MINELRES: ERRC: Strasbourg Court to Rule on Macedonian Roma Torture Case for the First Time in its History

minelres@lists.microlink.lv minelres@lists.microlink.lv
Tue May 23 06:30:11 2006


Original sender: European Roma Rights Centre <errc@errc.org>


Strasbourg Court to Rule on Macedonian 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: anita.danka@errc.org, +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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