Monthly Report (March 2009)
1. PUBLIC EVENTS AND VIOLATION OF DEMOCRATIC PRINCIPLES
1.1. Elections 2009
1.2. The Constitutional Court abolished the disputed birth rate stimulations
1.3. Hospitalisation at the Psychiatric Hospital “Skopje” on the verge of legality
1.4. System error or..?
2. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
2.1. The cases of the workers injured and killed at their places of work
2.1. The case of Vera Bogoeva
3. CASES INVOLVING THE POLICE AND THE COURTS
3.1. The case of Vasil Gligorov
3.2. The case of Jovica Janevski
————————————————————————————–
1. PUBLIC EVENTS AND VIOLATION OF DEMOCRATIC PRINCIPLES
1.1. Elections 2009
The 2009 local and presidential elections seems to have been carried out in the way most desired by those that see the Republic of Macedonia among the democratic countries in the world and those who (all heartedly) helped from outside for this to happen. “Elections in peaceful atmosphere in compliance with most of the international standards” was the assessment by OSCE/ODIHR. Also the freedom of expression and gathering, the candidates’ rhetoric, the votes counting and the work of the media were positively assessed. The atmosphere on the day of the elections was assessed as peaceful, with no cases of violence or bigger incidents and the second round of the elections was assessed as better than the first one. The US Ambassador in the country H.E. Philip Reeker, congratulating the Macedonian citizens for the generally good elections, agreed with the assessments by the elections monitoring mission. The other most relevant observers had similar assessments for the first round. They were full of praises[1].
Brussels congratulated us. The US State Department congratulated and praised the citizens and the authorities in Macedonia about the successful carrying out of the presidential and local elections.
However, the praises were also accompanied by certain remarks. The head of the ODIHR, Janez Lenarcic, who visited the country in order to personally monitor the first round of the elections, stated that peaceful elections were essential but not sufficient. “There are other aspects”, stated Lenarcic emphasising the aspect, that the ODIHR Mission stated in its two interim reports on the elections, “and this referred to the complaints about threats that were rather frequent and which we hope that the Government will deal with and resolve for the next, second round, of voting.” The head of the OSCE/ODIHR Observation Mission remarked on the pressure and threats imposed during the entire process of elections (by public servants and party activists of the ruling party); the revision of the complaints in the first round outside the legislative deadlines (the State Election Commission not always reached consensus and the court procedures were not transparent) regarding the voters’ list shortcomings, which was also pointed out by the ODIHR representatives and the US Ambassador who asked for a package of legislative solutions for depolitisation of the public administration; frequent mentioning of the slow or futile legal procedures against those who were charged for elections’ violations in 2008; the fact that the elections were monitored by 7,038 domestic and 544 foreign observers says a lot …
The citizens’ association Most assessed the second round of the elections as peaceful and with no incidents in and around the polling stations. Still, in the course of the voting the 3,750 Most observers noted cases of family and group voting, shortcomings in managing the voters’ lists, violated secrecy of voting and at many of the polling stations the voters were not aloud to choose for which elections they would like to vote, but they were forced to vote both for the local and the presidential elections.
There were complaints of pressure expressed as a fierce political repression by the independent candidate for a Mayor of the Municipality of Vevcani, complaints of propaganda on religious grounds in Struga by PEI’s leader and candidate for mayor. The Helsinki Committee also received complaints with serious accusations from Berovo (SDSM’s Berovo Municipal Election Staff) and from Suto Orizari (“Together for Suto Orizari”). And the public seems to have become numb to the more “subtle” forms such as the zealous laying foundations and initiating construction works something which is completely illegal during the campaign and the elections, while the competent Anti-corruption Commission is still silent.
Another interesting thing was the fact that the major argument supporting all the praises was the conclusion that there had been no incidents, so everything reminded of the really fair and democratic elections since Macedonia’s independence something that the international observers as a rule assessed as “Mainly fair and democratic regardless of the irregularities”, even when we had statements about stealing votes even for the presidential elections.
