.A. Skopje and the Zito Luks Trade Union according to which “the Company guarantees the Trade Union that in the next 4 years they will not reduce the number below 1200 employees based on proclaiming workers as technological surplus and they will not make any economic, technological and structural changes that will bring about a necessity for decreasing the number of employees.” Furthermore, the parties agreed that the social partners would obligate themselves not to have halts in the production or go on strike at the company.
However, regardless of this agreement after only two years from its conclusion the employer Zito Luks S.A. Skopje violating the Agreement laid off 113 workers as technological surplus.
For the absurd to be even greater most of the judicial councils when deciding on the charges by the complainants for cancelling the decision for termination of the working relation did not even mention the above mentioned Agreement, others believe that the Agreement did not have the power of a collective agreement but only an obligation-legal relation ?!, or they consider the Agreement as a collective agreement but do not elaborate further.
For example, the Appellate Court Skopje in one of the verdicts stated that it could not accept that contrary to the Agreement a procedure for technological surplus cannot be led because it is a technological process in the production so that the employer could survive. And if the workers believed that according to the Agreement some of their rights were violate they could have asked for protection according to the Law for Obligation Relations, but this would have had no impact on the proclamation of the technological surplus.
In the verdicts’ elaborations, the judges instead of concentrating on the Agreement they concentrated on the very process of cancelling the Employment Contracts and conclude that it was properly done because the employer offered the employees shops free of rent but they refused. The judges once again ignored the fact that for keeping such a shop additional finances were necessary that the parties did not have or that many of them had never been in sales but worked in other departments such as finances and administration.
After this reasoning of the courts, the logical question would be whether this kind of Agreements sensible, since they are allowed by the Law on Obligation Relations, which are not contrary to other regulations and exist in order to protect the rights of the workers, but when violated the courts do not take them into consideration but they focus themselves on the way in which the cancellation of the employment contracts is done.
In reference to the diversity of the procedures the Committee is fully aware that in Macedonia the Anglo-Saxon system of case law is not applied but still we believe that in the same area, in the same court with completely the same facts and identical legal norms the courts should at least have similar position on a given legal issue in order to achieve legal safety for the citizens.
The Helsinki Committee points out the right of the citizens to proper rationale of the verdicts and proper treatment of the offered evidences, otherwise just like in these cases the decisions of the Macedonian courts will be reviewed before the European Court for Human Rights and the prise for their frivolousness will be paid by all the citizens of the state.
3.3. The case of Jane Pirganovski
In 2004 after a fall from a high building,[18] Jane Pirganoski from Prilep was diagnosed with DG KOMA VIGLI. ST.POST. HYPOXIOCEREBRI, a type of coma in which the patient is conscious.
His parents informed us that after submitting a request for their son to be treated abroad, they got a Consultative Opinion from the Consultative body of the Neurosurgical Hospital in Skopje on 13 December 2004 recommending treatment at the “Interbalkanika” Hospital in Thessaloniki, Republic of Greece. Based on the Consultative Opinion a request was submitted to the Health Insurance Fund of Republic of Macedonia for issuing proper act approving the treatment abroad, however due to numerous mistakes in the course of the procedure, the treatment was never done.
In compliance with Article 30 from the Law on Health Insurance the person insured can use hospital treatment abroad based on a previous permission by the Fund, if the specific illness is not treatable in the Republic of Macedonia, and there is a possibility for successful treatment of that illness in the referred country.
In the course of the last five years, being in a constant search for ways to get an approval for treatment of their son in a hospital that offers possibilities for treatment of this kind of coma, they have submitted a numerous requests to the competent bodies.
The last request for treatment abroad at Tokuda – Republic of Bulgaria was submitted to the Health Insurance Fund of Macedonia – Skopje on 23 November 2008.
With the request they enclosed the Proposal for Treatment Abroad by the Consultative Body of the Neurosurgical Hospital at the Clinical Centre – Skopje from 22 December 2008 in which it is stated that on a number occasions CT and MRI on his brain were performed showing atrophy of the G.Aobalna of the brain structure with expansion of the subahnoidalnite areas and chambers for which PET scan was required to be performed for further deciding on the therapeutic procedures. The Consultative body of the above stated Hospital proposed treatment abroad because there were no diagnostic possibilities for establishing diagnosis in a hospital surrounding i.e. there were no possibility for PET scan (positron emission tomography – PET).
One needs to emphasise that the first-instance medical commission for assessment and opinion for the needs of referring for treatment abroad within a period of 20 days gave two opposite opinions: on 29 December 2008 they gave an opinion for an approval for admission and pre-invoice from Tokuda – Hospital in Sofia, Republic of Bulgaria, and only on 15 January 2009 to make a different recommendation with an assessment and opinion according to which there is no possibility for medical justification of the referral for a treatment abroad because the proposed treatment at a foreign medical facility is performed at the Neurosurgical Hospital in Skopje and it would not cure him or improve his health.
The second-instance medical commission on 22 January 2009 gave an opinion about Jane Pirganoski confirming the opinion of the first-instance commission without pointing out which opinion and assessment they were referring to, the one from 15 January 2009 or from 29 December 2008. Based on this opinion the Minister of Health made a Decision on 26 January 2009 refusing the request for treatment abroad.
