DEARI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

Application no. 54415/09
Gajur DEARI and Others
against "the former Yugoslav Republic of Macedonia"

The European Court of Human Rights (First Section), sitting on 6 March 2012 as a Chamber composed of:

Nina Vajić, President,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 12 October 2009,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the fact that, on 1 February 2011, the Court changed the composition of its Sections (Rule 25 § 1) and this case was assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Gajur Deari (“the first applicant”), Mr Bedri Murtezanov (“the second applicant”) and Mr Asllan Sherifi (“the third applicant”), are Macedonian nationals who were born in 1952, 1952 and 1955 respectively and live in Golema Recica, Tetovo and Skopje. They were represented before the Court by Ms Nuala Mole, of the Aire Centre (Advice on Individual Rights in Europe, London). The Macedonian Government (“the Government”) were initially represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background of the case

3. The first applicant is the father of Mr Agron Deari (“Mr A.D.”) who was killed on 30 August 2002; the second applicant is the father of Mr Jakup Murtezanov (“Mr J.M.”); and the third applicant is the father of Mr Qahil Sherifi (“Mr Q.S.”). Mr J.M. and Mr Q.S. were killed on 7 September 2003.

4. The Government invited the Court to view the events giving rise to the applicants’ complaints in the light of the 2001 armed conflict between ethnic Albanians and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas several years after the conflict. In respect of Mr A.D.’s killing, particular attention was drawn to the incidents of 29 August 2002 on the Tetovo-Gostivar highway (“the highway”) in which armed civilians kidnapped eight persons, including two minor girls. In this connection the Government referred to a public announcement of 30 August 2002 in which the Ministry of the Interior (“the Ministry”) called for the inhabitants of neighbouring villages to remain, for security reasons, in their homes.

2. Events related to Mr A.D.’s death

5. At 3.30 a.m. on 30 August 2002 Mr A.D. was travelling in a car with foreign registration plates, together with J.I., when police officers from the special police force “Lions”, under the Ministry, stopped them on the highway. According to a report drawn up the same day by the Ministry, Mr A.D., in an attempt to flee the scene, resisted the security forces by pulling out a pistol. Firearms were used against him. He sustained several bodily injuries. Furthermore, two pistols were found in the car. The local police station was alerted immediately. Police officers arrived at the scene and took Mr A.D., who still held the pistol in his hand, to the local medical centre where his death was confirmed. J.I. was arrested on account of unlawful possession of firearms and released without charge. The names of the officers involved in his arrest were not recorded in any register of the Ministry.

6. On the same day the investigating judge, public prosecutor, police and representatives of the OSCE’s mission in the respondent State inspected the scene, but no useful evidence was found owing to heavy rainfall. In a written and duly signed statement given before the investigating judge, the first applicant requested that no autopsy or investigation be conducted in relation to his son’s death. In view of that request, the investigating judge ordered an external examination of Mr A.D.’s corpse and requested that an expert describe the injuries, the way in which they had been sustained, as well as to determine, if possible, the time and direct cause of Mr A.D.’s death. The expert report noted bruises to Mr A.D.’s head, face, chest and stomach and several penetrating gun-shot wounds to his leg, arms, chest and neck.

7. On 2 September 2002 the public prosecutor requested that the investigating judge take certain steps to investigate Mr A.D.’s death. The request referred to the on-site examination report of 30 August 2002, which was to be regarded as a criminal complaint.

8. On 5 September 2002 the Ministry questioned J.I. According to a report signed by a police officer, J.I. stated, inter alia:

“... we [with Mr A.D.] were stopped by the police. I showed them my ID and car registration document. The officers ordered me to step out of the car. A. [Mr A.D.] got out of the car as well. I was ordered to open the boot. ... During the search of the boot and the interior of the car, I heard an officer saying ‘I’ve found two guns’. After this statement, my hands were put behind my back and tied ... At one moment, they put my head in the boot. While my torso was in the boot I heard gunshots, after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio, saying that one of the persons concerned had been killed after he had fired a gun while attempting to flee ...”