The annalists, especially after the second round assessed as positive the non-functioning of the Macedonian-Albanian coalition agreement for support in the second round, which failed. It is a good thing that the voters from both ethnic groups in significant numbers refused to follow the directions of their party leaders. The newly elected President is the first one out of four previous so far who is not disputed due to the regularity of the election process, but immediately he has been disputed along two other lines. The first one that he was elected by 25 percent of the voters and the second one that the Albanians did not voted for him. Having in mind the “federalised” pre-election campaign (during which each candidate addressed “his/her own”) and after the elections the statements of most of the experts and media in the Albanian bloc very clearly dispute the newly elected President’s right to represent the Albanians, which speaks about further paralysing of the Macedonian state along the ethnic line which could be a serious problem from the aspect of the rule of law and respect of human rights.
These elections at the end are only a reflection of what kind of state we have.
1.2. The Constitutional Court abolished the disputed birth rate stimulations
The Constitutional Court of the Republic of Macedonia based on its constitutional competences at the session held on 18 March 2009 adopted a decision (U.No.: 199/2008-0-1)[2] abolishing a part from Article 24a from the Law on Health Insurance providing special pecuniary supplement for each live-born child, to each mother for the birth and the motherhood over the live-born child living in the municipalities where the birth rate growth is below 2.1 live-born children per woman, and according to the data of the State Statistical Office of the Republic of Macedonia, calculated for the previous year. The pecuniary supplement for each live-born child which was supposed to be paid for continuous nine months and if more than one children are born at the same time (twins, triplets and more) the supplement should have been paid for a year from the day of the birth and in the amount 30% of the average net salary per employee in the Republic of Macedonia published for the relevant month.
The Constitutional Court concluded that “the health insurance as an element of the right to social insurance takes as fundamental grounds the provision in the Constitution according to which the Republic should look after the social protection and social security of the citizens in compliance with the principle of social justice as well as the constitutional determination that humanism, social justice and solidarity are the founding values of the constitutional progress.
This decision of the Constitutional Court has taken the side of those who were claiming publicly that the abolished article and the birth-rate stimulation based on it is unconstitutional, for the same reason that the Court found that: “it represents limitation of exercising the right to health insurance by the persons-mothers who live in the municipalities that are not covered by the disputed legal provision violating the principles of equality of the citizens before the Constitution and the laws, the social equity, equal protection for the motherhood and the children, as well as the constitutional determination for humanism, social justice and solidarity as the fundamental values of the constitutional order in the Republic of Macedonia.
We should remind you that the Helsinki Committee on 9 March 2009 presented an analysis “Does the Government have a real strategy for fighting the “white plague”?”[3] in which among other things it is stated that: the Helsinki Committee is waiting for the outcome from the initiated procedures before the Constitutional Court and warns that the legal amendments most directly discriminate the mothers based on the municipality in which they live, and by establishing only the mother as the bearer of the right, and the father only in exceptional circumstances, which is gender discrimination. Looking at the list of municipalities that fulfil the conditions where only in two of them (Zajas and Oslomej) the majority of the population belong to the Albanian ethnic group, one cannot avoid the feeling that there is also ethnic discrimination.”
The Helsinki Committee welcomes this decision by the Constitutional Court of the Republic of Macedonia from the aspect of the dignity that this institution should have in the state and as an expression of not always easy opposing the almost absolute power that has been established in the Republic of Macedonia.
Now again the Government gets its turn to decide whether it will be able to ensure conditions for implementing the planned stimulation on the entire territory of the state or to give it up creating a suspicion that this is just one more measure in the arsenal of the already seen ad hoc advertising populist measures.
1.3. Hospitalisation at the Psychiatric Hospital “Skopje” on the verge of legality
The Helsinki Committee for Human Rights of the Republic of Macedonia has reacted on a number of occasions concerning the problem of forced hospitalisation at psychiatric hospitals.
