Strasbourg Court Finds Violation of Article 3 in the First Macedonian Roma Torture Case

18 June 2007

Anita Danka¹

In a judgment announced on 15 February 2007, the European Court of Human Rights ruled that Macedonia violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in connection with the ill-treatment by the police of Mr Pejrusan Jasar, a Macedonian national of Romani ethnic origin.

The Facts of the Case

On 16 April 1998, Mr Jasar, a Romani man from Stip, Macedonia, was in a local bar where gambling took place. Another patron, after losing, complained that the dice were fixed, drew a firearm and fired several gunshots. Several police officers were called to the bar. Mr Jasar, who happened to be in the bar at the time, maintains that police officers grabbed him by his hair and forcibly placed him in a police van. During his detention in police custody, he was kicked in the head, punched and beaten with a truncheon by a police officer. The medical report issued immediately after Mr Jasar was released the next morning stated that he had sustained numerous injuries to his head, hand and back. In May 1998, Mr Jasar, represented by local attorney Mr Jordan Madzunarov, in cooperation with the European Roma Rights Centre (ERRC), filed a criminal complaint with the public prosecutor against an unidentified police officer. More than eight years later, no steps were taken to investigate the complaint. At the same time, Mr Jasar also began civil proceedings for damages against the State, which were dismissed in October 1999.

The Arguments

Having exhausted available domestic remedies, the ERRC and Mr Madzunarov filed a claim on behalf of Mr Jasar against Macedonia on 1 February 2001 with the European Court of Human Rights. The applicant complained under Article 3 of the Convention that he had been subjected to acts of police brutality amounting to torture, inhuman and/or degrading treatment. Mr Jasar also argued that the prosecuting authority's failure to carry out any official investigation capable of leading to the identification and punishment of the police officers responsible for the ill-treatment constituted a procedural violation of Article 3. Finally, Mr Jasar argued that he did not have access to an effective remedy with respect to the prosecuting authority's failure to investigate his allegations of ill-treatment, in violation of Article 13 of the Convention, read in conjunction with Article 3.

The Decision

In its ruling, the Court recalled that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention", requires that there be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible.

The European Court emphasised that, "it is particularly striking that the public prosecutor did not undertake any investigative measures after receiving the criminal complaint." The Court also noted that "the national authorities took no steps to identify who was present when the applicant was apprehended or when his injuries were received, nor is there any indication that any witnesses, police officers concerned or the doctor, who had examined the applicant, were questioned about the applicant's injuries. Furthermore, the public prosecutor took no steps to find any evidence confirming or contradicting the account given by the applicant as to the alleged ill-treatment […]. In addition, the inactivity of the prosecutor prevented the applicant from taking over the investigation as a subsidiary complainant and denied him access to the subsequent proceedings before the court."

Having regard to the lack of any investigation into the allegations made by Mr Jasar that he had been ill-treated by the police while in custody, the Court held that Macedonia violated Article 3 of the Convention and awarded nonpecuniary damages to the victim.²

The problem of ill-treatment by law enforcement agencies and their subsequent impunity continues to prevail in Macedonia. As recently as November 2006, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stressed that if said state of affairs persists despite previous repeated CPT recommendations, the CPT would be obliged to consider making a public statement in accordance with Article 10 (2) of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

In its report, the CPT asserted:

"The integrity of the system of accountability for law enforcement officials in cases of alleged ill-treatment in ‘the former Yugoslav Republic of Macedonia' has been a principal focus of the CPT's attention – as well as a major source of concern – since the October 2001 visit. Repeated examinations of the issue by visiting delegations have clearly established that, even when detained persons do indicate to an investigating judge and/or a prosecutor that they have been ill-treated, there is no guarantee that any effective investigation will be set into motion. Further, as regards internal accountability procedures, the Committee concluded that there was considerable room for improvement in the manner in which police complaints were investigated. The CPT therefore made a number of recommendations aimed at combating impunity, and called upon the national authorities to implement them.

The written responses given by the national authorities concerning the issue of impunity have thus far been inadequate. It is evident that no effective follow-up action has been taken in respect of most of the specific cases set out in previous reports where the Committee had found that there had been a failure to carry out an effective investigation; at best, there have been certain acknowledgements that the situation is highly problematic.³

The European Roma Rights Centre has itself documented numerous cases in Macedonia in which police have arbitrarily arrested Roma, subjected Romani detainees to physical abuse, obtained statements under threat and denied access to legal counsel. Notwithstanding the frequency of reported police abuse, investigations are rare and the ERRC is unaware of a single case in which disciplinary or criminal sanctions have been imposed.⁴

This ruling is the first against Macedonia confirming abusive police action against Roma in the country and the lack of proper follow-up to complaints by the state investigatory authorities. In order to prevent further violations and to comply with the international human rights commitments of the State, the Macedonian government must take all measures within its power to ensure that acts such as the one in April 1998 do not occur in the future. This entails thorough legislative reforms ensuring that allegations of ill-treatment by the police trigger prompt and effective investigations, capable of leading to the identification and punishment of the perpetrators and the adoption of policies to avoid similar breaches.

Endnotes:

1. Anita Danka is an ERRC Staff Attorney. Ms Danka represented this case on behalf of the ERRC since February 2005.
2. The full decision can be found at: Decision.
3. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Report to the Government of the Former Yugoslav Republic of Macedonia on its country visit from 12 to 19 July 2004, CPT/Inf (2006) 36. par.17. The full report can be found at: Report.