9. On the same day, the Ministry submitted a criminal complaint against an unidentified perpetrator. Photo documentation of the scene and of Mr A.D.’s corpse, as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge.

10. On 22 November 2002 the Forensic Science Department (Управа за криминалистичка техника) at the Ministry sent the investigating judge an expert report concerning Mr A.D.’s pistol, which stated the following:

“... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr A.D. ... The reaction was negative, namely no nitrate residue was discovered. We emphasise that the samples were covered in blood, which significantly affected the analysis for nitrate residue... Since the clothes were abundantly covered in blood, we cannot determine the distance from which the gunshots were fired ...”

11. The first applicant alleged that on 27 September 2002 he had notified the OSCE’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son’s death. No evidence was provided in this respect.

12. In February 2003 the investigating judge returned the case file to the public prosecutor. The latter requested that the Ministry determine the identity of the police officers involved in the incident.

13. In a letter of 15 August 2003, the Ministry confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions (see paragraphs 35 and 36 below) after the incident.

14. In December 2003 the public prosecutor again asked the Ministry to submit the required information.

15. At the same time, a working group was set up to investigate several cases of alleged police abuse of citizens of Albanian ethnic origin, including the present case. The working group involved representatives of the Ministry, the OSCE, the EU, NATO and the US Embassy in the respondent State. The working group operated between December 2004 and October 2005.

16. On 12 January 2005 the investigating judge heard evidence from J.I. According to the transcript signed by J.I., the latter stated, inter alia:

“... When we approached the toll booth on the Tetovo-Gostivar highway, I noticed a high police presence and decided to turn around and take the ‘old road’... While driving on the old road ... I again noticed a high police presence; the road was blocked by a heavy vehicle. At both sides of the road there were many armed police officers. A police officer used a lamp to stop our car. He approached the car and requested documents. I gave him my registration document and my ID. Then he grabbed my shirt and pulled me out of the car. After me, Mr A.D. was also removed from the car. Both of us were standing in front of the car, while police officers conducted the search. One of them said that he had found two guns in the car. Each of them belonged to me and A. [Mr A.D.]. At that moment, a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up; another officer grabbed my leg and pushed me to the ground. They dragged me to the back of the car. ... They put me head first into the boot. My legs were outside the car. An officer pointed an automatic gun at my head and another beat me. I couldn’t see what was happening to A. I heard someone saying ‘stop, hold on’. Gunshots were subsequently heard, I think from several weapons, but I did not know what was going on. They took off my sweater and put it over my head. They took me out of the boot and placed me on the ground ...The two pistols were in the compartment in front of A.’s seat ... The person who pulled me out of the car that night was wearing a mask, so I could see only his eyes, I couldn’t see his face. Others were wearing masks as well. I only noticed the ‘Lions’ symbol on their uniforms...”

17. Between March and June 2005, the investigating judge examined eight police officers. Between September and December 2005, the investigating judge requested, in vain, that a certain police officer, A.M., be summoned.

18. In December 2005 the file was forwarded to the public prosecutor, who, in September 2006, returned it to the investigating judge, requesting, inter alia, that the first applicant be examined. By a letter of 17 November 2006, the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness. After the file was returned to the public prosecutor, the latter requested, by a letter of 2 February 2007, that the Ministry undertake additional measures to identify the individuals involved in Mr A.D.’s killing.

19. On 15 September 2008 the first applicant, with the assistance of Mr M.R., a lawyer from Skopje, sought information from the public prosecutor about the death of his son and requested a copy of the case file. On 17 September 2008 the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken, but the perpetrator had not yet been discovered. Mr M.R. was permitted to inspect the case file.

20. The first applicant took no further action. It appears that the investigation into the killing of Mr A.D. is still pending.