Unfortunately, after the incident with fifty Greek activists for human rights who together with the most renowned Greek psychiatrist came to visit the individual Vasil Gligorov with allegations of forced detention and hospitalisation, we found out that the issue of forced hospitalisation spread its roots also towards the hospitalisation with consent for voluntary treatment.
Namely, as we elaborate further down the case of the person Vasil Gligorov and the answer that we received from this institution’s officials about the way the hospitalisation was done, making it clear that in doing so the provision regulating the voluntary treatment procedure was also violated.
The authorities, aware of the violation, in their response informed us that because of the difficulty to evade Article 59 Paragraph 2 from the Law on Extrajudicial Proceedings they have addressed many institutions[4]. According to this legal provision apart from the personal written consent given before an authorised person by the person that is admitted also two witnesses with certain competences are also required. If this is not provided than the authorised person is obligated within 48 hours to submit a request to the court for further revision. In their elaboration, which in no case can justify the violation of the law, they state that this provision violates the right of the persons who are accepted in this institution, i.e. their admission was done in a discriminatory way compared to any other person admitted in another hospital. Just like any other hospital to be made equal to the psychiatric hospital and as if there is no difference in reference to the type and the way of treatment of the patients among the hospitals, which is an amazing conclusion by the experts at the psychiatric hospitals presented in the request for amending the given article.
Furthermore, in order for the justification to be taken seriously we also got the statements of support for amending the disputed article by the Ministry of Health, the Ministry of Justice, the World Health Organisation and the Ombudsman. Allegedly, the authorised persons concerning this issue addressed also the Helsinki Committee but they had no answer which is far from the truth since we have not received any similar request for support regarding this issue, which again points at irresponsible conduct on the part of the officials of the psychiatric hospitals. Even more since when we visited the psychiatric hospital on 30 October 2008 and after several hours of frank discussion with the staff they never mentioned the problem that they had been faced with regard to the voluntary hospitalisation for treatment. On the contrary, when we asked them they confirmed the problem with the forced hospitalisation, more specifically the actions by the court in case of a need for treatment without the consent by the patient.
The Director and the Deputy Director of the institute informed us that the Court had not acted within the legally envisaged period of three days. The Court sometimes brought decisions even 3 to 4 months after the day of submitting the request. In such a case if the person is in a bad health condition s/he is still hospitalised with no court decision because the authorised staff does not want to be held accountable for the consequences that might appear as a result of his/her dismissal. There have been cases when the patient was kept, treated and dismissed before the Court decides. However, they have not done anything in reference to this issue, nor have they publicly spoken of this problem. On the contrary they have been keeping people for treatment for several months with no court decision.
Hence, one can rightfully ask whether the institution in almost all the cases of admission of patients for treatment violates the provisions from the Law on Extrajudicial Proceedings that regulates the procedure for that purpose.
In reference to the justification for the request to amend Article 59 Paragraph 2 based on discrimination of these persons by requiring two witnesses that should confirm his/her consent, we can only point at Article 12[5] from the Law on Mental Health which brings only one single conclusion that the patients at the psychiatric hospitals cannot be compared to the patients of any other hospital, otherwise the general provisions from the Law on Health Protection would have applied. More specifically, in that case the Law on Mental Health would have been unnecessary and especially its provision in Article 12. And all that aimed at the protection from involuntary admission of individuals.
All this points at the fact that none of the legal provisions or regulated obligations for the admission procedure for treatment in a psychiatric hospital are implemented which points at existence of a real and profound problem at these institutions from the aspect of respecting human rights. Due to the difficulties with the implementation of the Law on Extrajudicial Proceedings people are detained at these hospitals with no legal grounds for that. On the other hand the institution’s officials are trying to blame for one of the problems the Court and for the other the group that drafted the Law for creating a discriminating and in practice inapplicable law. So why would they react when it is much easier to violate the law?!
