Monthly report – October 2015

The Monthly report on the human rights situation in the Republic of Macedonia for September 2015 includes the following topics: High School March; Special Public Prosecution; The Appellate Court in Bitola stands in defense of police harassment; Femicide – the consequence of inefficient systemic protection of women; Case –   Preschool daycare inaccessible to a child with mild intellectual disability; Case – Discrimination against Roma on the border crossings in the Republic of Macedonia – recommendations for overcoming this discriminatory practice; Case – Drage Nikolovski.

HIGH SCHOOL MARCH

In the course of this past month, the Helsinki Committee received reports with allegations of threats against the high-school students who attended the high-school protest against the bad reforms in education which took place on 21.10.2015. The allegations were submitted by high-school students, as well as their parents. What is especially worrying are the indications that students have been locked inside their schools by school employees, who locked down the doors of the high-schools, as well as the fact that certain media reported that the students had been paid money as a reimbursement for their attendance of the rally, which led to the appearance of graffiti with this type of content in front of two high schools today. This violates the honor and reputation of the children who wish to channel their dissatisfaction against the reforms in education.

The Helsinki Committee reminds that such pressures on high-school students are contrary to the Constitution of the Republic of Macedonia, as well as all of the international standards for protection of the right to freedom of association, expression, as well as the right to peaceful protest. Moreover, the Constitution of the Republic of Macedonia guarantees the citizens’ (including children) right to a peaceful gathering and public expression of dissatisfaction. The exercise of this right may be restricted only during a state of war and state of emergency. The Convention on the Rights of Children, which has been Ratified in the Republic of Macedonia and constitutes part of our legal framework, guarantees this right to children in Article 15 which stipulates that member-states recognize the children’s right to freedom of association and freedom of peaceful assembly and that no restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. The states have a positive obligation to protect this children’s right and educate the civil and public servants, as well as police officers about the children’s right to protest in order to facilitate the exercise of this right. The state’s positive obligation for special protection of children participating in protests is also evident in the case law of the European Court of Human Right. In the case Castle and Others vs. Great Britain, the European Court of Human Rights established the children’s right to participate in protests, emphasizing that they should be treated as a vulnerable group and therefore the state, especially the police force, need to provide them with special protection when exercising this right. In addition, locking children inside schools in order to prevent them from attending protest constitutes unlawful deprivation of freedom which is prohibited in accordance with the Criminal Code of the Republic of Macedonia. Article 140, paragraph 3 from the Criminal Code states that “If the unlawful arrest is performed by an official person, by misusing the official position or authorization, he/she shall be punished with imprisonment of six months to five years.” Based on this article there is a possibility for the public prosecution to act on hearsay and investigate the information on the deprivation of freedom of high-school students.

Recommendation:

The Helsinki Committee believes that such limitation to the freedom of movement restricts the children’s right to protest and their right to express their views on a process, such as the educational process which directly affects them, which is why we recommend compliance with Article 21 from the Constitution of the Republic of Macedonia guaranteeing the right to peaceful assembly, as well as the competent institutions taking into account the high-school students’ standpoints concerning education.

SPECIAL PUBLIC PROSECUTION

On 15 September 2015, in accordance with the Przhino Agreement, the Assembly of the Republic of Macedonia unanimously adopted the Law on Public Prosecutor’s Office on prosecution of crimes related to and arising from the content of the illegal interception of communications. This law officially envisaged the appointment of a special public prosecutor who was expressly elected by Parliament after prior agreement among the four main political parties was achieved.

Although the election of the special public prosecutor went by summary proceedings, she has not yet started work, due to the obstruction by the Council of Public Prosecutors regarding the team requested by the prosecutor. In fact, the Council of Public Prosecutors opposed the request of the prosecutor for her team to have 14 prosecutors for longer than a month and a half so that she initially chose seven, and then picked another five public prosecutors. The halt in the work of the Special Public Prosecutor followed the halt in the negotiations towards fulfillment of the Przhino Agreement which raises reasonable suspicions about political influence over the decisions of the Judicial Council. Additionally, the legal deadline of 35 days for the provision of funds for the work of the Special Prosecutor’s Office was also missed, which further stalled its work.