3. Events related to the death of Mr J.M. and Mr Q.S.

21. On 7 September 2003 the Ministry of the Interior and the Ministry of Defence conducted a joint operation in the village of Brest with the purpose of apprehending an armed group suspected of having committed several crimes, including robbery and kidnapping of civilians and police officers. There was an exchange of fire in which automatic long-range weapons and mortars were used. After the exchange of fire, the security forces searched the area and discovered five bunkers and a large quantity of heavy weaponry and ammunition. Mr J.M. and Mr Q.S. were killed in this operation. According to the post-mortem reports of the same date drawn up by the Forensic Institute, Mr J.M. sustained six bullet wounds and Mr Q.S. sustained four. Gunpowder tests confirmed the presence of nitrate residue on the hands of Mr J.M. and Mr Q.S.

22. On 12 September 2003 the Ministry submitted photos and video material of Mr J.M.’s and Mr Q.S.’s corpses to the public prosecutor, as well as an expert report regarding the weaponry and ammunition found.

23. On 7 November 2003 the public prosecutor requested information from the Ministry of the Interior. In a letter of 11 July 2005 the Ministry informed the public prosecutor that, owing to the use of heavy weapons by the armed group, police officers had not been able to reach the armed group’s positions, but that military forces from the Ministry of Defence had arrived at the critical area instead.

24. On 21 September 2005 the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor’s intervention.

25. As stated by the Government, on the basis of recommendations of the working group that also looked into this case, on 31 January and 4 April 2006 the public prosecutor contacted the Ministry of Defence seeking information about the operation. In a letter of 5 June 2006, the Ministry of Defence indicated that the operation had been carried out by the Ministry of the Interior. On 15 February 2007 the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation. In submissions of 16 April 2007, the Ministry of the Interior confirmed its position indicated in its letter of 11 July 2005 and invited the public prosecutor to clarify the matter with the Ministry of Defence. The same was repeated in the Ministry’s letter dated 26 June 2008.

26. On 17 September 2008 the second and third applicants, represented by Mr M.R., asked the public prosecutor to provide them with a copy of the case file. They stated that all the information they had obtained about the death of Mr J.M. and Mr Q.S. had come from the media since no competent institution had ever contacted them concerning the case. By a letter of 26 December 2008, the public prosecutor informed the second and third applicants of his requests for information from both Ministries and his “resolution” of 21 September 2005 (see paragraph 24 above). According to the Government, this letter was sent on 21 January 2009.

27. The second and third applicants took no further action. It appears that the investigation into the killing of Mr J.M. and Mr Q.S. is still pending.

4. Relevant articles and reports published by international human‑rights organisations

28. The applicants submitted extracts of articles and reports published between April 1998 and 2005 by Human Rights Watch and Amnesty International about alleged police abuse, in particular of Macedonian citizens of Albanian ethnic origin. Most of the documents concerned the period before and after the 2001 armed conflict. None of them discussed the deaths of the applicants’ sons.

B. Relevant domestic law

29. Article 123 of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of at least five years. It also provides for imprisonment of at least ten years or lifetime imprisonment in the case of aggravated murder.

30. The provisions of the Criminal Proceedings Act relevant to the present case were described in the Jašar judgment (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 33-40, 15 February 2007).

31. Section 25 (1) and (3) of the Public Prosecution Act of 2004 (Закон за Јавното Обвинителство, Official Gazette no. 38/2004) provided that citizens, bodies and other legal persons could make submissions, complaints and statements to the public prosecutor in relation to activities that fell within his or her competence. The public prosecutor was required to take, as soon as possible, but not later than three months after the service of a criminal complaint, any action specified by law.

32. Under section 47 of this Act, the superior prosecutor’s office supervised the work of the subordinate prosecutor’s office through an inspection of case files and in any other way.