1.4. System error or..?
Last month Macedonia was shaken by several cases of paedophilia which apart from horrifying the public they also brought forward the issue of responsibility by the public institutions.
Namely, in compliance with the Law on Family, the Centre for Social Affairs is also obligated to undertake the necessary measures for the protection of the individual, the rights and the interests of the child[6], and at same time to monitor the practicing of the parental right[7]. If it is assessed that it is necessary and in the interest of the child, the Centre for Social Affairs should worn the parents about the shortcomings in the education and the development of the child[8] for which even a constant supervision may be imposed for the practising of the parental right[9].
The parent who abuses his/her parental right which includes physical or emotional violence over the child as well as sexual abuse after getting an opinion from the Centre for Social Affairs, that person will be deprived of his/her parental right[10].
Undertaking this kind of measures means an active role of the Centres for Social Affairs and continued monitoring of the situation, especially of the children building a system of preventive protection which with the latest developments has become questionable.
In a situation when two children in Skopje and one in Kicevo were victims of sexual abuse and psychic and physical abuse for a longer period of time and they had already worked with professionals from the Centre for Social Affairs since they came from families of divorced parents. Thus the logical question would be how it is possible to have this kind of omission because of which the children are the victims who will have long-term consequences.
Aware that the centres are also faced with the problem of overburdening with cases and various obligations and insufficient resources and equipment, we still believe that this cannot be a real justification.
The Helsinki Committee would like to remind you also of some other cases when the institutions from the field of social affairs failed in their job and the victims were the children. Namely, last summer we witnessed an act when the father of a family of many children buried his eighth newly born child in the backyard of the family house; also two children who ran away from the Home for Children “11 October” to become victims of sexual abuse; and recently another two children who ran away from the same home and who were fortunate and safely reached the town where they lived but the cases of paedophilia followed.
From what we have presented there is evident possible system error, however unfortunately those who are competent in this field in the state don’t seem to share this view and the irony is even bigger when the Ministry of Labour and Social Policy continually gives arrogant statements that the institutions should not be held responsible for this.
We would like to remind you that in compliance with the UN Convention on the Rights of the Children the Republic of Macedonia took on the obligation as a member country to undertake all the proper legislative, administrative and social measures for the protection of the children from all forms of physical or mental violence, abuses or exploitation including sexual abuse[11].
The domestic legislation establishes that the Ministry of Labour and Social Policy is the competent body for the supervision of the activities of the centres for social affairs and some other bodies in the area of social protection, the same that constantly excuses itself as not being responsible because of which we have been asking if it is not the one, then who is responsible for the protection and development of the rights of the children.
The Helsinki Committee has been constantly pointing out the problems in the work of the aforementioned institutions but so far there has been no information that any of the officials has been held accountable for that or if there has been any changes in the organisational system, stating that it is high time for the institutions to start performing responsibly the undertaken obligations in order to avoid a situation when we are talking about these things in vain and the greatest victims are the children.
2. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
2.1. The cases of workers injured and killed at their places of work
In the first quarter of 2009 we have been witnesses of a bigger number of cases of injured and killed workers at their places of work, more specifically while performing their duties. In this period we have had one killed worker in the courtyard of the “Karpos” Factory in the Skopje, settlement of Vlae, in an accident that happened on 12 February 2009; two injured miners in an accident at the Dobrevo mine on 17 February; two seriously injured miners in an accident at the Kriva Palanka mines on 4 March out of whom one of them died on the next day; a worker of “Beton Kom” was killed at the “Suvodol” mine of REK Bitola on 1 April. It is also a fact that in the course of the past 2008 and even 2007 we had a big number of killed or injured workers.
Unavoidably one needs to ask the question what else should happen and how big and serious it should be in order to make the authorities finally start supervise the implementation of the Law on Security and Safety at Work?
