FIRST SECTION

CASE OF KITANOVSK A STANOJKOVIC AND OTHERS v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

( Application no. 2319/14 )

JUDGMENT

STRASBOURG

13 October 2016

FINAL

13/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kitanovska Stanojkovic and Others v. the former Yugoslav Republic of Macedonia ,

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

Ledi Bianku, President, Mirjana Lazarova Trajkovska, Kristina Pardalos, Linos-Alexandre Sicilianos, Robert Spano, Armen Harutyunyan, Pauliine Koskelo, judges, and Abel Campos , Section Registrar ,

Having deliberated in private on 20 September 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 2319/14) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Macedonian nationals, Ms Olga Kitanovska Stanojkovi c (“the first applicant”), Ms Svetlana Audigier (maiden name Kitanovska) (“the second applicant”) and Ms Olivera Menart (maiden name Kitanovska ) (“the third applicant”) on 31 December 2013 . The first and second applicants live in Ponthierry, and the third applicant lives in Massy, France.

2 . The applicants were represented by Mr C. Meyer, a lawyer practising in Strasbourg. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3 . The applicants alleged, in particular, that the respondent State had not discharged its obligations under Article s 2 and 8 of the Convention , given that it had taken too long to enforce F.T . ’ s custodial sentence. F.T. had been convicted of an aggravated robbery in which V.K., the applicants ’ husband and father, had been killed and the first applicant had sustained life-threatening injur i e s .

4 . On 12 May 2014 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Introduction

5 . On 25 October 2011 two persons wearing black masks entered the applicants ’ house with an intention to rob them . They hit V.K., the applicants ’ husband and father, as well as the first applicant, inflicting on them severe injuries. In consequence , on 1 November 2011 V.K. died. After the incident, th e first applicant was admitted to hospital where she remained in the intensive care unit until 4 November 2011.

B. Criminal proceedings for robbery

6 . On 3 November 2011 the public prosecutor requested that the Skopje Court of First Instance (“the trial court”) launched preliminary proceedings against F.T. (seventeen-year old at the time) on account of aggravated robbery and remanded him in custody . On the same date, the trial court ordered F.T. ’ s detention for fifteen days. The detention was ordered on account of the risk of him absconding and interfering with the investigation, namely “ influencing the victims witnesses, in particular since they live in (F.T. ’ s) vicinity”.

7 . By a decision of 17 November 2011 , an investigating judge of the trial court extended F.T. ’ s detention for fifteen days for the same reasons as before. On 1 December 201 1 the investigating judge ordered his release finding that “his attendance at the trial can be secured with a more lenient measure (seizure of passport and obligation to report to the court) ... T aking into account the individual circumstances and needs of [F.T.], his age, the fact that he is a regular student in third year of secondary school and a young man in development, [ the court] considers that there are grounds for termination of the detention order .. . ”

8 . On 13 January 2012 the public prosecutor lodged an indict m e nt against F.T. and a certain S.G. They were indicted on charges of aggravated robbery with respect to the incident of 25 October 2011 .

9 . On 7 June 2012 the Skopje Court of First Instance, after it had heard evidence from the accused , the applicants, witnesses , experts , representatives of a Social Welfare Centre (who suggested that F.T. should be sentenced to a prison term if he was f ound guilty) , and admitted considerable material evidence, including several expert reports (including a psychiatric expert report which confirmed that F.T. had been mental ly fit w hen the crime had been committed ) established the following :

“ A t 1 . 30 a . m. on 25 October 2011 the accused S.G. and F.T . , on the basis of a prior agreement , arrived [ at the applicants ’ house ] with an intention to steal movable objects . With the use of force and dangerous object – a metal hammer with a wooden grip, they intentionally inflicted serious injuries on the now deceased V.[K.] and [the first applicant] in order to achieve their aim ... Wearing black masks, [ S.G. and F.T. ] arrived in f ront of [the applicants ’ house] ... V.K. opened the door . They both entered the house . S.G. immediately started hit ting V.K. on the head and hands with the metal hammer. V.K. sustained serious injuries - head wounds, multi -fragmented fractures accompanied with brain haemorrhag es under the hard tissues of the brain ... linear skull fracture, a s a result of which he died on 1 November 2011. Soon after, L.J., [the first applicant ’ s daughter and the second and third applicants ’ sister] appeared and started screaming. S.G. then physically assaulted her by hitting her on the head .. . She fell down , pretending to be dead. A fter [the first applicant] had heard L.J. ’ s scream ing , s he arrived in the kitchen in order to see what was going on, but when she arrived in the living room, she was assaulted by the minor F.T. He punched her hard in the head , inflicting severe injuries , namely four head wounds [ cuts and bruises ]; two sizeable skull fractures ; haemorrhag es under the soft tissue s of the brain; and a brain lesion in the area of the left temple ... ... [ the first applicant ] , V. [ K. ] and L. [ J. ] were taken by ambulance to Skopje Hospital . They were admitted by I.S. , a doctor who was on duty at the time , who noted the serious physical injuries which both V. [ K. ] and [ the first applicant ] had sustained . They were kept in hospital, since their injuries w ere life-threat en ing ... ”

10 . As stated in the judgment, “[t he second applicant ] was not able to recognise her parents given their injuries. Her mother was so much beaten that she could not see; her eyes were closed and her face was so much coloured ( модро ) that she could not recognise her.”