33. Section 21 of the Public Prosecution Act of 2007 (Official Gazette no.150/2007) provides that the superior prosecutor’s office supervises the work of the subordinate prosecutor’s office in concrete cases brought before the latter. The aim of that supervision is to detect inter alia any lack of professionalism, unlawful, untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings.

34. Section 39 (1) and (3) of that Act provides for the same rules as those specified in section 25 of the 2004 Public Prosecution Act (see paragraph 31 above).

35. Under Article 27 of the Government Decree on the use of coercion and firearms, when means of coercion or firearms have been used, the State official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified.

36. Article 28 of this Decree provides that when a person is killed as a result of the use of means of coercion or firearms, a special commission must examine the circumstances of the case and give an opinion as to whether the use of firearms was appropriate and justified.

COMPLAINTS

37. The applicants complained under Article 2 of the Convention that the State had been responsible for their sons’ deaths and for the lack of effective investigations into the killings. They also alleged a lack of an effective remedy under Article 13 of the Convention. Relying on the documents published by international human-rights organisations (see paragraph 28 above), the applicants also complained under Article 14, taken in conjunction with Article 2 of the Convention, that there had been discrimination on the basis of their sons’ ethnic origin.

THE LAW

38. The applicants complained that their sons’ deaths and the lack of effective investigations into their killing had been in breach of Articles 2, 13 and 14, the latter taken in conjunction with Article 2 of the Convention. These Articles read as follows:

Article 2

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 13

Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 14

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

A. The parties’ submissions

39. The Government submitted that the applicants had not complied with the six-month rule. They had remained inactive during the proceedings. They had not requested information from the competent authorities about their cases until over six years after the death of Mr A.D. and five years after the deaths of Mr J.M. and Mr Q.S. According to the Government, before submitting these requests, the applicants had known or ought to have known that the investigations had not been effective in their cases. The last step had been taken in February 2007 (see paragraphs 18 and 25 above). At the latest, they should have become aware of that fact after having received the public prosecutor’s replies of 17 September and 26 December 2008 (see paragraphs 19 and 26 above). Even if that was the case, more than six months had lapsed before the introduction of the application before the Court.

40. The applicants contested the Government’s objection arguing that they had taken steps to keep track of the investigations’ progress. In particular they had communicated with each other and with the members of the working group, during and after the period of its work. In this connection they submitted that in March 2008 the OSCE had confirmed to the second and third applicants that the investigation was still ongoing. Furthermore, the fact that the first applicant had been called for an interview in November 2006 implied that the investigation had been ongoing. Given the international attention on their cases, it was understandable that they had waited longer for the results of the investigations without themselves taking the initiative and seeking information about the proceedings. Having regard to the discussions and report sent by the Ministry to the public prosecutor, as late as in June 2008, the investigations in the present case could have been regarded as still pending. In any case, the applicants should have had the benefit of a full year after September and December 2008 respectively before they should have been aware that the investigations were ineffective (see Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). This was because they had been reassured on those dates by the public prosecutor that the investigations were ongoing. They had reasonably believed that contacting the public prosecutor would have accelerated the investigations.

B. The Court’s assessment

41. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V). The rule should ensure that it is possible to ascertain the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see Abuyeva and Others v. Russia, no. 27065/05, § 172, 2 December 2010).

42. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of such acts or their effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).

43. The Court observes that in a number of cases concerning ongoing investigations into the deaths of applicants’ relatives it has examined the period of time from which the applicant can or should start doubting the effectiveness of a remedy and its bearing on the six-month limit provided for in Article 35 § 1 of the Convention (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III; Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question (see Narin, cited above, § 43). The Court has found that in cases concerning instances of violent deaths, the ineffectiveness of the investigation will generally be more readily apparent; the requirements of expedition may require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009-...).

44. In the present case, the events of which the first applicant complained occurred in August 2002. In September 2002 an investigation was opened into Mr A.D.’s killing. In 2003 the public prosecutor requested, in vain, on several occasions, that the Ministry identify the police officers involved in the incident. In the first half of 2005, the investigating judge examined eight police officers and J.I. The first applicant did not appear in court despite the fact that the investigating judge requested that he be examined sometime before November 2006.

