Monthly report on Human rights – May, 2017

The monthly report on the human rights situation in the Republic of Macedonia for May, 2017 covers topics from the following areas: Special Public Prosecutor`s Office, Judiciary, Discrimination, Domestic Violence  and Textile Workers.

SPECIAL PUBLIC PROSECUTOR’S OFFICE

THE SUPREME COURT OVERRULES THE DECISIONS FOR DETENTION IN SPO`S “TRUST” CASE

On March 27th, the Public Prosecutor’s Office of the Republic of Macedonia submitted a request to the Supreme Court for protection of legality regarding the detention of businessman Sead Kocan, a suspect in the “Trust” case, which is under the jurisdiction of the SPO (Special Public Prosecutor’s Office). The Public Prosecutor’s Office of RM requested the Supreme Court to overrule the decisions of the Criminal Council of the Primary Court Skopje I of March 7th, 2017 and the Appellate Court Skopje of March 15th, 2017 and to re-open the case. On May 11th, 2017, the Supreme Court decided in accordance with the proposal of the Public Prosecutor’s Office of RM, after which the case was returned for retrial before a new criminal council in the Primary Court Skopje I.

Pursuant to Article 5, paragraph 3 of the Law on Special Public Prosecutor’s Office, the Special Prosecutor Katica Janeva is authorized to undertake actions and to represent cases before the primary courts, appellate courts and the Supreme Court of the Republic of Macedonia. Paragraph 4 of Article 5 of the Law further specifies the exclusive competence of Prosecutor Janeva for initiating prosecution actions. The public prosecutor who manages the SPO has full competence and authority to independently perform all the investigative and prosecution functions of the Public Prosecutor’s Office which include involvement in court proceedings and initiating any kind of court proceeding, including civil and criminal if the prosecutor considers it necessary. Additionally, the same paragraph of the Law on the SPO stipulates that this Office has the authority to handle all aspects of their cases.

The legal rule expressed in the Latin maxim lex specialis derogat legi generali provides that in circumstances where there is a legal act regulating a specific topic (the Law on SPO and wiretapped conversations) in the legal system, it replaces the law regulating the general topic (Law on Criminal Procedure). In this particular case, the Supreme Court, acting on the request of the Public Prosecutor’s Office of the Republic of Macedonia and referring to the Law on Criminal Procedure for deciding on a Request for the Protection of Legality, adopted an unlawful decision and opened a precedent that is contrary to the principle of the rule of law.

In addition, the Supreme Court’s finding that there was insufficient evidence for suspicion as a general condition of detention is a factual matter that this court could not decide upon in an emergency remedy procedure, because the same neither provided nor could examine the evidence presented before competent courts, before which a contradictory hearing was held and a meritorious decision was adopted. On the other hand, this is the first time that any court in the Republic of Macedonia decides that the person in detention should be released until a decision on an appeal is made. Since it is known that the Council of the Supreme Court with participation of (former/current) President Jovo Vangelovski dismissed Judge Jordan Mitrinovski several years ago because since he found that instead of being detained, it was enough to determine house arrest with a guarantee, we are not very convinced that the Supreme Court and the Republic Public Prosecutor’s Office, suddenly and overnight, became proponents of liberalism who fight for the rights of the suspects.

On the contrary, the actions of the Supreme Court raise serious suspicion of political influences on the adoption of the unlawful decision arising from the relocation of judges at the Supreme Court and the Primary Court Skopje I, immediately before the adoption of the decisions, i.e, during the entire procedure, which should now be repeated. We’d like to point out that, due to proposals for dismissal of judges submitted by the President of the Supreme Court, Jovo Vangelovski, in his previous term (2008-2012) and his voting for accepting such proposals, the state lost two cases before the European Court of Human Rights. Namely, in the Mitrinovski v. Macedonia of 2015 case and Popcevska-Gerovska v. Macedonia case of 2016, the Court in Strasbourg declared the entire Judicial Council as dependent and biased because it accepted the President of the Supreme Court to be both a proposer and a voter in a procedure for dismissal of judges.

RECOMMENDATION:

The Public Prosecutor’s Office of the Republic of Macedonia and the Supreme Court of the Republic of Macedonia must cease their involvement in the autonomy and the real competence of the Special Public Prosecutor’s Office.