11 . The court found S.G. and F.T. guilty of aggravated robbery and , relying on Article 237(4) in relation to sub-paragraph 1 of the Criminal Code (see paragraph 1 6 below), sentenced them to six and five years ’ imprisonment respectively. The time which F .T. had spent in pre-tr i a l detention was to be deducted from the total length of his custodial sentence . As victims, t he applicants were advised to pursue compensation claim s by means of a separate civil action for damages.

12 . By judgments of 26 November 2012 and 12 March 2013 , the Skopje Court of Appeal and the Supreme Court, respectively, dismissed F.T. ’ s complaints about alleged errors on the facts and law , as well as alleged violations of the procedural rules. Both courts upheld the lower court ’ s judgment finding no grounds to depart from the fact s as established by the trial court and the reasons given for the conviction .

C. Enforcement of the custodial sentence

13 . O n 2 January 2013 an enforcement judge responsible for execution of the custodial sentence issued an incarceration order ( упатен акт ) in respect of F.T. According to that order, F.T. was required to report to Ohrid Detention Centre on 30 January 2013 in order to serve the sentence. On 17 January 2013 F.T. requested that the sentence be postpone d for family and health reasons. This request was dismissed by decisions of 21 January and 12 February 2013 by the enforcement judge and a three-judge panel of the trial court, respectively. On 21 February 2013 the d etention c entre informed the enforcement judge that F.T. had not arrived at the facility on the specified date . By letters dated 28 February, 8 April and 20 May 2013 , the enforcement judge notified the trial court in Skopje responsible for m inors about F.T. ’ s failure to report to the detention facility and sought instructions “given the urgent nature of the proceedings”. The se letters remained unanswered.

14 . The Government submitted that after the above correspondence, no enforcement judge had been appointed to deal with the case for over eight months . After such a judge had been appointed , o n 27 March 2014 another incarceration order had been issued in respect of F.T. The latter sought, to no avail, for the custodial sentence to be adjourned. On 2 May 2014 the detention centre advised again that F.T. had not arrived at the facility .

15 . O n 30 June 2014 the enforcement judg e order ed F.T. ’ s arrest . F.T. was arrested on 10 July 2014 and started serving his custodial sentence o n 11 July 2014 . T he detention centre confirmed by letter that F.T. w ould remain in custody until 27 June 2019.

II. RELEVANT DOM ESTIC LAW

A. Criminal Code

16 . The relevant provision of the Criminal Code reads:

Robbery Article 237

“ (1) A nyone who use s force or the threat of imminent harm to a ttack another person in order to seize property from them and appropriate it unlawfully shall be sentenced to at least one year ’ s imprisonment.

...

(3) I f serious physical injury was intentionally inflicted in the commission of the offen c e ; or if the offence was committed by a group or gang ; or if firearms or other weapons were used , then the perpetrator of that offence shall be sentenced to at least five years ’ imprisonment .

(4) If a person was intentionally killed in the commission of the offen c e, then the perpetrator of that offence shall be sentenced to at least ten years ’ imprisonment or to life imprisonment.”

B. Enforcement of Sentences Act (Official Gazette no.2/2006)

17 . The relevant provisions of the E nforcement of S entences Act read:

Chapter IX

Enforcement of a custodial sentence

1. Imprisonment of convicted persons

Section 83

“ (1) An enforcement judge has the power to enforce a custodial sentence ...

...

(4) The imprisonment procedure for persons who have been convicted is one which must be carried out as a matter of urgency. ”

Section 85

“ The enforcement judge is obliged to take – either immediately or within eight days of receipt of an executive judgment – all necessary measures to enforce a custodial sentence. ”

Section 86

“ ...

(3) T he person who has been convict ed shall report to the detention cent re (in order to serve his custodial sentence) within eight to thirteen days of receipt of the incarceration order. ”

Section 87

“ ...

(2) If the person who has been convict ed does not start serving his custodial sentence on the specifi ed date , the detention cent re shall immediately inform the enforcement judge.

