FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13252/02 by Amdi DZELADINOV and Others against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 6 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mr J.S. Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 12 December 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Amdi Dzeladinov (“th e first applicant”), born on 23 October 1975, Mr Dudzihan Kamilov (“th e second applicant”), born on 2 Ap ril 1966, Ms Remzie Durmi š ova (“the third applicant”), born on 25 March 1977, Mr Dagistan Alilov (“th e fourth applicant”), born on 1 February 1977, and Mr Mefail (Meta) Asanovski (“the fifth applicant”), born on 24 January 1966, are Macedonian nationals who were born in Štip and Kumanovo and live in Štip , the former Yugoslav Republic of Macedonia. They are represented before the Court by the Association for the Protection of Roma Rights from Štip in the former Yugoslav Republic of Macedonia and the European Roma Rights Centre in Budapest , Hungary . The Macedonian Government (“the Government”) are represented by their Agent, Mrs R. Lazareska Gerovska.

A. The circumstances of the case

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

1. The incident

( a) The applicants ’ version of events

A t around midnight on 2 August 1998, a group of Roma, who were leaving a restaurant where they had attended a Romani circumcision celebration, were involved in a fight with Z.S. , a wrestling champion who worked as a fitness instructor in the police. Z.S. reported the incident to the local police and around ten police officers went to the restaurant in search of the alleged attackers. When they entered the restaurant, they allegedly started to assault the guests.

According to the applicants, they were beaten with truncheons , punched and kicked. The fifth applicant said that he was grabbed by the hair and beaten all over his body; he was then handcuffed and taken to the police station where he was subjected to severe ill-treatment. The second applicant also complained that he had been beaten, despite his wife ’ s attempts to protect him. The second and the fourth applicant s said that they were taken to a police station where they were kept for several hours and beaten by the police officers, who repeatedly insulted their ethnic origin.

The third applicant was seven months pregnant when she was beaten in the restaurant. Following the raid, the police were asked to arrange for her to be taken to hospital, but refused. She somehow managed to get to the hospital, but the doctors refused to examine her when they found out that her assailants were police officers. She said that she was severe ly distressed and in pain throughout the night. The following day, she was examined in the same hospital , but no injuries or problems were detected.

It was alleged that t wenty other Roma asked for medical help that night, but they were all turned down as they could not pay for treatment .

The next day, in response to an earlier police summons, the first applicant went to the police station where he was allegedly beaten for two hours and insulted about his ethnic origin. He said that some six police officers had hit him with a truncheon, and punched and kicked him. A gun had been held to his head at which point he had falsely confessed his involve ment in the fight with Z.S.

( b) The Government ’ s version of events

At around 11.40 p.m. on 2 August 1998 the police officers on duty received a telephone call saying that four Roma, who had attended a circumcision party in the restaurant, had stopped a car and physically attacked the driver (Z.S.). Three police officers went to the scene. After Z.S. had identified the first applicant as being among the attackers, the police officers requested him to leave the group and to get into the police car. Although the police officers did nothing to provoke the group, some 50 to 80 Roma started to throw stones and bottles causing facial injuries to one of the officers. The police car was also damaged. As the police officers were prevented from arresting the first applicant, who had fled the scene, and as they feared for their own safety, they radioed for backup. One of the officers fired two shots in the air to disperse the crowd. A subsequent patrol of five officers arrived at the scene. Another two shots were fired in the air.

As these attempts to restore order proved unsuccessful, the police officers used batons. After the crowd had been broken up, the police took various people, including the second and fifth applicants to the police station. After being questioned about the assault on Z.S., the second and fifth applicants were released. It was established that they had been among the crowd, but had not been involved in the physical attack on Z.S. No force was used against them in the police station. According to the medical records of the Emergency Unit of the Štip Hospital , none of the persons apprehended or involved in the fight had requested medical assistance as a result of the police ’ s intervention. On the other hand, three police officers had been examined and two of them were found to have sustained minor injuries.

According to the medical records, at the request of a pregnant woman, a medical team had gone to the scene and brought her to the hospital. An entry in the hospital ’ s medical records of 3 August 1998 showed that one Sulimanova Ramize or Demirova Remzie had been “urgently” admitted with bruising to the head. Two doctors, a surgeon and a gynaecologist had examined her and a note had been made in the record: “no funds – fight”. No injuries to the foetus or other pregnancy-related trauma were detected. On 4 August 1998 the same findings were recorded by another doctor in the medical records of Sulimanova Ramize, who it was noted, had frequently requested medical assistance in the past for injuries sustained in fights and had sustained a black eye on the most recent occasion. An eyewitness to that incident stated that a pregnant woman had hit a police officer over the head with a bottle.