Systematic and continued failure by the State Labour Inspectorate as well as by the Ministry of Labour and Social Policy to act contributes for the continued loss of human lives or the working ability as a result of serious injures at the place of work. Their failure to act only supports the general trend of avoiding any responsibility and closing the cases as accidents or Force Majeure, typical for all of them. These easygoing attitudes by the relevant institutions that need to ensure implementation of the laws in this field additionally stimulate the employers to keep the elementary working conditions in order to gain personal profit. All these brings us to a conclusion that the laws that should protect the workers at their jobs are only simple and unimplemented legal texts.
The employer has to undertake the measures necessary for ensuring security and safety for their employees at work, including protection from professional risks, ensuring information and training and providing proper organisation and means. The employer is obligated to introduce these protective measures and to choose such working and production methods that will improve the level of security and safety at work, and they should be incorporated in all the activities of the employer and at all levels of the organisation.
Unfortunately one can safely conclude that the employers do not implement their legal obligations in reference to the organisation of the protection at the place of work in compliance with the technological process, ensuring safe place of work for every worker before allocating him/her on a specific job; they do not fulfil the norms and standards for the safety at work in the working and utility premises as well as of the working tools and on the other side the Ministry of Labour and Social Policy and the State Labour Inspectorate have failed to fulfil their legal duties and to be their corrective and the enforcer of the law.
The Helsinki Committee for Human Rights once again would like to remind you that the Law on Security and Safety at the Place of Work as well as the many international instruments that also obligate the Republic of Macedonia in reference to this issue should not exist only as an ornament in this society. Once again we remind the State Labour Inspectorate that they have in their hand clearly defined legal means and ways for sanctioning the illegal and dangerous operating of the employers, for reducing the threat to the security and safety of the workers and by that gradual decreasing and even overcoming of these tragedies.
2.2. The case of Vera Bogoeva
Vera Bogoeva, based on an effective court decision[12] to get her job[13] back, on 3 June 2005 went back to work at the Publishing House Misla S.A. Skopje. Bogoeva with an Official Decision got the position – saleswoman – travelling saleswoman, representative for the other towns in the Republic of Macedonia. The employer concluded an employment contract with this employee but they did not give her a copy of the Contract only a Notice about her position and the allocated tasks.
The elaboration of the notice stated that the “wages and the contributions for the completed job will equal her profit because the employer’s account was blocked for a number of years”. Furthermore, in compliance with the claims by the party the employer failed to provide any conditions or means for work and after she got her job back she did not get either salary or paid contributions for her salary. Due to this situation the party on 17 October 2005 sued the employer for the unpaid salaries and pension and disability insurance contributions.
Three years later the First Instance Court Skopje II adopted a court decision[14] refusing the plaintiff’s request and demanding from her to cover the court proceedings costs. In the court decision elaboration the court agrees with the previously presented factual situation and established that an employment contract was signed. However, it refers to the above stated Notice that the party accepted in which it is stated that the salary and the contributions for the work done will be equivalent to the profit made.
Namely the court refers to the provision from the Law on Labor Relations[15] according to which the worker has the right to a salary proportional to the work done and the worker’s contribution. In compliance with this, according to the court since the employee accepted the aforementioned Notice she knew and was aware that the description of her tasks incorporated selling books around Macedonia and that her salary would have depended on her earnings. But since she failed to sell anything and did not contribute to the profits of the employer, the Court concluded that the employee has no right to any salary or contributions.
The Helsinki Committee was astonished with this, unfortunately, court decision and because of that we refer to the Constitution and the Law on Labor Relations.
Namely in compliance with the Constitution, the Republic of Macedonia is a social state in which everybody has a right to a job and adequate income as rights regulated with the law and the collective agreements.
The Law on Labor Relations regulates that by signing an employment contract a working relation between the worker and the employer is established[16] where the employer is obligated to provide the employee work they agreed for or to provide him/her with all the necessary means and working materials[17], and definitely the employer is obligated to provide the worker with wages for his/her job[18] especially because the salary basis is regulated by the law and it is incorporated in the very employment contract[19].