(3) The enforcement judge shall immediately order the Ministry of the Interior to arrest the person who has been convicted ... ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

18 . The applicant s complained that the delayed enforcement in respect of F.T. ’ s custodial sentence was the fault of the respondent State , and relied on Articles 2 and 8 of the Convention . They alleged that it had been impossible for them, in particular for the first applicant , to return to their house , given the fact that F.T . lived in the vicinity.

19 . The Court, being the master of the characterisation to be given in law to the facts of the case (see Akdeniz v. Turkey , no. 25165/94, § 88, 31 May 2005), considers that the applicants ’ submissions in this regard should be analysed only with reference to Article 2 of the Convention in its procedural aspect. That provision reads :

“1. Everyone ’ s right to life shall be protected by law ... ”

A. Admissibility

20 . The Government did not raise any objection as to the admissibility of this complaint.

21 . Notwithstanding the absence of any objection by the Government regarding the admissibility of the complaint under this head, the Court will address the issue of the applicability of Article 2 of the Convention.

22 . On the facts of the case, it observes that V.K., the first applicant ’ s late husband and the second and third applicants ’ father, died following the incident of 25 October 2011. The first applicant , who was also attacked in the incident, was not killed . However, the fact that the force used by F.T. against the first applicant did not turn out to be fatal was merely fortuitous. I t is clear that the first applicant sustained severe injuries to her hea d , which were regarded as life-threatening (see paragraph 8 above) . T he fatal consequences of S.G. and F.T. ’ s actions led the domestic courts to convict them both of aggravated robbery (see paragraphs 10 and 15 above) . The Court therefore considers that this Article applies in the circumstances of the case (see , mutatis mutandis , Sašo Gorgiev v. the former Yugoslav Republic of Macedonia , no. 49382/06 , § 38, ECHR 2012 (extracts) , Fedorchenko and Lozenko v. Ukraine , no. 387/03 , § 41, 20 September 2012; Rantsev v. Cyprus and Russia , no. 25965/04, § 232, ECHR 2010 (extracts) ; and Angelova and Iliev v. Bulgaria , no. 55523/00, §§ 92-93 , 26 July 2007 ) .

23 . The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

24 . The applicant s , who now live in France, argued that the fact that no enforce ment judge had been appointed for a prolonged time to execute F.T. ’ s custodial sentence (see paragraph 1 4 above) could not release the State from its obligations under Article 2 of the Convention. T heir allegations under this head did not concern any new threats or attacks by F.T. about which they could complain to the national authoritie s , but rather the continuing threat which F.T. posed to the m , and the sense of im p unity which he had been free to enjoy until the authorities enforce d his custodial sentence . It was that threat and the continuing pressure created by the presence of F.T. in their vicinity which forced the applicants to leave their village and the respondent State.

25 . The Government submitted that the enforcement of F.T. ’ s custodial sentence had been delayed because , for eight months , there had been no enforcement judge appointed to deal with the case. The fact t h at F.T. had only briefly been remanded in pre-trial detention (see paragraph 6 above) suggested that there had been no risk that he would interfere with the proceedings or endanger the victims. He had remained living in the same house and , according to the available material, there was nothing to suggest that he had posed a threat to the applicants. In addition, the applicants had not complained to the national authorities that F.T. had threatened them or done anything to put them at risk . Furthermore , they had failed to substantiate their allegation that F.T. had posed a real threat to their li v e s and safety and that their fear of return ing to their house had been genuine . Lastly, the Government argued that it was possible t h at F.T. would return to the same house after serv ing his sentence. In the absence of a ny definite action against the applicants, t he mere presence of F.T. in the same village could not be interpreted as a threat to the ir rights under the Convention .

2. The Court ’ s assessment

26 . The Court reiterates that Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal ‑ law provisions designed to provide effective deterrence against threats to the right to life , backed up by law ‑ enforcement machinery for the prevention, suppression and punishment of breaches of such provisions . Compliance with the State ’ s obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another (see Zubkova v. Ukraine , no. 36660/08, § 35, 17 October 2013 ; Mojsiejew v. Poland , no. 11818/02, § 53 , 24 March 2009, and the references cited therein ; Kasap and Others v. Turkey , no. 8656/10 , § 60, 14 January 2014; and Ali and AyÅŸe Duran v. Turkey , no. 42942/02, §§ 69 and 72, 8 April 2008 ).

27 . The requirement of effectiveness , which includ es promptness and reasonable expedition, under Article 2 of the Convention serves, inter alia , to maintain public confidence in the authorities ’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts, and to secure the effective implementation of the domestic laws which protect the right to life (see, Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009 and Ghimp and Others v. the Republic of Moldova , no. 32520/09 , § 44, 30 October 2012 ).

