Communicated on 13 February 2014
FIRST SECTION
Application no. 24058/13
Esat ASLLANI
against the former Yugoslav Republic of Macedonia
lodged on 20 March 2013
STATEMENT OF FACTS
The applicant, Mr Esat Asllani, is a Macedonian national, who was born in 1962 and lives in Ohrid.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant was employed in a local company owned by Mr Z.C. from Kosovo[1], which operated a bakery in Resen. On 20 March 2008, at 9.30 p.m., five police officers arrived at the bakery looking for illegal workers from Kosovo. Mr G.S., a high-ranking police officer in Resen at the time, who arrived later at the scene, allegedly slapped, threatened and insulted Mr Z.C. At about 1 a.m. on 21 March 2008 Mr Z.C. called the applicant to bring some documents. After he had arrived, six individuals from Kosovo suspected to have been unlawfully employed in the bakery, Mr Z.C. and the applicant were taken to Resen police station for questioning.
As stated by the applicant, during the questioning, which lasted about two hours, Mr G.S. insulted and threatened him with the words “I will beat you to death if you don't confess that you gave money to Inspector T. in order to protect your company (ќе те скршам од тепање ако не ми кажеш дека му даваш пари на испекторот Т. за да ти ја заштитува фирмата)”. At about 4 a.m. Mr G.S. found in the applicant's bag a newspaper (in the Albanian language) showing the flag of Kosovo. Mr G.S. tried to stuff the newspaper into the applicant's mouth. Since the applicant resisted, Mr G.S. punched him three times in the face, causing the applicant to faint. The applicant was released at 4.30 a.m.
The applicant went to Ohrid Hospital, which issued a medical certificate, signed by Dr L.D.B., according to which:
“[The applicant was] admitted on 21 March 2008 at 5.30 a.m. as an urgent case. It concerned a fight. The nose pyramid and the ... right upper nostril were visibly swollen. Assuming that the nasal septum was fractured, an X-ray was taken of the nasal pyramid ... The radiologist's findings are: no traumatic modifications of the nasal bone. So, the obstruction of the right nasal cavity was caused by swelling. The nasal septum has been repositioned to the left and a double front immobilisation [was made] ...”
On 27 and 28 March 2008 the applicant was further examined in Ohrid Hospital.
As established in the course of the criminal proceedings instituted by the applicant (see below), on 2 April 2008 he was examined in Skopje Hospital and diagnosed as suffering from facial bruising, as well as a fractured nose. It appears that during those proceedings, an examination was carried out by a forensic expert, who confirmed, on the basis of an X-ray, that the applicant had sustained a fractured nose without any displacement of bone fragments. This amounted to a bodily injury and was a result of the use of brute force. It appears that this report was drawn up on 28 January 2009 by Dr Z.K.
On 15 July 2008 the applicant was examined by Dr N.S. from Skopje Hospital, who issued a medical certificate stating that the applicant had been diagnosed as suffering from “contusion faciei cum haematoma faciei. F-ra ossis nasi”. A computer scan of 25 September 2008 confirmed that he had sustained a nasal fracture without bone displacement.
On 24 March 2008 the applicant and Mr Z.C. reported the incident to the Department for Control and Professional Standards within the Ministry of the Interior (“the DCPS”) and sought an internal inquiry. On 25 March 2008 they both reported the incidents of 20-21 March 2008 to the Ombudsman.
On 17 June 2008 the DCPS drew up a “special report” in which it confirmed the events that had taken place in the bakery (namely, that Mr G.S. had used force and offensive language against Mr Z.C.) and in the police station (namely, that Mr G.S., in the presence of two police officers, had tried to stuff a newspaper into the applicant's mouth and had punched him three times in the face), as alleged by the applicant and Mr Z.C. The report stated that Mr G.S. and the police officers who had participated in the events had denied that any force had been used against the applicant and Mr Z.C. The report was communicated to the Resen prosecutor's office.
2. Criminal proceedings against Mr G.S.
At the request of the public prosecutor, on 30 October 2008 an investigating judge of the Resen Court of First Instance (“the trial court”) opened an investigation into the allegations against Mr G.S. On 2 March 2009 the investigation was closed and the applicant was advised that he could pursue the prosecution as a private prosecutor. The applicant availed himself of that opportunity and instituted private criminal proceedings against Mr G.S. on charges of ill-treatment and bodily injury.
On 1 December 2008 Mr Z.C. gave a statement before the investigating judge in which he confirmed the presence of police officers and Mr G.S. at the bakery on the critical date, as well as that the applicant, the workers from Kosovo and himself had been summoned to Resen police station for questioning. He denied, however, that Mr G.S. had used any force or offensive language against him. He also denied that Mr G.S. had used any force against the applicant, claiming that the whole story had been invented by the applicant in order to obtain compensation from the State.