However, the essential thing in this case is the fact that the First Instance Court Skopje II evidently omitted to mention the fact that the worker’s salary cannot be lower than the lowest salary established by law and the collective agreements that directly obligate the employer.
From this it is obvious that the salary of the employee is definitely subject of an agreed relation between the worker and the employer but only for the amount of the salary above the minimum established salary from which one cannot go lower, let alone as the court decided not to have any salary at all because the employee failed to earn it.
However the court does not stop at his. In the same court decision it states that it looked into the request by the plaintiff concerning the payment of the social insurance contributions, but since the plaintiff failed to act in compliance with the duties imposed by the court which meant submitting evidences about the amount of the contributions that the employer was supposed to pay to the Pension and Disability Insurance Fund, the Court refuses this request as unfounded.
With this court evidently once again ignores the provision from the Law on Labor Relations which reads “the employer is obligated to register the employee for the compulsory social insurance (pension and disability, health and unemployment insurance)… The certified photocopy of the registration should be handed to the employee… “[20].
Hence, the logical dilemma is how it is possible for the worker to have proof of the contributions payment if the employer had not paid them and did not forward a copy of that to the employee or even more the question why the court did not try ex officio to get that evidence before deciding upon the claim by the plaintiff.
In time of economic and social crisis when the rights of the workers are most threatened and the employers are trying to profit from lower deposits and contributions for the workers in order to make big profit; when the Republic of Macedonia is faced with the problem of insufficiently secured workers rights, salaries bellow the minimum, unpaid contributions without proper protection at the job where the most common consequence is an injury or death at the job, the Helsinki Committee believes that the courts in Macedonia do act in a negligent and indifferent way towards the rights of the workers and when deciding they ignore even the fundamental postulates in the labor relations.
Even though the Committee rarely comments first instance court decisions counting on the wisdom of the Courts of Appeal, in this case it felt it was necessary to express its position on this issue sincerely hoping that the higher court will correct the error and at least reduce the suspicion in the Macedonian justice.
3. CASES INVOLVING THE POLICE AND THE COURTS
3.1. The case of Vasil Gligorov
On 18 February 2009 as it is already a known fact, the public was shaken by the news about the arrival of about 50 Greek activists for human rights accompanied by the most renowned Greek psychiatrist. The goal of their trip to the Psychiatric Hospital in Skopje (Bardovci), more specifically the visit to Vasko Gligorov who is hospitalized for treatment there, were the allegations that he had been forcefully detained by members of the police and forcefully hospitalized at the hospital. According to their claims the only reason for this treatment of Vasil Gligorov was his pro-Greek position, more specifically the thesis of non-existence of the Macedonian nation.
The visit did not happen i.e. the officials at the Psychiatric Hospital in Skopje (Bardovci) rightfully did not allow the visit because the Greek activists did not have the necessary permission from the Ministry of Health.
The case was covered by all possible media for couple of days, so we can conclude that it was interesting for the broader public because of the country that the activists for human rights came from, a country with which we have had a name dispute for many years, and not because of the human rights issue. In this case the media somehow forgot the issue of respect of human rights, especially the right to privacy and its protection, and they were more interested in the fact that GREEK citizens came to visit our citizen. The absurdness was even greater, without taking into consideration the truthfulness of the allegations for the pro-Greek positions that opened the issue about the freedom of expression of thought, personal data of a person-a patient in a hospital and this was what the media and later on the institution were talking about. Hence, from the very beginning Article 3 Paragraph 2 Subparagraph 1 and 4[21] from the Law on Protection of the Rights of the Patients as well as Article 25[22] and 33[23] from the same law and Article 7[24] from the Law on Mental Health were violated.
The Helsinki Committee for Human Rights starting from the presented assertions addressed in writing the Ministry of Interior regarding the truthfulness about the forced detention of Vasil Gligorov after the raid of the police in his home at 2 a.m. Furthermore, the Committee addressed the Psychiatric Hospital Skopje (Bardovci) in writing asking from the officials to inform us about the way in which the person was detained, i.e. whether there was a court decision in case he refused the treatment or if it is a voluntary hospitalisation was it in compliance with the legislative provisions.