The Administrative Court on 18 June 2009 annulled the Decision made by the Minister of Health from 26 January 2009 stating that in the submitted consultative opinion from the Neurosurgical Hospital at the Clinical Centre – Skopje from 29 December 2008, it was concluded that after the brain examination it was established that the patient needed to be treated abroad because there were no diagnostic possibilities for establishing a diagnosis at the hospital i.e. there was no possibility for a PET scan.
According to the Court and according to the Helsinki Committee it is not clear how is it possible for the consultative opinion from 22 December 2008 to state that there was no possibility to apply the above mentioned method of treatment on the patient – insured in the Republic of Macedonia and the opinion of the first-instance medical commission from 15 January 2009 to state that there was no medical justification for referral for a treatment abroad because the proposed treatment at a foreign medical facility was done at the Neurosurgical Hospital in Skopje and that it would not cure him or improve his health.
Additionally it is not clear which opinion and assessment the second-instance commission agreed with, the one from 15 January or the one from 22 December 2008.
Welcoming the decision by the Administrative Court, there is still one open issue and that is who will be considered accountable for the prolonged procedure and the risk from deterioration of the patient’s health, especially having in mind the mistakes that had already been done and because of which Jane was not sent to the Thessaloniki Hospital in 2004/2005 when he had a confirmation for admission by the hospital?
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[1] Article 66 Par. 2 from the Rulebook on performing police duties
[2] Article 78 from the Rulebook on performing police duties
[3] On 21 October 2008 Notification A. br. 380/08
[4] On 21 October 2008 Notification A. br. 380/08
[5] Recorded under Ref. No. 19/08 from 16 June 2009.
[6] Article 5 Par. 2, Law on Enforcement: “When carrying out enforcement one needs to pay attention to the dignity of the debtor’s personality, as well as for the enforcement to be as less disadvantageous to the debtor as possible”.
Article 75 Par. 1: “For undertaking enforcement activities in the apartment of the debtor, the enforcement agent needs to provide written permission from the President of the Basic Court competent for the area where the enforcement is performed.
Article 75 Par. 4, Article 84 and Article 87 Par. 1
[7] Article 54: “If the enforcement agent with his/her behaviour while performing his/her duties violates the official obligation when implementing enforcement activities or performs official activities contrary to the law or s/he is guilty for postponing them or with his/her conduct in the private life violates the honour and the reputation of the profession as person with public authorities, s/he will be sanctioned for slovenliness or disciplinary violation”.
[8] The appeal was submitted on 4 December 2006.
[9] The intervention was submitted on 6 February 2007.
[10] As body competent for dealing with claims for administrative disputes in accordance with Article 34 from the Law on Courts.
[11] As body competent for dealing with claims for administrative disputes in accordance with Article 34 from the Law on Courts.
[12] 05.12.2008, 12.02.2009, 24.03.2009, 29.05.2009.
[13] Article 221 – deadline for issuing a decision
Article 246 – appeal when the first-instance decision is not passed
Article 247 – deadline for passing a decision upon an appeal
[14] Article 53 – Law on Administrative Disputes
(1) If, upon annulment of an administrative act, the competent organ fails to issue a new administrative act or an act for enforcement of the verdict pursuant to Article 40 Paragraph 5 of this Law immediately or within 30 days at the latest, the complainant may petition for issuance of such act by special submission. If the competent organ fails to issue such act after seven days of receipt of such petition, the complainant may request issuance of such act by the court that had rendered the verdict.
(2) Regarding the requirement from Paragraph 1 of this Article, the court shall demand an explanation from the competent organ on the reasons for the failure to issue the administrative act. The competent organ is required to provide such explanation immediately, or within seven days at the latest. If the institution fails to perform this obligation or if the explanation provided does not justify, in the court’s opinion, the non-enforcement of the verdict, the court shall issue a decision that entirely replaces the competent body’s act in every respect, if the nature of the matter allows it. The court shall forward this decision to the enforcement body and duly inform the supervisory body. The enforcement body is required to enforce this decision without delay.
[15] www.mhc.org.mk/dekemvri2003-januari2004 and www.mhc.org.mk/mart2005
[16] Notary secret and free access to information of public character.
Article 30
(1) The notary is obligated to keep as secret everything that is of personal character that s/he learned in his/her capacity of a notary, unless a law or the will of the client requires something else.
(2) Also the persons working for the notary are obligated to keep the secret. The obligation for keeping the secret remains permanent.
(3) The notary is strictly forbidden to allow insight, to issue a copy, extract or certificate from a will, unless the person requesting it submitted a proper document from the death registry with the name of the testator and only after the will is opened, based on a request by any of the shareholders.
[17] Competence for issuance
Article 77
(1) The notary is authorised and obligated to issue to the parties that participated in the composing of the identification documents, as well as to the persons to whose benefit the legal document was made, his/her plenipotentiaries and representatives as well as the heirs and legal successors, based on their request or to their benefit: statements, certificates, and copies of the identification documents that the notary has for safekeeping.
[18] At the time when Jane was a protege of the Institute for fostering and educating children and young people Ranka Milanovic-Skopje.