Bearing in mind the fact that the public prosecution did not even have its offices until recently, it can be concluded that that so far the pace of work does not correspond to the reason why the prosecutor was appointed – initiating urgent investigation against all persons suspected of committing crimes related to and arising from the content of the unlawful interception of communications, including the highest state officials.

Recommendation:

The appointed public prosecutors to form teams as soon as possible and the Office of the Special Public Prosecutor’s to finally start work.

THE APPELLATE COURT IN BITOLA STANDS IN PROTECTION OF POLICE HARASSMENT

Starting from August 2013, the Helsinki Committee has followed the case M.V.

(victim of police violence and harassment), against T.A. (police officer at MoI Bitola). In June 2013, M.V. was summoned by a police officer from the Police Station Demir Hisar for an informative call, without being given a reason for this. According to M.V.’s testimony, immediately upon entering the premises, a police officer started shouting at him and offending him, accusing him of theft of car batteries. Then T.A. entered the room and kicked M.V. in the ribcage area with his knee which was followed by blows to the head and kicks all over his body.

The attack brought M.V. down to the floor, whereby the police officer lifted him up and took him to another room where there were juveniles. Despite the pressure, the children refused to corroborate this theory. At the end T.A. informed M.V. that his truck has been searched and that no stolen car battery was found in it, whereby he was released. Together with his father, M.V. was immediately sent to the hospital in Demir Hisar, and then was taken to the surgical ward at the Public Healthcare Institution in Bitola. Due to the pain and injuries sustained, M.V. was held for a two-day treatment. M.V. possesses the medical notes, medical findings and the forensic-psychiatric expert examination for non-material damage.

The legal representatives of M.V. filed a private lawsuit at the Primary Court in Bitola for the crime of “Bodily Injury”, whereby the Court initiated proceedings which were fully monitored by the Helsinki Committee. According to Article 49, paragraph 3 from the Law on Criminal Proceedings (LCP) )*, , the Primary Court was to establish that the reported crime (“Torture and Other Cruel, Inhuman or Degrading Treatment”) is prosecuted ex officio, not upon submission of a private lawsuit, and redirect the lawsuit to the Primary Public Prosecutor Bitola. This did not take place, so the trial proceeded contrary to the Law on Criminal Procedure.

In the course of 2014, the Primary Court adopted judgment K-432/13 which found the police officer guilty and was sentenced to probation for a period of 30, with a re-evaluation scheduled after a year. Acting on the appeal of the sentenced police office, the Appellate Court Bitola revoked the judgment of the Primary Court with Decision KZh-684/14 and returned the case for a re-trial. According to the Appellate Court it was not clear how the injuries sustained by the victim had occurred. In the course of the retrial, bearing in mind the guidelines of the Appellate Court, the Primary Court adopted Judgment K-564/14 acquitting the defendant. Upon the victim’s appeal, the Appellate Court, by adopting Judgment KZh-277/15 upheld the acquittal of the Primary Court.

After monitoring all the court hearings and reviewing the case files, the Helsinki Committee expresses regret and concern over the actions of the Primary Court Bitola which could not have acted on a private lawsuit. The case should have been redirected to the Primary Public Prosecutor. What is particularly worrying is the standpoint of the Appellate Court, which, through its guidelines to the Primary Court, stood in protection of police violence and recklessness. Due to all of this, the Helsinki Committee will represent the victim in front of the European Court of Human Rights.

Recommendation:

The authorities should implement a policy of zero tolerance when it comes to acts of torture on the part of public officers. The state needs to face the phenomenon of impunity and the privileged treatment given to the police by the judiciary. The focus should be directed towards the victims of torture that the country has not yet started providing with adequate legal, medical, psychological and social support. In order to achieve this goal, it is necessary to urgently implement EU Directive 2012/29 establishing minimum standards on the rights, support and protection of victims of crime.