45. The Court notes that Mr J.M. and Mr Q.S. were killed in September 2003. On the basis of information provided by the Ministry, on 21 September 2005 the public prosecutor found no grounds to proceed with the investigation. However, further requests for information, the last dated 15 February 2007, were sent to the Ministry of Defence and the Ministry of the Interior.

46. Although the investigations into the killing of the applicants’ sons, formally speaking, are still pending, it does not appear that any further steps have been taken since February 2007, the date when the public prosecutor sought information from the competent Ministries. The Government acknowledged this fact (see paragraph 39 above). The Ministry’s letters of April 2007 and June 2008 concerning the killing of Mr J.M. and Mr Q.S. (see paragraph 25 above), did not contain any new element that had been unknown to the public prosecutor.

47. The Court observes that during the investigations the applicants were not interviewed nor was any contact maintained between them and the investigating authorities. The second and third applicants confirmed this in their letter of 17 September 2008 (see paragraph 26 above). The Court observes that even in the absence of communication from the authorities, the applicants, who were the fathers of the deceased, were not discharged from the duty to display due diligence and initiative in informing themselves about the progress made in the investigations (see Narin, cited above, § 45; Bayram and Yıldırım, cited above; and Bulut and Yavuz, cited above).

48. In this connection the Court notes that no evidence has been provided that the applicants applied to any of the competent domestic authorities involved in the investigations. Indeed, they did not contact the public prosecutor who investigated the killing of their sons nor did they bring his or her alleged inactivity to the attention of the superior prosecutor’s office despite the fact that the relevant law provided for such possibility (see paragraphs 31-34 above). Furthermore, the first applicant took no action or any initiative in relation to the investigation into the killing of his son, neither before nor after the investigating judge had sought his examination in November 2006 (see paragraph 18 above).

49. The applicants did not show any interest by following up the conduct of or the progress made in the criminal investigations until 15 and 17 September 2008 respectively, the dates of their first requests seeking information from the public prosecutor. The lapse of such a long time before the applicants addressed, for the first time, the public prosecutor about the results of the investigations cannot be considered, in the present circumstances, reasonable. The public prosecutor’s replies provided just a mere summary of the activities that had been undertaken without indicating any possibility of progress in the investigations. In addition, the available material does not suggest that there was any information in the public domain purportedly casting new light on the circumstances of the killing of the applicant’s sons. On the contrary, the searches for the perpetrators had been ongoing for a long time without any active steps being taken by the authorities or the applicants, and without any evidence being brought to the authorities’ attention (see Gasyak and Others v. Turkey, no. 27872/03, §§ 60 and 62, 13 October 2009). Consequently, the applicants’ letters of September and December 2008 (see paragraphs 19 and 26 above) cannot be considered as having constituted new development which could have revived the State’s procedural obligation under Article 2 of the Convention and bring accordingly the application within the six month’s time-limit.

50. The purported communication with the OSCE, which had no direct role in the investigations, is of no relevance. Furthermore, the working group, which included members of the international community, had ceased to exist already in October 2005, long before the applicants introduced the application before the Court (see paragraph 15 above). The second and third applicants did not substantiate their assertion that they had exchanged information between themselves. Consequently, they were unaware of any step taken by the authorities (contrast Abuyeva, cited above, § 179). In such circumstances, the applicants must be considered to have been aware of the lack of any effective criminal investigations long before they introduced their application before the Court. If that is not the case, the Court considers that that was due to their own negligence (see Bayram and Yıldırım, cited above, and Bulut and Yavuz, cited above).

51. In the light of the foregoing, the Court considers that the applicants have failed to comply with the six-month rule. The application must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Søren NielsenNina Vajić
RegistrarPresident

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