SPO OPENS THREE NEW INVESTIGATIONS

At the press conference, the Special Public Prosecutor’s Office announced three new investigations: “Trevnik”, “Traektorija” and “Talir”. The Special Public Prosecutor Katica Janeva stated that it concerns with two financial investigations, and a third one which involves illegal construction.

The “Trevnik” investigation was opened by the Prosecutor’s Office on the basis of the information in the unpublished wiretapped conversations which caused a reasonable suspicion of three people’s criminal actions for the construction of three weekend houses in the Municipality of Zelenikovo, without having the right to such construction, or building without building permits. According to the collected evidence, including satellite images and their expert analysis, as well as other documentation, the construction process of these three weekend-houses began in 2011, and a building permit from the municipality was obtained in 2013 ‒ after they were finished. The Law on Construction provides for a reverse order, that is, firstly, the effective building permit is obtained, and then, construction shall begin, and outside that order, such unlawful actions are punishable with the appropriate measure for the criminal act ‒ illegal construction from Article 244, paragraph 1 of the Criminal Code, which is the basis for the opening of this investigation.

The “Traektorija” investigation was opened against four officials ‒ former senior government officials, for whom there is a reasonable doubt that in the second half of 2012 and during 2013, they undertook several actions with which, in the procedure for selecting a company contractor for construction of Miladinovci-Stip and Kicevo-Ohrid highways sections, abused and exceeded their authorizations which cost the Budget of the Republic of Macedonia at least 155,117,172.00 euros, and for the same amount, the company-contractor was allowed to acquire a property benefit.

The “Talir” investigation is the last one presented that concerns illegal financing of the political party VMRO-DPMNE. According to the SPO, there is reasonable suspicion that despite the fact that the first suspected as the president of the political party was well aware of the legal restrictions, in the period from 2009 to the end of 2015, he enabled the party’s funding which was contrary to the legal provisions, whereby the motives for the actions of the first suspect were strictly personal and served to strengthen his political power in the party and the state, as well as to secure complete control over the political party. During the said period of time, the prosecution claims that 4,900,000 euros were illegally spent for the party. In the presentation of the investigation, the prosecution pointed out that they possess material evidence in the form of 12,000 bank transactions and over 260 witness statements.

Furthermore, SPO stated that there is reasonable doubt that this was not the only way in which the party had been illegally funded. They pointed out that there is a reasonable doubt that the first suspect, as a responsible person, contrary to the legal restrictions stipulated by the Law on Financing of Political Parties, enabled the legal entity DG “Beton” JSC, Skopje to provide services for the political party VMRO-DPMNE. The legal entity DG “Beton” JSC, Skopje was under a contract for awarding public procurement during the time of providing services for the political party.

Regarding the “Talir” case, the Criminal Court did not accept any request by the Special Public Prosecutor’s Office (SPO) to freeze VMRO-DPMNE’s property, as the court’s statement said. All 12 requests for the freezing of the property were rejected, including the one for the party’s headquarters. According to SPO pre-trial procedure, the suspects of the party’s leadership accepted illegal funding in the amount of 4.9 million euros. These funds, instead of being returned to the budget in accordance with the law, were used for illegal funding for the party. Judges in the pre-trial procedure initially disagreed on the proposal for freezing the property, and later, judges from the criminal councils from the Department of Organized Crime and Corruption confirmed the disagreement on the proposal. SPO corrected a part of the Criminal Court’s indications and, once again, requested freezing of VMRO-DPMNE’s property, as stated in SPO report. This time, the prosecution demanded to freeze one particular piece of property ‒ the party’s headquarters. For the second time, the criminal court refused to freeze the party’s seven-floor building in the city center. The three judges, Goran Bosevski, Verka Petkovska and Lenka Davitkovska, decided that there was no evidence or elements of a criminal act that the party’s headquarters was built illegally. The SPO has no right to appeal to these decisions.

RECOMMENDATION:

Having in mind the effectiveness of the investigation and the substantial amount of presented evidence supporting the request for an interim measure ‒ a restraint on alienation of real estate, there should be no hesitation on part of the Criminal Court for accepting such a request. It is of crucial importance to the procedure, especially because the purpose of such an interim measure arising from the evidence of the investigation is the probability that, by the end of the criminal procedure, it will be particularly difficult or even impossible to take away the property or the objects.