FEMICIDE – A CONSEQUENCE OF THE INEFFICIENT SYSTEMIC PROTECTION OF WOMEN

In the course of the Month of October 2015, the public was informed about yet another case of femicide in which a woman was brutally axed by her husband. In the daily-news bulletin, the Ministry of Internal Affairs cited damaged family relations as a reason for the murder, while, off the record, the event was preceded by an argument. Only two days after, the media covered an event in Kochani in which a man took his life by hanging himself, after the previous night he had physically abused his wife and stabbed her with a knife in the arm.

The Helsinki Committee regretfully reminds that these two events are only new episodes in the saga of multiple acts of gender-based violence and domestic violence which have led to tragic outcomes in the past two year. In fact, in May this year, an elderly woman was found dead in her home in the Skopje residential area of Przhino with visible traces of violence, whereby the main suspect was her son. In January, a pregnant woman was killed at the Children’s Clinic in Skopje and her body was dumped from the roof by the murderer. In the course of 2014 the state law enforcement authorities have failed to prevent as many as 5 cases of gender-based violence which resulted in tragic outcomes. At the beginning of May 2014, a dead woman was found in Kavadarci and her husband was accused of the murder. Near the end of the month, a man from Skopje killed the partner that he was having a love affair with, with firearms and then he killed himself. The victim had been repeatedly warning that he would kill her if she dared to leave him. Towards the end of July, a man from Skopje killed his partner and her sister with firearms, whereby he committed suicide. Only three months later, in November, we witnessed the triple murder in Kavadarci, where a man killed the mother, father and sister of the spouse he was divorcing. The victim had reported the offender for domestic violence on several occasions, yet the institutions provided no protection to the victims. Furthermore, near the end of the month of November another triple murder took place, in Zletovo, where a man killed the parents of the spouse he was divorcing, as well as an acquaintance of their, the uncle of a man that the murderer suspected was having a romantic relationship with his ex-wife. The offender had also already been reported to the competent authorities for domestic violence.

The Helsinki Committee considers the above-mentioned examples to be a direct consequence of the inefficient systemic protection of women against gender-based violence. The state has the goal of providing timely information, shelter and assistance to the victims of domestic violence in order to prevent the occurrence of femicide, as well as conduct risk assessment of the victim’s situation. In addition, in cases of femicide it is necessary for the state to conduct detailed investigation into the circumstances of the case in order to establish the guilt of the offender, as well as all the other involved parties who have failed to provide adequate protection and correspondingly punish them for neglect. These obligations for the state are stipulated in the Istanbul Convention on preventing and combating violence against women and domestic violence which has been signed by the Republic of Macedonia, but has not yet been ratified.

Recommendation:

Due to the obvious inefficiency of the institutional protection of women as victims of violence and the increase in the number of gender-based murders, the Helsinki Committee believes that it is necessary for the country to ratify the Istanbul Convention and implement the obligations arising from it without any further delay.

CASE – PRESCHOOL DAYCARE INACCESSIBLE TO A CHILD WITH MILD INTELLECTUAL DISABILITY

A parent of a 4-year old child with intellectual disability addressed the Helsinki Committee with a request for legal aid due to the inaccessibility of preschool education – daycare for the child. In this specific case a hyperactive child with mild intellectual disability and speech problems is in question. According to the opinion of the Mental Health Institute – Skopje, the child needs to start with speech therapy and special education and needs to be included in a regular pre-school daycare center.

The child attended pre-school until April 2015, yet due to the pressures of the employees, the inadequate care and lack of human resources trained for work with children with intellectual disability, the parents were forced to stop taking their child to daycare and try to find a daycare facility (public or private), which would have the physical facilities and human resources to accommodate children with mild intellectual disability. Since then, the parents have made several attempts to include the child in both a private or a public daycare facility, yet all of the attempts were unsuccessful.