28 . Turning to the present case, the Court notes that the incident in which V.K. was killed and the first applicant severely injured happened on 25 October 2011. On 13 January 2012 the public prosecutor indicted S.G. and F.T. on charges of aggravated robbery. On 7 June 2012 the trial court convicted S.G. and F.T. and sentenced them to a prison term of six and five years, respectively. It considered that the acts committed by S.G. and F.T. were of such a nature that incarceration was necessary on the grounds of the risk they posed to public security. T his judgment became final on 26 November 2012 being confirmed on appeal (see paragraph s 6 - 1 2 above), which was a year and one month after the incident . By the judgment of 12 March 2013, the above judgments were both confirmed by the Supreme Court. The applicants did not criticise either the conduct of those proceedings or the outcome. Nor does the Court, which considers that t he imperative of establishing the circumstances of the case and the person s responsible, was satisfied in this case. Accordingly, the Court is of the view that the authorities of the respondent State fulfilled the procedural obligations that arose under Article 2 with respect to the criminal proceedings (see Zoltai v. Hungary and Ireland (dec.), no. 61946/12, § 30, 29 September 2015) .

29 . The case, as submitted by the applicants, concerns the delayed enforcement of the custodial sentence in respect of F.T. , for which delay they hold the respondent State entirely responsible.

30 . In this connection the Court notes that F.T. did not commence service of the sentence until 11 July 2014, which was over eighteen months after his conviction had bec o me final. On the available material, it observes that after F.T. had failed to report to the detention facility on the date specified in the incarceration order, the competent enforcement judge of the trial court unsuccessfully sought to obtain information from the minors ’ department of the same court (see paragraph 13 above) . The Court cannot discern wh at was the purpose of that communication and whether it was necessary in the circumstances of the case. However, it observes that t hree letters of the enforcement judge remained unanswered. Such a lack of coordination between two departments of the same court caus ed a delay of at least three months during which F.T. remained at liberty.

31 . It appears that between 20 May 2013 and 27 March 2014 , when a fresh incarceration order was issued, no action has been taken by the authorities with a view of enforcing the fin al judgment of 26 November 2012 . According to the Government, during that time there was no enforcement judge who could deal with the case (see paragraph 1 4 above) .

32 . T he Court notes that the domestic legislation provided that the imprisonment procedure be urgent (see paragraph 1 7 above). The requirement of effectiveness of the criminal investigation under Article 2 of the Convention can be also interpreted as impos ing a duty on States to execute their final judgments without undue delay. It is so since the enforcement of a sentence imposed in the context of the right to life must be regarded as an integral part of the procedural obligation of the State under this Article (see paragraphs 26 and 27 above) .

33 . On the facts of the case, the Court considers that the authorities of the respondent State did not display the requisite diligence in enforcing the custodial sentence in respect of F.T. The delays indicated above , which are entirely attributable to the authorities, cannot be regarded as reasonable. The particular circumstances of the case required a swifter response from the authorities. The Court therefore concludes that the system of the respondent State with respect to enforcing custodial sentences (see paragraph 1 7 above) did not prove efficient in the present case. The unjustified delays in enforcing the judgment were not in conformity with the State ’ s obligation under Article 2 of the Convention irrespective of whether F.T. had, after his conviction, demonstrated any hostility against the applicants.

34 . Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

35 . The applicant s also complained that they had not had an effective remedy regarding the delayed enforcement of the custodial sentence imposed on F.T. They relied on Article 13 of the Convention, which reads:

“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.”

36 . The Government submitted that Article 13 was inapplicable , since the applicants did not have an “arguable claim” under Article 2 of the Convention.

37 . The applicants submitted that they had not had any remedy by which to seek F.T. ’ s imprison ment sooner or to obtain a full explanation as to why the enforcement of his sentence had been delayed .

38 . Having regard to the finding relating to Article 2 , the Court considers that , whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint (see , mutatis mutandis , Enukidze and Girgvliani v. Georgia , no. 25091/07 , § 311, 26 April 2011) .

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

39 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

40 . The applicants claimed 5,000 euros (EUR) each in respect of non-pecuniary damage.

41 . The Government contested this claim as unsubstantiated and excessive. They further alleged that there was no causal link between the damage claimed and the alleged violations.

42 . The Court considers that the applicants must have suffered distress and anxiety on account of the violation which has been found. Ruling on an equitable basis, it awards each applicant the sum of EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable .

B. Costs and expenses

43 . The applicants also claimed EUR 2,420 for the costs and expenses incurred before the Court. In support, they produced a copy of a retainer agreement and an invoice confirming payment of the above amount.

44 . The Government contested this claim as unsubstantiated.

45 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France , no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards in full the sum claimed under this head, plus any tax that may be chargeable to the applicants.

C. Default interest

46 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of the procedural aspect of Article 2 of the Convention;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,420 (two thousand four hundred and twenty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 13 October 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Ledi Bianku Registrar President