JUDICIARY

UNREASONABLE DURATION OF DETENTION PERIOD FOR THE JOURNALIST ZORAN BOZINOVSKI

On May 5, 2017, representatives of the Association of Journalists of Macedonia and the Helsinki Committee visited the journalist Zoran Bozinovski at the detention unit of the Skopje Prison. He is charged with allegedly committing three crimes (criminal association, espionage and blackmail). Up to date, the monitoring of the case shows that, even though several court hearings have been scheduled, most of them were postponed because of the Court’s activities (relocation of a judge, failure to provide witnesses, failure to bring the journalist to Court, etc.). There is still no evidence that the journalist Bozhinovski is a member of a criminal group and that he had the intention to create such a group, or that he had contacted a foreign intelligence service with which he shared state secrets.

It is inconceivable that a journalist should be kept in detention for two and a half years ‒ an 18-month detention in Serbia and a 13-month detention in Macedonia.

RECOMMENDATION:

We expect immediate revocation of the detention and that the journalist Bozinovski be unconditionally released pending trial.

DISCRIMINATION

DISCRIMINATION ON MULTIPLE GROUNDS IDENTIFIED IN EMPLOYMENT ADVERTISEMENT

On 19.05.2017, the Commission for Protection against Discrimination identified the existence of discrimination on multiple bases, i.e. discrimination on more than one basis. It involves an employment advertisement posted on 23.03.2017, on the kariera.mk webpage by the “Glam” hotel in Skopje, looking for a “female person at 30 to 45 years of age, for work in a kitchen ‒ serving breakfast (buffet)”. The Helsinki Committee filed a complaint with the Commission for Protection against Discrimination regarding this advertisement. The Commission, acting on the complaint on the particular case, found direct discrimination on multiple bases because the advertisement denies access to the workplace for men, which represents direct discrimination on the basis of gender. At the same time, the position denies female applicants younger than 30 and older than 45 years of age, which represents direct discrimination on the basis of age. In deciding upon the complaint, the Commission for Protection against Discrimination did not contact the legal entity against which the complaint had been filed since the advertisement itself is sufficient proof of discrimination, and due to the nature of the job position described in the advertisement, there are no specific discrimination exceptions that could be applied, i.e. the advertisement’s discriminatory content cannot be justified in any way as the given job description does not require restriction on the basis of age or gender. In its opinion, the Commission recommends that the “Glam” hotel withdraws the posted advertisement and re-post it without the restrictions based on gender and age.

RECOMMENDATION:

Considering the fact that many employment advertisements contain restrictive and discriminatory content, the Helsinki Committee applauds the opinion issued by the Commission for Protection against Discrimination and believes that it should be an encouragement for all of those who feel they have been discriminated against in their attempt to find employment and to report those cases in the future. Additionally, we urge the Commission for Protection against Discrimination to continue working in this direction and to equally protect all citizens in terms of access to employment, which is in the Commission’s framework of competences.

DOMESTIC VIOLENCE

PRIMARY COURT IN VINICA PUTS CHILDREN IN THE CUSTODY OF A PERSON WITH HISTORY OF VIOLENCE

In the two-month report for September-October 2016, The Helsinki Committee for Human Rights reported on the inadequate application of the Law on Prevention of and Protection from Domestic Violence by the Primary Court in Vinica which rejected a proposal for pronouncing temporary measures for protection against domestic violence, not considering the complete medical history for the victim’s injuries that was submitted along with the proposal, and which clearly indicates that the victim had been subjected to domestic violence.

This time, the same court, deciding on a divorce lawsuit filed by the abuser ‒ the husband of the victim of domestic violence ‒ and granting custody and upbringing of the minor children, decides to award the custody of the two minor children to the father. According to the Court, a decisive fact for such a decision was the children’s desire to stay with the father. With the adoption of such a decision, the Primary Court in Vinica disregards the fact that the same court has passed, while the Appellate Court in Stip has confirmed a verdict with which the father of children is found guilty of committing the criminal offense of “Bodily injury in domestic violence”, punishable according to Art. 130, paragraph 2 of the Criminal Code of the Republic of Macedonia. It is unclear and quite scandalous that, upon adopting such a decision, the Primary Court in Vinica disregards the opinion of the Center for Social Work in Vinica, according to which it is in the best interest of the children to be in the custody of their mother for the purpose of restoring the child-mother relationship. In the same opinion, the Center for Social Work in Vinica argues that the negative attitude of children towards the mother is a result of the father’s influence and their desire to be with the father is not independent and without pressure. In addition to the duration of the divorce procedure, the Center for Social Work in Vinica makes a decision with which the mother is granted realization of personal relationship and direct contact with her children twice a month in the premises of the city of Vinica. From the moment of the adoption of that decision until the decision by the Primary Court in Vinica was reached, the mother did not make any direct contact with the children because the father did not respect the obligations from the said decision. In other words, the Primary Court in Vinica did not take that fact into account when it adopted the decision to award the custody of the children to the father.