Bearing in mind these reports, as well as the historic discrimination of people with intellectual disability and their marginalization in society, the Helsinki Committee conducted situation testing by making phone calls in order to investigate the potential discrimination on the part of daycare facilities towards children with mild intellectual disability. One of the goals of the testing was to determine whether the poor physical facilities and lack of human resources in daycare centers affect the access to preschool education when it comes to children with intellectual disability. A total of 70 preschool daycare centers were tested, 56 of which were public ones, and 14 were private. Based on all the collected data, it may be established that there are neither physical capacities nor human resources in the daycare centers suitable for care and education of all kinds of preschoolers who need to attend them.

This is a systemic deficiency which particularly affects children with intellectual disability and limits or may limit their right to access to daycare. The problem arises from the fact that Article 64 of the Law on Protection of Children stipulates that regular groups may accommodate up to one child with mild intellectual or physical disabilities, in which case the number of other children in the group would decrease by two. Moreover, this provision is rarely complied with, since most of the preschool daycare centers, especially those in the municipalities under the City of Skopje, already accommodate more children in the groups than the prescribed standards in order to meet the demand and have as many children as possible provided with daycare and included in the educational process. Hence, we reach a conclusion that the poor physical capacities and human resources of the preschool daycare centers lead to unequal treatment of children with intellectual disability as opposed to children with no disabilities when it comes to equal access to childcare. In addition, this research revealed several cases which raised suspicions of direct discrimination against children with mild intellectual disability, which is why on 15.12.2014, the Helsinki Committee submitted a motion to the Commission for Protection against Discrimination, to which we have not received an answer yet.

Recommendation:

The Helsinki Committee believes that it is necessary to provide conditions for uninterrupted access of children with mild intellectual disability to preschool childcare and respect the constitutional and legal provisions guaranteeing equality to all citizens. In particular, Article 64 from the Law on Protection of Children needs to be complied with, the goal of which is to alleviate the access to childcare to children with mild intellectual disability and guarantee proper care for these children in order to facilitate their integration in all of the social processes.

CASE – DISCRIMINATION AGAINST ROMA ON THE BORDER CROSSINGS IN THE REPUBLIC OF MACEDONIA – RECOMMENDATIONS FOR OVERCOMING THIS DISCRIMINATORY PRACTICE

On 10.14.2015 the OSCE Mission to Skopje, the Ombudsman and the Helsinki Committee for Human Rights of the Republic of Macedonia, organized a conference on the subject of “Limiting the right to freedom of movement of Roma at border crossings,” in order to provide recommendations and activities towards overcoming of this discriminatory practice.

The participants welcomed the initiative to organize a conference on this subject and actively participated in the discussion which resulted with the following recommendations: 1. Discontinuing the practice of systemic discrimination on grounds of ethnicity and racial profiling of Roma at border crossings, regardless of the personal biases and stereotypes of the public officers. In this sense, racial profiling is interpreted in accordance with the General Recommendation No. 11 of the European Commission against Racism and Intolerance of the Council of Europe and shall mean “The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities” 2. Alignment of the national migration policies with international standards, in particular with the jurisprudence of the European Court of Human Rights. 3. Enhancement of the normative standards in order to create legal grounds for the adoption of a well-grounded written decision on the illicit exit from the country which would provide legal certainty and further protection of the rights of citizens through the right to appeal. 4. Provision of effective investigation in cases of alleged racial discrimination and racially-motivated unlawful behavior of the police by the Sector for Internal Control and Professional Standards at the Ministry of Interior and the Public Prosecution. 5. Creating legal conditions for achieving effective access to justice for victims of discrimination by providing them with free legal assistance and operational support by the state. 6. The Assembly, through its relevant committees and expert services, to be actively involved in examining the issue of discrimination against Roma at border crossings by organizing public hearings, establishing an Inquiry Committee and reviewing the issue before the Committee on Interethnic Relations. 7. Amending the Law on Police in order to provide visible, compulsory identification of any authorized public officer. 8. Provision of legal requirements which would prevent arbitrary limitation of the right to asylum by the state and which would prevent third parties from deciding and telling authorized officers whether someone is entitled to the status of an asylum seeker or not. 9. The Ministry of Internal Affairs, through its Sector for Internal Control and Professional Standards Unit to take action towards strengthening the capacity and competence of the officers working in border control regarding the principles of non-discrimination and racial profiling by offering them educational content and workshops systemized in an Action Plan. 10. The Ministry of Interior to conduct research on racial profiling and monitor police activities in order to identify racial profiling practices, including the collection of data disseminated on discriminatory grounds regarding relevant police activities. 11. Changes in the public discourse created by several national media outlets which create a distorted picture of the Roma as a potential danger for the abolition of the visa regime in the country. In this regard, the Ministry of Interior to start preparing and distributing informative materials about the rights and obligations of the persons crossing the border, the documents required for exit, and protection mechanisms in case of violation of rights by the authorized public officers at border crossings. 12. Finally, it is recommended that all competent authorities and institutions and other entities that can contribute towards overcoming of the situation with racial profiling of Roma at the country’s border crossings to show initiative, commitment and cooperation towards the implementation of these recommendations.