The Government based their version of events on a number of police reports that had been compiled between 3 August and 11 September 1998.

2 . Documents concerning the incident and the criminal proceedings against the first and fourth applicants

(a) Report on the use of coercive measures

On 3 August 1998 the chief of the local police drew up a report concerning the coercive measures that had been used during the incident. It reads, inter alia , as follows:

“...on 2 August 1998 a phone call was received saying that Z.S. had been physically attacked by a group of Roma...Mr S., Mr A. and Mr M. [police officers] arrived at the scene...Z.S. identified one of the attackers ... he was requested to get into the police car. The person concerned came forward without resisting..., but when a van arrived... the crowd attacked it, started to drag Mr S. and Mr M.... they started to throw stones, bottles and other objects at the officers and the police car. The suspect fled ... Backup was immediately requested; five police officers arrived after two to three minutes ... around 60 to 80 people threw stones, bottles and other items ... police officers A.D., M.Z and N.P. were hit... Physical force and rubber batons were used against several Roma by the officers S.S., A.D., M.Z., S.V., T.T., N.P., B.R., S.V. and Z.S....because the crowd continued to throw stones and other objects at the officers despite warnings (six shots fired in the air) ...”

( b ) Telegram of 3 August 1998 from the local police to the Ministry of the Interior (“the Ministry”)

In the telegram, the police described the incident and stated that four people, including the second and fifth applicants, had been brought to the police station for questioning. It said that three police officers had sustained minor injuries in the intervention in which stones and bottles had been thrown at the police officers.

( c ) Information on the measures that were taken in relation to the incident

In a document of 11 September 1998, the Å tip police indicated that according to the statement of an eyewitness, the incident had caused considerable alarm. This is how the eyewitness described the incident:

“... I and my wife were extremely unnerved by the incident and the intensity of the attack by the Roma, first, against the occupant of the car [referring to Z.S.], and then against the police officers who had done nothing to anger the crowd. It was simply that the savage nature [of the attack] was clear to see and incited by an inebriated group of people who had been celebrating a circumcision...”

Concerning the use of coercive measures, the report stated inter alia :

“...it is considered that the use of rubber batons was justified for the following reasons: unmotivated and brutal attack on Z.S.; the authorised officers had been prevented from carrying out an official activity, i.e. identifying the perpetrator of an offence, although no coercive measures had been used against the person concerned or anyone else; the life and physical integrity of the authorised officers had been endangered by a sustained attack which was liable to cause grievous bodily harm or fatal injury; officials were injured and a police car damaged; orders by the police officers were disobeyed and the attack had continued even after shots were fired in the air...”

The document continued:

“...some media and citizens associations minimise or ignore the objective circumstances and the responsibility of the perpetrators and the individual involvement of each of the participants in the group, tendentiously asserting that the police had targeted the Roma population when they were not influenced by the perpetrators ’ ethnic affiliation, but merely responded to the concrete circumstances of the incident...”

It was further noted that a group of some 20 to 30 Roma and Mr A.B., a former Member of Parliament had gathered outside the local police station afterwards.

( d ) Extracts from depositions taken on 12 December 1998 in the pre-trial proceedings against the first and fourth applicants

Mrs P.S., Z.S. ’ s wife, who was in the car at the time of the incident stated, inter alia :

“...Meanwhile, one of the participants went to the restaurant where the Roma were holding a wedding party and most probably told lies [about the incident]. A large group of people came out of the restaurant causing total chaos. When the officers got out of the car, they started throwing stones and other objects. A horse cart was standing nearby and a man gave wooden sticks to the group to use against the police. I would stress that women and children stood in front of the officers with the men behind. There was a pregnant woman among the group of people. My husband took her out of the group so that she would not be injured; he stopped a car which took her to the city hospital...”

( e ) Extracts from depositions taken on 2 March 1999 in the pre-trial proceedings against the first and fourth applicants

The first applicant, stated, inter alia :

“...while he [referring to the police officer] was taking me to the police van, a scuffle started as many people gathered around. At that moment, the police officers fired six shots in the air to disperse the crowd. I did not see any stones, bottles or pieces of wood being thrown against the van. When the officer released my arm, he launched himself at the group with a truncheon. I escaped and went home...”