The Ministry of Interior, the Sector for Internal Control and Professional standards in its response informed us that the allegations of a raid and violent detention of the person Vasil Gligorov were untrue. Members of the police upon a report by his mother, that she was physically and mentally abused by her son, they reacted in their home where after the interview they were informed that Vasil for a number of years was periodically treated at the Psychiatric Hospital Skopje. An Ambulance also arrived at the apartment and after the phone call by his mother and the medical check up it was decided that Gligorov because of the deteriorated mental state had to be transferred for treatment. After Vasil and his mother agreed, he was transferred with the assistance of the police officers and the Ambulance to the Psychiatric Hospital Skopje (Bardovci). Immediately after arriving, Vasil signed a consent form for voluntary treatment and was accommodated and kept at the hospital.
We also got an answer by the officials from the Psychiatric Hospital Skopje. We were greatly surprised when the hospital which also harshly reacted to the disclosure of the identity of their patient and the violation of privacy and the rights of the patients by the media replied with a letter of 4 (four) pages explaining the entire treatment of their patient Vasil Gligorov. Namely, the answer firstly provides personal data about the patient, more specifically his name and surname, date of birth, place of residence, marital state, and education, and afterwards the sequence of all his hospitalisations with the history of Vasil Gligorovs disease: date of admission and dismissal, duration, way of hospitalisation and indications, i.e. diagnosis.
Regardless of the elaborate response, full of data about all the hospitalisations and the history of the disease, the official presented information about the manner the last hospitalisation was carried out probably because of the evident greater interest and exploitation in the public. Regarding the latest hospitalisation we were informed that the patient accepts the hospitalisation in a passive manner and signed a consent form for hospitalisation. Afterwards they even sent us the signed consent for voluntary treatment. The striking thing here is the clear violation of Article 59[25] Paragraph 2 from the Law on Extrajudicial Proceedings that regulates the voluntary treatment.
Contrary to the regulations, the consent signed by Vasil Gligorov and co-signed by two literate adult witnesses, but not by witnesses who are employed in a public medical institution bearing in mind the fact that the document clearly showed that two staff members signed it. As a justification for the violation they state the fact that due to the inapplicability and discriminatory nature of the Article regarding the other patients they addressed the institutions for amending the disputed article which definitely gives them a right to violate it until its amendment.
Bearing in mind also the issue of the forced hospitalisation, we can conclude that the problem is deeper also in regard of the consent for voluntary treatment. According to the officials the problem is in the legislative provision which is practically inapplicable and even discriminatory and they believe that this justifies their guilt for the fact that the Law on Extrajudicial Proceedings in the section which regulates this issue should be completely amended, and before that happens to be violated.
3.2. The case of Jovica Janevski
The Helsinki Committee for Human Rights of the Republic of Macedonia was contacted by the individual Jovica Janevski from Tetovo who informed us that he was taken into custody at the Tetovo Police Station on 14 October 2008 at 10.50 p.m. based on a court decision for serving a sentence imprisonment of two years.
The party informed us that right after the arrest he was first taken to the basement premises of the Tetovo Police Station and afterwards at the office on the second floor where he was beaten up by two police officers. They told him that they came from Skopje and that they were members of the special unit.
It was astonishing to hear the claims by the party that he was handcuffed while he was beaten and he was hit with fists and a gun handle on the head and near the ears gaining several body injuries that were registered by the prison physician at the Skopje Prison where he was transferred on the next day.
Based on the presented claims by the party, supported by a medical documentation, as well as suspicions that in this case there were indications of torture, the Helsinki Committee for Human Rights addressed the Sector for Internal Control and Professional Standards at the Interior Ministry.