CASE – DRAGE NIKOLOVSKI

The Helsinki Committee for Human Rights of the Republic of Macedonia received a request for free legal aid by Drage Nikolovski, a person who is unable to exercise the right to disability pension insurance and the right to financial compensation for assistance and care from another person.

The documents he submitted certify that the person has undergone permanent changes in his health which cannot be improved by medical treatment and that his working capacity has been permanently reduced by more than half compared to a physically and mentally healthy insured person. He lives in substandard conditions in his house, alone, without any of the members of his immediate family since they have all passed. His only source of existence is the social assistance income that he is entitled to and which amounts to 1,200.00 MKD a month. His request for disability pension insurance was rejected by the Pension and Disability Insurance, for failure to fulfill the condition for necessary years of service.

According to the findings of the client, the years of service missing in the calculation of the Fund for Pension and Disability Insurance are the years between 2002-2009, when Drage Nikolovski was insured as a disabled person in a special company employing persons with disabilities, in accordance with the Law on Employment of Disabled Persons, whereby the employment of a person with disabilities exempted the company from payment of personal income tax and payments of salary allowances for that person, since these funds were provided from the Budget of the Republic of Macedonia.

Drage Nikolovski appealed against the first instance decision, but the appellate body rejected the appeal as ungrounded with the explanation that it did not meet the requirement for years of service amounting to 1/3 of the average years of service, as his contributions for pension and disability insurance for the period from 28.02.2002 to 01.10.2009 had not been paid. This decision was made despite the fact that during this period of time Nikolovski was employed as a disabled person, meaning that the costs for contributions were to be provided by the State Budget, and that he neatly submitted the documents proving this as evidence. Upon the rejection of the appeal by the appellate authority, Nikolovski  proceeded to initiate an administrative dispute at the Administrative Court in Skopje, where the plaintiff’s claim was upheld and the case was sent back for re-consideration and rewvire by the administrative authorities.

Furthermore, his attempts to exercise the right to financial compensation for assistance and care from another person have also been futile, since a decision from the Ministry of Labour and Social Policy stated that based on the Findings, Assessment and Opinion on deciding on the complaints submitted against the first-instance Decision, it was established that the person did not need assistance and care from another person, as he was able to take care of his basic needs himself.

Due to the major failure on the part of the institutions in representing and fulfilling the rights of one Drage Nikolovski, the Helsinki Committee of Human Rights has submitted letters to the PI Intermunicipal Social Work Center of the town of Kumanovo and the Pension and Disability Insurance Fund proposing reconsideration of the case and deciding in favor of the client. Furthermore, it will also undertake all future actions which might be necessary to solve this case.

Recommendation:

The Helsinki Committee recommends that this case be urgently solved in such a way that it would make it possible for Drage Nikolovski to exercise his right to disability pension insurance, guaranteed with Article 35 from the Constitution which states that the Republic of Macedonia provides social protection and social security for its citizens in accordance with the principle of social justice and guarantees the right to assistance for the infirm or unfit for work, providing special protection of disabled persons, as well as conditions for their inclusion into social life.

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* Official Gazette of the Republic of Macedonia 15/2005 (consolidated text)