Describing the circumstances concerning the fight with Z.S., the fourth applicant stated, inter alia :

“...while I was pulling S. aside, Z.S. punched me once in the face...I think that there were around 40 or 50 people at the scene...”

( f ) Extracts from the transcript of the hearing of 22 October 1999 at the trial of the first and fourth applicants

The fourth applicant, inter alia , stated:

“...It is not true that he [Z.S.] did not hit anyone. He hit me with his elbow in the chest and punched me in the left eye. I felt intense pain, I found a bottle and struck Z.S. over the head...I had blood in my eye from Z.S. ’ s punch and could not see...”

Mrs P.S. identified the first applicant as one of the attackers of her husband describing him as a person “with long hair and dressed in black”. The first applicant confirmed that he had long hair and had been wearing black clothes.

( g ) Extracts from the transcript of the hearing of 25 October 1999 at the trial of the first and fourth applicants

Mr D.K., an eyewitness, stated, inter alia :

“...a large group of Roma gathered...they started to throw stones and bottles at the police officers who had arrived at the scene. I think that one of the officers concerned fired to restore order...”

Mrs N.J. , an eyewitness, stated, inter alia :

“...Z.S. firstly hit D. [the fourth applicant] in the eye and then D. hit him with a bottle on the back of the head...”

3. The criminal proceedings against the first and fourth applicants

On 9 September 1998 the Ministry filed a criminal complaint against four persons, including the first and fourth applicants, for assault.

On 28 April 1999 the public prosecutor lodged an indictment with the court alleging assault ( насилство ) against Z.S. under Article 386 of the Criminal Code. It was noted in the indictment, inter alia , that around a hundred people had witnessed the incident.

On 8 November 1999 the Štip Court of First Instance found the first and fourth app licants guilty of taking part in the fight and sentenced them to six and eight months ’ imprisonment respectively. It acquitted a co-defendant , M.J., as he had attempted to separate those involved. The court admitted a considerable amount of evidence including oral evidence from the accused, Z.S. and his wife; evidence from nine eyewitnesses and two doctors concerning Z.S. ’ s injuries; and a medical certificate of 2 August 1998 on Z.S. The court established that S.U., one of the accused, had left the restaurant at around 11.30 p.m. While under the influence of alcohol he went out into the street and stopped the car in which Z.S. and his wife were travelling. S.U. immediately started to hit the car. When Z.S. got out, S.U. attacked him with his fists and kicked him. Shortly afterwards, the first and fourth applicants joined in, battering Z.S. with their fists and a glass bottle and kicking him all over his body. Z.S. had sustained injuries to his head, cuts to his finger and elbow, bruising to his face and had damage to eight teeth . The court rejected the first applicant ’ s defence that he had not been involved in the quarrel as contr ary to the evidence. It found unsubstantiated the fourth applicant ’ s argument that he had been involved in the fight with Z.S. because the latter had hit him in the eye, as no evidence or medical certificate had been produced in support of that allegation.

On 15 January 2000 the first-instance decision became final as no appeal had been lodged within the statutory time-limit. According to the applicants, they did not appeal against the decision as the trial judge ’ s lack of sympathy with their allegations of ill-treatment and repeated intimidation by the police gave them little hope that they would have any prospect of success on appeal.

4 . The criminal investigation into alleged police brutality

On 11 August 1998 the applicants filed a criminal complaint ( кривична пријава ) through their legal representative with the Å tip p ublic p rosecutor ’ s o ffice ( Основно Јавно Обвинителство Штип ) against the Ministry under Article 142 of the Criminal Code. It was stated in the complaint that after the fight with Z.S. a large group of police officers had arrived and beat en the guests in the restaurant with their truncheons and fists and kicked them . The applicants alleged that some of the guests had been tied up and beaten at the police station the following day. They also complained that the officers concerned had used force to extract confession s from some of them concerning their involvement in the fight with Z.S. They said that they had produced photo graph s and a medical certificate in support . They also invited the public prosecutor to take statements .

On 20 August 1998 the applicants provided the public prosecutor with further photographs as evidence of the police abuse.

On 2 September 1998 they submitted written statements about the events. Three of the applicants stated that the officers concerned had insulted their ethnic origin.

The first applicant stated, inter alia :

“... [after my release from custody] I wanted to see a doctor, but assumed that, as with the others, I would not be admitted to the hospital. We have all had to put up with the pains ...”

