Communicated on 10 March 2017
FIRST SECTION
Application no. 56148/15
Zoran DELOVSKI and others
against the former Yugoslav Republic of Macedonia
lodged on 5 November 2015
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are the children (Mr Z. Delovski and Ms B. Delovska) and widow (Ms S. Delovska) of the late Mr K. Delovski (K.D.), who died in a traffic accident on 8 October 2014 at the age of seventy-six. After the accident, the Ministry of the Interior officials inspected the scene and interviewed A.A., the driver of the car that hit K.D. According to the record of the inspection, A.A. stated that at the time of the accident there had been cars on both sides of the road and K.D. had suddenly appeared immediately in front of her car. He had hit his head against the left wing mirror and had fallen to the ground. She had got out of the car and helped him.
On 27 October 2014 the Ministry brought criminal charges against A.A. of “serious crimes against people and property in traffic”. On 30 October 2014 the public prosecutor heard oral evidence from Mr Z. Delovski and Ms B. Delovska. On that occasion and by a subsequent letter of 5 November 2014, the family requested that the public prosecutor examine two eyewitnesses (B.S. and Z.C.) about the accident. They provided the witnesses’ personal and contact details. The public prosecutor admitted a report on the accident drawn up by a court-certified expert for the deceased’s children. According to that report the front bumper and left wing mirror of A.A.’s car had hit K.D., who had then been thrown over the bonnet and had hit his head on the windscreen (the record of the inspection confirmed that the left side of the windscreen was broken). The expert’s opinion was that A.A. had not exercised due caution and that her responsibility for the accident outweighed that of K.D., which stemmed from the fact that he had not been using a pedestrian crossing to cross the road.
On 27 April 2015 the public prosecutor (основно јавно обвинителство) rejected the criminal complaint, finding that the charges did not concern an offence subject to State prosecution. The decision was based on several expert reports submitted in evidence. An examination commissioned by the public prosecutor, as well as two expert reports submitted by the accused, established that K.D. had crossed three lanes of traffic outside the designated crossing area before being hit by A.A.’s car; he had been hidden by other cars before the accident; A.A. had not been driving at an excessive speed; her reaction had been timely and adequate and it had been impossible for her to avoid hitting him. Given that those reports contradicted the findings of the expert appointed by Mr Z. Delovski and Ms B. Delovska, the public prosecutor commissioned a fresh expert examination, which was carried out by three court-certified experts. That examination confirmed the findings that responsibility for the accident lay entirely with K.D.
After the media reported on the above decision the Delovski children asked the public prosecutor to allow them to inspect the case file. The public prosecutor served the decision on them, but did not allow them to inspect the case file.
Mr Z. Delovski and Ms B. Delovska appealed against the decision to the higher public prosecutor. They complained that the first public prosecutor had not examined the witnesses they had proposed. In that connection they stated that B.S. had witnessed the accident and had direct, first-hand information. Z.C. had been the first person on the scene and had given first aid to K.D. after the accident. Both witnesses had stated that there had been no cars on the road at the time and that K.D. had neither been hidden by other cars nor had he crossed the road between cars. The applicants complained that the prosecutor’s findings had been based solely on A.A.’s statement given after the accident, which, according to them, had been self-serving. It was also alleged that the prosecutor had failed to take evidence from three other people who had been in A.A.’s car at the time.
On 8 June 2015 they submitted a statement certified by a notary public in which B.S. confirmed that he had observed the accident from his balcony overlooking the road. He denied that there had been any other cars nearby when K.D. had crossed the road outside the designated area. K.D. had crossed three lanes and had then been hit by A.A.’s car. A.A. had not been braking at the time of the collision. B.S. confirmed that there were four people in the car at the time of the accident.
By a decision of 1 July 2015 the higher public prosecutor dismissed the the appeal and upheld the findings of the lower prosecutor. He held that “there is no other verbal or material evidence which can lead to different factual conclusions ...”.
COMPLAINT
The applicants complain under Article 2 of the Convention that the investigation into K.D.’s death was ineffective because the public prosecutor did not hear evidence from the witnesses they had proposed and did not allow them access to the case file.
QUESTIONS TO THE PARTIES
Have the State authorities complied with their obligations under Article 2 of the Convention concerning the death of the applicants’ father and husband? In particular, was the impugned investigation by the prosecuting authorities thorough enough and were the applicants able to participate in it effectively?
Appendix Mr Zoran DELOVSKI born on 6 June 1965; Ms Biljana DELOVSKA born on 23 June 1970; Ms Slobodanka DELOVSKA born on 25 December 1944.
They are all Macedonian nationals, live in Skopje and are represented by Mr F. Medarski, a lawyer practising in Skopje.
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