The Sector informed us in writing that after investigating the factual situation about the presented case they came to a conclusion that the individual Jovica Janevski was admitted at the Tetovo Police Station in good health, with no injures but on the next day on 15 December 2008 when he was handed over to the Skopje Prison the physician documented body injuries.
In compliance with the above presented facts the Sector concluded that the injured Jovica Janevski got the injuries during his stay at the police station or during his transportation to Skopje.
In the same letter the Sector states that they believe that there are grounds for suspicion for a committed crime “Torture” regulated in Article 142 from the Law on Criminal Procedure of the Republic of Macedonia and for this reason they informed the Basic Public Prosecutor in Tetovo about the incident in a special report.
Satisfied with this conclusion by the Sector for Internal Control and Professional Standards, the Helsinki Committee calls the Tetovo Basic Prosecutor’s Office who has the case to initiate criminal procedures against the perpetrators.
The Helsinki Committee sincerely hopes that the criminal prosecution by the Tetovo Prosecutor’s Office will be carried out in compliance with Article 142 from the Law on Criminal Procedure “Torture and other cruel, inhuman or degrading treatment and punishment” and in this case we will not see the frequent practice of latent avoiding of the presented article from the law and using other legal provisions that envisage more lenient sentences for the perpetrators.
——————————————————————————–
[1] The vice chairperson of the monitoring mission of the OSCE Parliamentary Assembly Fia Christmas Moler stated that she was satisfied to see that the country had undertaken numerous steps on the path towards democracy. The irregularities and the absence of trust remains and this is the challenge that the country needs to face but that there are no doubts that we have made progress in organising elections in compliance with the international standards.
[2] The full text of the decision can be found on the internet web page of the Constitutional Court of the Republic of Macedonia. http://www.usud.gov.mk/domino/WEBSUD.nsf
[3] Published on the Committee’s Internet web page: http://www.mhc.org.mk/default.asp?ItemID=3AB6E2C9BA1E7C469D8DD07E62A9595C
[4] See footnote 29 from the same report
[5] „Individuals with mental disabilities have special rights in regards to their special needs, in accordance with this and other laws“
[6] Article 87 of the Law on family
[7] Article 86 of the Law on family
[8] Article 88 of the Law on family
[9] Article 89 of the Law on family
[10] Article 93 of the Law on family
[11] Article 19 of the UN Convention for protection of children
[12] Verdict XV P.br. 2059/96 from 28 October 2003
[13] Decision 03-02 3 June 2005
[14] III PО br.914/07 from 23 September 2008
[15] Article 75 Par. 1 and 2 from the Law on Working Relations (revised text).
[16] Article 13 Paragraph 1 from the Law on Labour Relations
[17] Article 40 from the Law on Labour Relations
[18] Article 41 from the Law on Labour Relations
[19] Article 28 Paragraph 2 Subparagraph 8 from the Law on Labour Relations
[20] Article 13 Paragraph 3 from the Law on Labour Relations
[21] “The principle of humanity is based on: respect of the individual’s personality, as a human being and respect of the privacy of the person”
[22] “The patient has a right to confidentiality (secrecy) of personal and medical data that have to be kept in secrecy even after his/her death, in compliance with the regulations for the protection of personal data”
[23] “The medical institution is obligated to: … 11. ensure confidentiality (secrecy) of patient’s personal and medical data that refer to the health of the patient, the medical, i.e. the clinical state, diagnosis, prognosis and treatment as well as all other information of personal nature, even after his/her death, in compliance with the regulations for keeping professional and business secrets, as well for the protection of personal data”
[24] “Personality, dignity and privacy of every person who are mentally ill have to be respected”.
[25] “When the public medical institution admits a person with a consent confirmed with his written statement before an authorised person and in front of two literate adult witnesses who are not employed at a public medical institution and are not close relatives in direct or side line up to the forth level, in-laws up to the second level or a spouse of the person who is being admitted, as well as the person who brought him/her to the medical institution and if after the admission the person has limited freedom of movement or contacts with the outside world, the official is obligated within 48 hours to report to the court”.