After being taken to hospital after the incident, the third applicant stated, inter alia :

“... a gynaecologist examined me and sent me home. He told me to visit a doctor on the following Tuesday...”

The fourth applicant stated, inter alia :

“...After I was released from custody, I went to the Emergency Unit as I felt unbearable pains all over my body. There, they refused to give me medical care as I had no funds. I was told that (medical services) for injuries sustained in a fight have to be paid for...”

The fifth applicant stated, inter alia :

“... [after his release from custody]...After several hours, I went to the Å tip Medical Centre because of the unbearable pains all over my body. They did not want to examine me, nor did they issue a medical certificate as I had no funds to pay...”

On 30 September 1998 the local p ublic p rosecutor ’ s o ffice requested information concerning the incident from the Ministry through the State p ublic p rosecutor ’ s office. On 13 October 1998 the State p ublic p rosecutor ’ s office transmitted this request to the Ministry. On 11 November 1998 the local police submitted to the central police authority all the material relating to the incident.

As the public prosecutor failed to respond to the applicants ’ complaint for almost seven months, the applicants ’ representative wrote to the Minister of the Interior on 10 March 1999 informing him about the case.

As there was no response from the Ministry or the public prosecutor either on 26 October 2000 the applicants sent another letter to the latter enquir ing about progress in their case .

In a letter dated 28 November 2000 the public prosecutor replied that on 30 September 1999 and a later date his office had requested the Ministry to take steps to identify the offenders, but had not received a reply .

The applicants received no information or acknowledgement about the action that had been taken by the competent national prosecuting authorities in relation to their complaint of torture by police officers.

B. Relevant domestic law

Article 110 § 3 of the Constitution ( Устав на Република Македонија ) provides that the Constitutional Court has jurisdiction to safeguard the freedoms and rights of individuals and citizens relating to opinion, conscience, thought and public expression of thought , political association and activities , and the prohibition of discrimination on the grounds of sex, race, religion or national, social or political affiliation.

Rule 51 of the Rules of Procedure of the Constitutional Court ( Деловник на Уставниот суд ) (“the Rules”) provides that a person who considers that any of his rights or freedoms set forth in Article 110 of the Constitution has been violated by an individual decision or act may seek redress before the Constitutional Court within two months from the adoption of the final individual decision or of his becoming aware of the act, but no later than five years from the da te of the decision or act .

Rule 56 stipulates that in a decision for the protection of rights and freedoms, the Constitutional Court must determine whether there has been a violation and, depending on the circumstances of the case, quash the individual decision or order the act causing the violation to cease or else dismiss the request.

Rule 82 provides that in a decision for the protection of rights and freedoms, the Constitutional Court shall determine how the consequences of the individual decision or act violating those rights and freedoms shall be remedied .

Article 142 of the Criminal Code lays down that anyone who, in the performance of his or her duty applies force, makes threats or uses some other unauthorized or illegal means, with the intention of extracting a confession or some other statement from an accused, witness, expert or any other person, shall be liable on conviction to a term of imprisonment of between three months and five years. If the extraction of the confession or statement is accompanied by severe violence or produced particularly damaging consequences for the accused in the criminal proceedings , the minimum term of imprisonment shall be at least one year.

3. Criminal Proceedings Act ( Закон за кривичната постапка)

Section 16 of the Criminal Proceedings Act (“the Act”) provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences for which only private charges may be brought , the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party acting as a subsidiary prosecutor under the conditions specified in the Act.

Section 17 of the Act sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality).

In accordance with section 42 of the Act , in discharging this statutory right and duty, the public prosecutor is empowered to take measures to detect crime, to identify the perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions.

Section 56 of the Act provides, inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that he may conduct the prosecution himself.

Section 144(1) of the Act provides that the public prosecutor must dismiss the criminal complaint if the act reported is not a criminal offence subject to ex officio prosecution , the statute of limitations has expired , the offence has been amnestied or pardoned or other circumstances exist which preclude prosecution , or that there is no reasonable suspicion that the person in question committed the offence. The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within eight days (section 56) and, if the complaint was filed by the Ministry of the Interior, shall also notify the Ministry accordingly.