It is symptomatic that, in the procedure for issuing interim measure for protection from domestic violence (Case Number VPP-3/16) and the procedure for divorce and granting custody of minor children (Case Number P2 17/16), the same judge decided on both cases.

RECOMMENDATION:

The Helsinki Committee expresses concern about the continually inconsistent and incorrect application of the laws of the Primary Court in Vinica in the cases VPP2-3/16 and P2 17/16 and urges the court to consistently and accurately apply the legal provisions in the conduct of proceedings and material decision-making in the future.

TEXTILE WORKERS

THE INSPECTORATE AND THE EMPLOYERS WORK SIDE BY SIDE

In May, we received several complaints from a textile factory in Stip, which continuously and in many areas violated workers’ rights. According to the complaints, the employer does not pay to his employees for overtime, years of service and past work in accordance with the Labor Relations Law. Additionally, the complaints also referred to disregard of the occupational safety and health measures by the employer and failure to provide adequate sanitary and hygienic conditions in the factory and the production departments. For these reasons, the Helsinki Committee sent requests for extraordinary inspection supervision to the State Labor Inspectorate, the Sector for Inspection Supervision in the field of health and safety at the workplace and the Sector for Inspection Supervision in the field of labor, as well as the State Sanitary and Health Inspectorate. The aim was to investigate the allegations in the complaints and to eventually determine the violations of workers’ rights, the non-compliance with the measures for safety and health at the workplace and/or failure to provide adequate sanitary and hygienic conditions.

Report on the conducted extraordinary inspection was received only by the State Labor Inspectorate. Regarding the allegations of unpaid compensation for overtime work and years of service, the inspectorate found that the employer issues written calculations of the paid salary, contributions, and allowances. The Inspectorate concluded that the employer paid for overtime work, night work and years of service. Also, for any introduction of overtime, the employer had previously notified the regional state labor inspector and the employer keeps an electronic log of full-time work and overtime, as stated in the Inspectorate’s conclusion. The Helsinki Committee received and reviewed the written calculations that the employer gives to the employees and, though it is true that the calculations include items for overtime, night work, work on a holiday and past work, all of them are in the value of 0.00, i.e. such payments do not exist. This is a proof that employees are not being paid because they did, in fact, do overtime in the specified period.

Regarding the allegations of non-compliance with the safety and health conditions at the workplace, the inspectorate informed us that the employer had all the required authorizations for the use of the chemicals in production and had conducted a risk assessment process at the workplace in accordance with the Law on Safety and Health at Work. The inspection revealed that all employees were provided with personal protective equipment in accordance with the Law and that the employer keeps records of all employees’ health status. On the basis of the performed inspection, the competent inspector issued a decision establishing that a risk assessment should be carried out, as well as an examination of the chemical, biological and physical hazards, brightness, humidity, and dust. He also stated the necessity for scheduling routine health check-ups for 11 employees and training courses for 11 employees. Pursuant to the Law on Inspection Supervision, Article 42 reads as follows: “If during the inspection, the inspector finds that the law or other regulation has been violated, he/she shall make an official record of the identified irregularities and determine the deadline in a decision for the elimination of those irregularities”. In the received notification of the conducted inspection supervision, it is not stated whether the competent inspector gave the employer any obligations or reprimands or whether he a deadline. It was only determined what should be done. By establishing a deadline in accordance with the Law, the Inspectorate, after the expiration of the deadline, conducts a re-inspection and determine whether the employer has fulfilled his/her obligations (Article 32 of the Law on Inspection Supervision). Thus, the Inspectorate violated the Law on Inspection Supervision and did not act in accordance with his responsibilities.

RECOMMENDATION:

The rights, obligations and powers of the State Labor Inspectorate are stipulated by the Law on Inspection Supervision and they must be respected. When performing supervision, the competent inspectorate must conduct the procedure in accordance with this Law, by making an official record and issuing a decision in case of the existence of violations and irregularities and establishing a deadline for their elimination. Any failure to comply with the Law is considered a liability and a basis for initiation of a disciplinary procedure against the inspector.