On 15 May 2009 the trial court accepted an objection by the defendant and discontinued the proceedings. On 3 November 2009 that decision was quashed by the Bitola Court of Appeal. On 1 December 2009 the trial court ordered that the investigating judge further investigate the applicant's allegations. It instructed him to confront the applicant with the defendant and police officers who had participated in the events at the bakery on 20 March 2008, as well as with Mr Z.C. It also instructed him to investigate the allegations that had meanwhile been raised that the applicant's injuries related to a traffic accident of 2 October 2007. On 21 April 2010 the trial court dismissed an objection raised by the defendant against the private criminal charges brought by the applicant.
On an unspecified date, all the judges in the trial court, including the president of that court, were excluded from the case. By a decision of 1 June 2010, the Bitola Court of Appeal assigned the case to the Bitola Court of First Instance, as the court competent ratione loci.
On 1 February 2011 the Bitola Court of First Instance acquitted Mr G.S. for lack of evidence. Its judgment was based on documentary and oral evidence, including evidence produced by the applicant and by two bakery workers and four police officers who had witnessed the events in the bakery and in the police station respectively. The court also admitted in evidence the written statement of Mr Z.C. given in the pre-trial proceedings. In this connection, the court noted that it could not secure Mr Z.C.'s attendance at the trial because his whereabouts were unknown. The court established that the defendant and several police officers had arrived at the bakery to follow up allegations that illegal workers from Kosovo were employed there. Furthermore, both Mr Z.C. and the applicant had been questioned at the police station. However, it found that none of the witnesses examined had corroborated the applicant's allegations of ill-treatment.
On 19 May 2011 the Bitola Court of Appeal accepted an appeal lodged by the applicant and remitted the case for fresh examination. The court held that the first-instance court had not established the relevant facts regarding the applicant's injuries, which had been supported by relevant medical evidence. The first-instance court had not given any reasons regarding the origin of those injuries, despite the fact that investigative measures had been taken with a view to establishing whether they had been caused as a result of a car accident on 2 October 2007. In this connection, it instructed the lower court to reassess the available evidence and, if need be, to confront the applicant with the witnesses. The lower court was further advised to analyse the available medical evidence in connection with the time of the critical events and the time when the applicant had sought medical assistance.
On 8 December 2011 Mr Z.C. gave a written statement before the Prizren (Kosovo) Court of First Instance in which he stated that his testimony of 1 December 2008 (see above) had been incorrect and given under duress. He confirmed that the applicant had been hit by Mr G.S. in the police station, in the presence of two police officers, as a result of which he had sustained a nasal fracture. He confirmed the statement that he had given before the DCPS and the Ombudsman. He refused to provide oral evidence before the first-instance court because he feared for his personal safety. However, he agreed to testify before the Prizren Court, the EULEX (EU Rule of Law Mission to Kosovo) or the Macedonian Embassy in Pristina. At the trial, the applicant alleged that Mr Z.C. had told him that he had agreed to produce evidence before the Skopje or Kumanovo courts.
On 30 October 2012 the Bitola Court of First Instance again acquitted the defendant, finding no evidence in support of the applicant's allegations. That judgment was given after the court had examined the defendant, Dr L.D.B. and Dr Z.K., two employees who had been present in the bakery at the relevant time and the police officers who were present when the applicant was questioned in the police station. The court stated that it had given weight to the evidence produced by all the witnesses, especially given that most of them were police officers and Dr Z.K. was an experienced court expert.
On 24 January 2013 the Bitola Court of Appeal quashed that judgment and remitted the case for a fresh examination, which, as noted in the judgment, was to be held before a different composition of the adjudicating panel of the first-instance court. The court found that the lower court again had not established the facts regarding the applicant's injuries. The available medical evidence confirmed that the applicant's injuries described in the medical reports issued soon after the alleged incident of 21 March 2008 had not resulted from the car accident of October 2007. The first-instance court had merely referred to the witnesses' statements, without having assessed their probative value in connection with the medical evidence. It had given no weight to the medical evidence, which should have been analysed in relation to the time when the applicant had sought medical assistance. The court instructed the lower court to reassess the evidence, organise a confrontation between the applicant and the defendant, and take other measures in order to establish the origin of the applicant's injuries.
The proceedings are apparently pending before the Bitola Court of First Instance. According to the applicant, a hearing was scheduled for December 2013.
3. Length proceedings before the Supreme Court concerning the criminal proceedings against Mr G.S.
On 17 October 2012 the applicant lodged a length remedy before the Supreme Court he complained that the criminal proceedings against Mr G.S. had been excessively lengthy. No decision has yet been given.
COMPLAINTS
Without referring to any Article of the Convention, the applicant complains that he was beaten by a police officer and that the domestic courts have not yet decided his allegations, despite the fact that over five years have elapsed since the incident complained of.
QUESTIONS TO THE PARTIES
1. Has the applicant, in the alleged incident of 21 March 2008 in the police station in Resen, been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
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