Section 144(2) of the Act provides that if the public prosecutor is unable to establish from the criminal complaint whether or not the allegations set out in the complaint are credible, or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation, or if he has merely learned of rumours that a crime has been committed, particularly where the perpetrator is unknown, he shall, if he is unable do so alone or through other authorities, request the Ministry of the Interior to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor may at any time require the Ministry of the Interior to inform him about the measures taken.

Section 148 of the Act provides, inter alia , that when the perpetrator of a crime is unknown, the public prosecutor may request the Ministry of the Interior to take certain investigative measures even before the investigation has been formally opened if the circumstances of the case make it advisable.

Section 150 of the Act provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence.

4 . Internal Affairs Act of 1995 ( Закон за внатрешни работи )

Section 34 of the Internal Affairs Act (“the Act”) entitles authorised officials to use coercive measures as set forth in a Government regulation for the purposes of, inter alia , restoring order which has substantially broken down, overcoming the resistance of a person who undermines order or who is to be arrested, repelling an attack or moving a person who refuses to comply with their orders.

Section 38 of the Act provides that the commanding officer must assess whether the use of coercive measures or firearms was reasonable, justified and proper.

5. Instructions on the Use of Coercive Measures or Firearms ( Уредба за употреба на средства на присилба и огнено оружје)

Paragraph 3 of the Instructions on the Use of Coercive Measures or Weapons (“The Instructions”) permits authorised officers to have recourse to coercive measures in the exercise of their duties when the required objective cannot be otherwise achieved.

In accordance with paragraph 6 of the Instructions, medical assistance is to be provided as soon as possible to a person who has sustained injury as a result of the use of coercive measures or firearms. His or her family must be informed.

5.1. T he use of rubber batons and physical force ( Употреба на гумена палка и на физичка сила)

Paragraph 11 of the Instructions entitles authorised officers, following a warning, to use a rubber baton or to have recourse to physical force when, inter alia , it is necessary to overcome the resistance of a person undermining order, or is to be arrested or detained or repel an attack or to apprehend a person who refuses to comply with an order.

Paragraph 27 of the Instructions requires an authorised officer who has used a coercive measure or firearm to submit a written report to a superior officer, who will then assess whether the use of the coercive measure or firearms was reasonable, justified and proper.

Paragraph 28 provides, inter alia , for a commission to be set up to consider the circumstances when coercive measures or firearms have been used against more than one person, with the task of preparing a report on whether the use of coercive measures or firearms was reasonable, justified and proper.

COMPLAINTS

The applicants complained under Article 3 of the Convention that they had been subjected to acts of police brutality amounting to torture, inhuman and /or degrading treatment in the restaurant and in police custody. They also complain ed under Article 3 about the national authorities ’ failure to carry out an effective official investigation capable of leading to the identification and punishment of the police officers responsible .

The applicants complained under Article 13 of the Convention read in conjunction with Article 3 that the failure of the national authorities to carry out an effective official investigation constituted a separate violation under those provisions .

The applicants also complained under Article 14 of the Convention read in conjunction with Articles 3 and 13 that the ill-treatment they had suffered and the national authorities ’ subsequent refusal to carry out an effective official investigation were in part due to their ethnic origin. They based their allegations on the nature of the incident (a brutal police assault on Roma men, women and children gathered in the restaurant) and the explicit racist language used by the officers during the raid and subsequently at the police station. According to the applicants, these allegations had to be examined in the context of the national authorities ’ repeated reluctance to remedy instances of police brutality against Roma. They sought redress for the discrimination suffered and provided extracts from various reports on the subject by international monitoring organi s ations.

THE LAW

The applicants complained that they had been assaulted and ill-treated by police officers, that there had been no effective investigation into their complaints or effective remedy provided for the failure to investigat e. They added that the reason for their ill-treatment and the lack of an investigation into their complaint of police brutality was that they were of Roma origin . They relied on Articles 3, 13 and 14 of the Convention , which provide:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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 Government ’ s objection of non-exhaustion of domestic remedies

1. The parties submissions

The Government submitted that the applicant s had not exhausted domestic remedies in respect of their complaints of ill-treatment. They pointed out that the Ministry had issued regulations governing the use of force and had monitored compliance . Rules provided for breaches of the regulations to be investigated and disciplinary sanctions imposed on offending officers, as well as for compensation to be paid to the injured party. The applicant s had not , however , ma d e any written or oral complaint s to the chief of police or directly to the Ministry or its Sector for Internal Control. The procedure before the latter was objective and impartial. If they had raised the matter before the chief of police, there would have been some prospect of their allegations being investigated speedily.

