FIRST SECTION
Application no. 15191/12
Aleksandar KITANOVSKI and Tihomir KITANOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 9 March 2012
STATEMENT OF FACTS
The applicants, Mr Aleksandar Kitanovski (“the first applicant”) and Mr Tihomir Kitanovski (“the second applicant”) are Macedonian nationals. The second applicant is the father of the first applicant. The latter was born in 1988 and lives in Skopje. The applicants are represented before the Court by Mr V. Kitanovski and Mr T. Kitanovski respectively, lawyers practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Outline of events
On 10 June 2009, at around 2 a.m. the first applicant, using a car of the second applicant, was coming back home from a discotheque. In the centre of Skopje, a police car started chasing him. Instead of stopping, the first applicant accelerated. He was chased by members of the special police unit “Alfa”. After he broke through a police roadblock, the police officers started firing at the car. According to an expert report drawn up on 14 July 2009 by the Ministry of the Interior, four bullets were fired from a pistol and a machine gun. Two bullets hit the car, of which one bullet hit the rear window, which in result collapsed, and the second bullet broke through the rear door of the car and ended up hitting the front passenger’s seat. Eventually, the first applicant stopped. He was dragged out of the car. Several police officers started hitting him all over his body. He was beaten with truncheons, punched and kicked in his head. He was handcuffed and taken to a hospital for a blood analysis. He was further taken to a police station in Skopje where he remained until 1 p.m.
Following his release, the first applicant went to Skopje Health Centre and asked for medical assistance. A medical certificate issued that day indicated that he had sustained several bodily injuries in a physical assault by police officers. The assault took place the previous night at around 3 a.m.
2. Criminal investigation
On 14 July 2009 the applicants, through their legal representatives, filed a criminal complaint with the public prosecutor against unidentified police officers on account of alleged ill-treatment. The complaint also alleged the crimes of abuse of office and general endangerment punishable under the domestic criminal law. In the complaint, the applicants set out a factual account of the incident and alleged that the officers concerned had put the life of the first applicant at risk and had ill-treated him. They submitted in support a copy of the medical certificate of 10 June 2009, a copy of an X‑ray report drawn up the same date, nine photographs, as well as an expert report regarding the car damage.
Between 31 March 2010 and 21 June 2011, the first applicant addressed the public prosecutor on four occasions seeking that it initiate criminal proceedings as provided for by law. He further informed the public prosecutor about the identity of six police officers, which he had meanwhile managed to reveal.
In a letter of 23 September 2011, the public prosecutor notified the applicants that there were no grounds for the public prosecutor’s intervention due to the absence of any indications that police officers had committed a crime subject to prosecution by the State proprio motu. There was no instruction as to whether the applicants could pursue the prosecution.
B Relevant international material and domestic law
1. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 September to 1 October 2010, CPT/Inf (2012) 4, 25 January 2012
The relevant part of the CPT Report of 2012 reads as follows:
“10. The CPT has noted that the number of allegations of ill-treatment by law enforcement officials, as well as the severity of such allegations, has diminished since previous visits. Nonetheless, in the course of the 2010 visit, a significant number of persons interviewed by the delegation alleged that they had been ill-treated by police officers, primarily civilian crime inspectors and members of the mobile Alfa teams in Skopje. The alleged ill-treatment consisted of punches and kicks to the body and head as well as the use of batons. In most instances, the alleged ill-treatment is said to have taken place in the offices of the crime inspectors in police stations (and appeared to be related to attempts to extort confessions from the suspects) or during transfer from the place of arrest to a police station ...”
2. Criminal Proceedings Act of 1998
The statutory provisions relevant for the present case were described in the Jašar case (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 33-37, 15 February 2007).
COMPLAINTS
The applicants complain under Article 3 of the Convention that the first applicant’s life was put at risk and that he was ill-treated by police officers. They also complain under this Article that there was no effective investigation into his allegations. They complain under Article 6 that they were denied the right of access to a court due to the failure of the public prosecutor to reject their criminal complaint by means of a formal decision. Lastly, they relied on Article 13 in that they did not have an effective remedy in respect of their complaints under Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the first applicant, during his arrest on 10 June 2009, been subjected to a treatment in breach of Articles 2 or 3 of the Convention?
2. Having regard to the procedural obligation under Articles 2 or 3 of the Convention, was the investigation in the present case by the domestic authorities in breach of these Articles of the Convention? Having regard to the public prosecutor’s letter of 23 September 2011, was the first applicant denied the right of access to court proceedings in which he could take over the prosecution as a subsidiary complainant?
3. Did the first applicant have at his disposal an effective domestic remedy for his complaints under Articles 2 or 3 of the Convention, as required by Article 13 of the Convention?
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