Strasbourg Court to Rule on FYROM Roma Torture Case for the First Time in its History

 

Strasbourg Court to Rule on SlavoMacedonian Roma Torture Case for the First Time in its History

Budapest, Skopje, 11 May 2006. In a decision communicated last week, the
European Court of Human Rights has declared admissible the application of
Mr. Pejrusan Jasar against Macedonia.

On 16 April 1998, Mr. Pejrusan Jasar, a Romani man from Stip, Macedonia,
was in a local bar where gambling took place. One of the losing gamblers
complained that the dice were fixed, drew a firearm, and fired several
gunshots. Several police officers were called to the bar. Mr. Jasar
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.
Medical protocols provided immediately after Mr. Jasar was released from
police custody the following 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
together with the European Roma Rights Centre (ERRC), filed a criminal
complaint with the public prosecutor against an unidentified police
officer. In the more than eight years intervening, no steps have ever been
taken to investigate the complaint. Mr. Jasar also brought civil
proceedings for damages against the Macedonian State. These were dismissed
in October 1999.

Having exhausted available domestic remedies, the ERRC and Mr. Madzunarov
filed a claim at the European Court of Human Rights on behalf of Mr. Jasar
against Macedonia on 1 February 2001. Mr. Jasar and his advocates
complained that he had been subjected to acts of police brutality amounting
to torture, inhuman and/or degrading treatment, as banned under Convention
Article 3. Furthermore, it was argued that the fact that prosecuting
authorities’ failed 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 the
same article. It was further noted that Mr. Jasar’s lack of access to an
effective remedy with respect to the authorities’ failure to investigate
his allegations of ill-treatment violated Article 13 of the Convention read
in conjunction with Article 3.

In challenging Mr. Jasar’s claims, the Macedonian Government submitted that
he had not exhausted domestic remedies pursued all possibilities for
justice in Macedonia — in respect of his complaints of ill treatment. The
Government therefore argued that the application should be ruled
inadmissible. In the Government’s view, Mr. Jasar should have complained to
the officer in charge of the station or to the Sector for Internal Control
within the Ministry of Interior, such that disciplinary proceedings could
have been instituted against the police officers responsible. The
Government also took issue with the fact that Mr. Jasar did not initiate
administrative proceedings challenging the actions of the police before the
Supreme Court. He also failed to bring the alleged police brutality to the
attention of the Ombudsman, the Government argued.

In deciding on whether to hear the case, the Court reiterated that for the
purposes of reviewing whether Mr. Jasar had in fact pursued all available
opportunities for legal remedy in Macedonia, it is essential to have regard
to the circumstances of the individual case. The Court held, “This means,
in particular, that the Court must take realistic account not only of the
existence of formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as well as
the personal circumstances of the applicant. It must then examine whether,
in all the circumstances of the case, the applicant did everything that
could reasonably be expected of him or her to exhaust domestic remedies.”

The Court accepted Mr. Jasar’s arguments and noted that the possibility of
initiating a disciplinary or internal inquiry into alleged ill-treatment
cannot generally be regarded as an effective remedy in this context as
these bodies lack the necessary independence. In the Court’s view, Mr.
Jasar could have not availed himself of the possibility of bringing an
administrative dispute before the Supreme Court for ill-treatment, as this
is only possible under Macedonian domestic law when the victim has no
alternative court remedy at his disposal. The Court held that the Ombudsman
also cannot be considered an effective remedy, as this body is not
empowered to address binding decisions to the Government, but rather may
only formulate recommendations.

In the view of the Court, by filing a criminal complaint and civil action
to obtain damages, Mr. Jasar “brought the alleged police brutality to the
attention of the authorities, placing them under a duty to carry out an
appropriate investigation, and instituted a court procedure able to
establish the facts, attribute responsibility and award monetary redress.
In the normal course of events this would be regarded as fulfilling the
requirements of […] the Convention in respect of his complaints under
Article 3 and it would not be necessary to institute any other procedures.”
The Strasbourg Court also accepted ERRC’s argumentation that as no official
effective investigation into the victim’s allegations had been carried out,
he had been suffering a continuing violation of the Convention’s provisions.

Decision on the merits of the case is pending.

For further information on the case, please contact ERRC Staff Attorney
Anita Danka: [email protected], +36-1-413-2221.

The ERRC’s work in Macedonia is currently supported by funding from the
European Union’s CARDS program, as well as funding from the Swedish
International Development Cooperation Agency (SIDA).

_____________________________________________

The European Roma Rights Centre is an international public interest law
organisation which monitors the rights of Roma and provides legal defence
in cases of human rights abuse. For more information about the European
Roma Rights Centre, visit the ERRC on the web at http://www.errc.org.

European Roma Rights Centre
1386 Budapest 62
P.O. Box 906/93
Hungary

Phone: +36 1 4132200
Fax: +36 1 4132201

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