They also asserted that the applicant s had failed to bring the alleged police brutality to the attention of the Ombudsman, who was empowered to propose the initiation of disciplinary proceedings and to lodge criminal complaints with the public prosecutor. They argued that the submissions of the Association of Roma people “Cerenja” on the incident had not been filed on behalf of the applicants, and accordingly could not be considered to constitute a proper request. T he Government further maintained that the applicant s had not filed a civil lawsuit claiming damages.

The applicant s submitted that none of the remedies suggested by the Government could be regarded as effective within the meaning of the Convention. Concerning the proceedings before the Ministry, they referred to the 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 ( “the CPT ” ) from 21 to 26 October 2001, in which it had been noted that proceedings before the Sector for Internal Control were not transparent because “complaints against the police are investigated by their fellow officers, apparently without any form of external supervision or control”. In this respect, the applicants referred to the statistical data obtained by some domestic non-governmental organisations of a trend of reported cases of alleged police brutality against Roma. In addition, it was noted that the Sector for Internal Control had taken action in only six of a total of twenty-three complaints submitted in 2004. Furthermore, the Ministry had found human rights violations in only three out of seventy-one complaints that had been lodged with it in 2004 and 2005. The applicants further maintained that even though they had not notified the local police of the alleged police brutality, they had filed a criminal complaint with the public prosecutor eight days after the incident. They argued that they could not be held responsible for the Ministry ’ s failure to take action after their allegations were brought to its attention by the public prosecutor. The relevant authorities had chosen not to take any action . In any event, they referred to the “CPT Standards” (see CPT/Inf/E (2002) 1) which provided that a disciplinary procedure could only be an additional type of redress and could not replace the need for an investigation carried out by an independent prosecutor.

As regards the Government ’ s affirmation concerning the effectiveness of the remedy before the Ombudsman , the applicants noted that seeking redress from the Ombudsman could not provide appropriate redress as his decisions were non-binding. Furthermore, as they already filed a criminal complaint, there had been no point in initiating a process that would have allowed the Ombudsman to take the same action.

Concerning the civil claim for damages, the applicants argued that the Civil Proceedings Act did not provide for a civil lawsuit to be filed against an unidentified defendant. In addition, amendments that had been made in 2002 to the Law on Obligations abolished State liability for damage caused by criminal offences by unidentified persons.

They concluded that the only legal remedy capable of providing effective and adequate redress for victims of Article 3 violations was the lodging of a criminal complaint with the public prosecutor, a remedy which they had used in the present case.

2. The Court ’ s assessment

(a) The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52 ; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).

The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others , cited above, p. 1211, § 69 ; and Aksoy, cited above, p. 2276, §§ 53-54).

The Court would note that the possibility of initiating a disciplinary or internal inquiry into alleged ill-treatment cannot generally be regarded as an effective remedy in this context. Turning to the present case, in so far as this involves a complaint about the police, special internal departments such as the Sector for Internal Control or institutions hierarchically linked to the alleged perpetrators lack the necessary independence (see Jašar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01, 11 April 2006) .

Concerning the Government ’ s argument that the applicant s failed to refer the matter to the Ombudsman, the Court would refer to its decision in the Jašar case, cited above, in which it adhered to the Council of Europe ’ s recognition of the prominent role played by the ombudsman in the protection of human rights and freedoms , namely, as has been consistently stated: “ in principle the ombudsman cannot be considered as an effective remedy, in particular due to the non-binding nature of the advice given. The Court notes that as a rule the ombudsman is not empowered to address binding decisions to the Government, but only to formulate recommendations ” (see Jašar, decision cited above ) .

In the present case, the Court observes that even assuming that the Ombudsman w ould have taken the most stringent measure available to him and requested the public prosecutor to establish the criminal responsibility of those concerned, it does not appear that the applicant s could reasonably have expected this to afford a more eff ective remedy than the complaints he had already lodged with the prosecuting authorities.

The Court reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 33, ECHR 1999 ‑ III).

The applicant s in this case made a criminal complaint to the public prosecutor, thereby initiating a procedure that was capable of leading to the identification and prosecution of the alleged perpetrators of the assaults. They therefore brought the alleged police brutality to the attention of the authorities, placing them under a duty to carry out an appropriate investigation . As the public prosecutor did not formally reject the applicants ’ c riminal complaint, they could not take over the prosecution as a subsidiary prosecutor. Moreover, private criminal proceedings could not be instituted where the perpetrator was unknown, as was the case with the appli cant s ’ criminal complaint. In the normal course of events such a complaint would be regarded as fulfilling the requirements of Article 35 § 1 of the Convention in respect of their complaints under Article 3 and , in the absence of a criminal prosecution in connection with their complaints, the applicants were not required to embark on another attempt to obtain redress by bringing a civil action for damages (see, mutatis mutandis, Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998 ‑ VIII, p. 3286, § 86) .

This part of the application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention. Accordingly, the Government ’ s objection must be rejected.

(b) In respect of the applicant s ’ complaint of discrimination, t he Court observes that the applicant s failed to mention the alleged racial comments made by the police officers in their criminal complaint. It was only in their statements of 1 September 1998, which were subsequently submitted to the public prosecutor, that three of the applicants alleged that the officers concerned had insulted their ethnic origin. However , the Court notes that the Constitutional Court has the jurisdiction to protect the rights and freedoms of the individual and citizen relating to the prohibition of discrimination and to decide such issues in substance. The Constitutional Court is required to provide redress if it finds that a person has been discriminated against by an individual decision or act. Therefore, it appears that a request for the protection of freedoms and rights ( барање за заштита на слободите и правата) on the grounds of prohibition of discrimination provided an avenue for obtaining redress for their allegations of racial or ethnic discrimination and that the applicant s should have exhausted this remedy before making this complaint to the Court (see Sulejmanov v. the former Yugoslav Republic of Macedonia (dec.), no. 69875/01, 18 September 2006) .

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. The substance of the case

1. The parties ’ submissions

a. The Government

The Government submitted that the force used by the police officers to subdue the active resistance of the large group of Roma was reasonable, justified and proper. Referring to the Internal Affairs Act, they argued that officers were empowered to have recourse to physical force when it was strictly necessary and proportionate and if other methods had not proved effective. They stated that the officers concerned had used force of the type and degree that had been absolutely necessary to suppress the Roma ’ s active, unlawful and direct resistance, in particular as the Roma had disobeyed police commands and had used dangerous objects (stones, bottles and wooden sticks) against the officers. They further maintained that the officers had initially attempted to restore order without resorting to physical force (by issuing a warning and an order) and had used the mildest form of coercive measure (involving the use of physical force and a rubber baton) only subsequently in the performance of their duty. The Government concluded that the applicable principles concerning the force used had been respected: the aim had been to subdue resistance; the officers had used a lawful coercive measure; force had been used only because the resistance could not have been otherwise subdued and the intervention could not be delayed; the measure was used in accordance with law and had continued for as long as the reasons that had prompted the intervention persisted.

The Government disputed the first applicant ’ s allegations that he had been beaten while in police custody so that he would confess to involvement in the fight with Z.S. They submitted that the first applicant had failed to challenge at his trial the admissibility of the statement given by him to the police. They argued, furthermore, that the Ministry had not needed a confession before filing a criminal complaint against him as there had been other evidence to corroborate the allegation that he had been involved in the fight. They further argued that an accused could always deny what he or she had stated earlier; that the courts were required to rely on other evidence in addition to any confession; that the statements given in the pre-trial proceedings before other bodies could not be used at the trial; and the unlawfully obtained evidence could not be used as a ground for a court decision.

The Government submitted that the first and fourth applicants had sustained their injuries in the fight with Z.S., as established by the national court. Referring to the various statements that had been given in the course of the criminal proceedings against the first and fourth applicants, they maintained that the third applicant, assuming her to be the person referred to in the medical records, had sustained her only established injury, bruising to the head, during her active participation in the disturbance against the police. They challenged her complaint that she had not been provided with medical care as being contrary to the hospital records. They noted that the second and fifth applicants had been apprehended by the police for involvement in the disturbance and not in the fight with Z.S. According to the medical records, neither had requested medical assistance. Concerning the injuries that the second and fifth applicants had allegedly sustained, they stressed that they could have been inflicted only as a result of the use of reasonable force to subdue the disturbance in which they had been actively involved. They concluded that neither the public prosecutor nor the investigating judge, who had questioned the applicants after the interrogation by the police, had noticed any injuries. If they had done so, they would have taken appropriate action.

As regards the allegations that no medical assistance was given to the Roma on the night of the incident or during the course of the following day, the Government referred to the national legislation requiring anyone injured as a result of their involvement in the commission of a criminal offence to cover the medical expenses related to the treatment of their injuries, as such cover was not included in the compulsory medical insurance. In that respect, the Government concluded that the applicants should have paid for the medical services if they required treatment. For this reason, the fifth applicant was refused medical assistance after the medical personnel had verified that the injuries did not endanger his life or health. Reiterating their reservations regarding the identity of the third applicant in relation to the medical records, they averred that she had received medical care as she had been admitted as an “urgent case”, although she had been required to pay for the services for the reasons mentioned above.

Concerning the alleged lack of an effective investigation, the Government referred to their submissions concerning the non-exhaustion of domestic remedies. They added that the public prosecutor had made the necessary enquiries of the Ministry, but that the latter had failed to provide the requested information. As Ministry records were destroyed after three years, the person responsible for the Ministry ’ s failure could not be identified.

b. The applicants

The applicants disagreed with the Government ’ s arguments that the force used by the officials had been necessary and proportionate. Referring to their version of events, they recalled that ten police officers had arrived at the scene and had started to beat the guests in the restaurant for no apparent reason. They challenged the Government ’ s argument that the intervention had been justified because of, inter alia , the “unmotivated and brutal attack on Z.S”, as the police officers concerned had arrived at the scene after the fight and therefore could not have been aware of its nature. They further maintained that the criminal charges against the first and fourth applicants had been brought two months after the applicants ’ complaint was filed with the public prosecutor. Moreover, no criminal proceedings were instituted concerning the alleged disturbance. The applicants noted that the police reports contained many inconsistencies concerning the order of the coercive measures used: whether shots were fired in the air before or after other measures of coercion had been taken; who had fired the weapons and how many shots had been fired. They argued that the use of force had been disproportionate and unnecessary, as the police used batons and physical force against the women and the children, who were in the front line of the attack and in direct contact with the officers concerned.

The first applicant stated that he had raised the matter of police brutality while in custody, but that the judge had not given any weight to his statements. Referring to reports by human rights organisations, the applicants further maintained that it had been a practice in the former Yugoslav Republic of Macedonia for judges and prosecutors to ignore situations in which there had been clear and numerous indications that the prosecution ’ s case was based on a forcibly extracted confession. They also pointed out inconsistencies in the police records about who had been detained in the police station.

The applicants further criticized the State ’ s policy regarding medical assistance in cases such as the present one. They considered it unethical for medical staff to be put into the position of having to decide whether to provide services based on the guilt or innocence of those concerned. They considered it particularly striking that the police officers had received the necessary medical care and had been issued with a medical certificate.

The applicants submitted that the police had violated their own rules as they had failed to provide medical treatment to those who had suffered injuries as a result of the use of force. In addition, they stressed the inconsistency of the Government ’ s assertion that those arrested or involved in the fight had not requested medical assistance while at the same time admitting that the third and fifth applicants had done so.

Concerning the third applicant ’ s alleged participation in the disturbance and the injuries she had sustained, it was argued that it could not be sufficiently established that she was the pregnant woman to whom the eyewitnesses had referred in their statements. The applicants maintained that there may have been more than one pregnant woman in the group of 60 to 80 people.

They disagreed with the Government ’ s assertion that the second and fifth applicants could have sustained their injuries only as a result of the police intervention to overpower the resistance put up by the group as, according to the police records, they had also been taken into police custody. Even assuming that all the applicants, except the third one, had sustained some injuries before being taken into police custody, it did not exclude the possibility that they were severely ill-treated during their interrogation at the police station.

Concerning the procedural obligation under Article 3, the applicants stated that the prosecuting authorities of the respondent State had failed to take any action to identify the perpetrators or to investigate their allegations of ill-treatment. As the public prosecutor had not formally rejected their criminal complaint, they had been unable to take over the prosecution as subsidiary complainants. Moreover, they argued that the national rules concerning the internal investigation of the use of force had not been observed, as no commission had been set up within the Ministry to consider the incident even though force had been used “against several persons” (see the section on “relevant domestic law” above).

They further maintained that the State ’ s failure to investigate their allegations of ill-treatment constituted a separate violation of their right to an effective remedy under Article 13, read in conjunction with Article 3 of the Convention. They also reiterated their complaints under Article 14 taken together with Articles 3 and 13 of the Convention.

2. The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaints under Articles 3 and 13 raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants ’ complaints under Articles 3 and 13 of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Peer Lorenzen Deputy Registrar President