Communicated on 19 March 2020 Published on 18 May 2020

FIRST SECTION

Application no. 44033/17 D.H. and Others against North Macedonia lodged on 17 June 2017

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

The circumstances of the case

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

The applicants are sex workers. On the evening of 20 November 2008 they were arrested by the police as part of a group of thirty-two people and taken to a police station where they were detained for twenty hours. They claim that during this time they were not provided with any food, water or access to toilet facilities. The second, third and fourth applicants who were allegedly facing heart problems and drug addiction withdrawal symptoms claim that they were not provided with any medical assistance. While in custody photographs were taken of the applicants and published on the website of the Ministry of Interior, which then appeared in the national media. The applicants claim that their identity in the photographs was not concealed.

The following day an order was issued by an investigating judge, pursuant to which they were taken to a hospital for the purpose of conducting blood tests for sexually-transmitted diseases. The applicants claim that they were forced to undergo the procedure by the police.

They also claim that the media were alerted about their examination and, as a consequence, they were photographed as they entered the hospital building. Photographs and news about the blood testing broke to the national media with titles such as “Prostitutes forced by truncheon to undergo a check-up” ( Курвите со пендрек на преглед ).

The applicants lodged separate requests for examination of the legality of their deprivation of liberty ( испитување на законитост на лишување од слобода ), which were dismissed on 2 February 2008 by a judge of the Skopje Criminal Court of First Instance ( Основен суд Скопје I ) who found that none of the applicants ’ rights had been violated during their arrest. This decision was subsequently upheld by a three-judge panel of the same court.

On 4 December 2009 six members of the group, including the second applicant, were convicted of spreading infectious diseases ( пренесување заразни болести ) and sentenced to suspended prison sentences. There is no information available to indicate whether this judgment became final.

On 17 June 2009 fourteen members of the group, including the applicants, lodged a civil claim against the Ministry of Interior, Skopje Criminal Court and the hospital, seeking compensation for having been ill-treated by the police and having their right to privacy violated. In their claim they described their allegations as outlined above and relied, inter alia, on Articles 3 and 8 of the Convention. The claim against the hospital was subsequently withdrawn.

On 25 July 2011 the Skopje Civil Court of First Instance ( Основен суд Скопје II Скопје ) upheld their substantive claims and partially upheld their claim for damages, and awarded them compensation in the amount of 90,000 d enars (MKD) each.

On 24 October 2013 the Skopje Court of Appeal ( Апелационен суд Скопје ) quashed the judgment and remitted the case.

On 28 May 2015 the Skopje Civil Court of First Instance again upheld their substantive claims and awarded each of them compensation ranging between MKD 90,000 and 130,000 per claimant . The court, relying on Article 8 of the Convention, found that the police had failed in their duty to protect the privacy of the applicants by unduly exposing them to the media on the day when they were taken to the hospital. It further held that a violation of the applicants ’ private life as protected under that Article of the Convention had occurred on account of photographs of the applicants being taken at the police station and subsequently published on the website of the Ministry of Interior. This had, in turn, unduly invited attention to the applicants ’ arrest at a moment when their guilt had not yet been decided and had alerted the media about the time and place that the blood tests would take place the following day. The court further relied on Article 3 of the Convention finding that the applicants had not been provided with food, water or access to toilet facilities for twenty hours during their police custody and that they had been forced to undergo blood tests the following day. To reach the above findings the court relied on the applicants ’ statements, statements of the police officers who were on duty on the relevant day, expert opinions about the non-pecuniary damage suffered by the applicants, excerpts from the media and other evidence.

The respondents appealed.

On 28 November 2016, after holding a public hearing in the presence of the third applicant and the applicants ’ representative, the Skopje Court of Appeal overturned the judgment and dismissed the applicants ’ claim. Relying on a report from the National Directorate for Personal Data Protection and a report from the Ministry of Interior ’ s Department for Control and Professional Standards, that court held that in the photographs that were published on the Ministry of Interior ’ s website the applicants ’ faces had been blurred and no personal information had accompanied them. It held that the applicants had volunteered for the blood tests. Furthermore, it held that although the applicants may have experienced thirst and hunger during police custody, given that it was already established that their arrest did not reveal any violation of their rights (referring here to the decisions of 2 February 2008), their claim had been unfounded. Lastly, that court held that the police had no responsibility with regard to exposing the applicants to the press during their visit to the hospital. This judgment was served on the applicants ’ representative on 20 December 2016.

The applicants subsequently lodged an appeal on points of law ( ревизија ) with the Supreme Court ( Врховен суд ) on 18 January 2017.

The application was lodged with the Court on 17 June 2017.

The Supreme Court rejected the appeal on points of law on 15 January 2019 holding that the value of each individual claim did not reach the statutory threshold required for its examination on the merits by that court.

COMPLAINTS

The applicants complain under Articles 3, 6 and 8 of the Convention that they had been deprived of food, water and access to toilet facilities during police custody; that their right to private life was violated in that photographs were taken of them during custody and subsequently published online; and that they were deprived of the right to a fair trial on account of lack of reasons and a violation of the principle of adversarial trial.

QUESTIONS TO THE PARTIES

1. Were the applicants subjected to treatment contrary to Article 3 of the Convention during police custody? In particular:

(a) Were they deprived of food, water and access to toilet facilities during police custody (see Soare and Others v. Romania , no. 24329/02 , §§ 221-222, 22 February 2011 )?

(b) Were the second, third and fourth applicants provided with the necessary medical care, given the third applicant ’ s allegation that she was suffering from a heart condition, and the second and fourth applicants ’ allegations that they were experiencing symptoms of drug addiction withdrawal?

2. Did the applicants have a fair hearing in the determination of their civil rights, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Were the applicants able to comment on the evidence relied on by the Court of Appeal , in particular, the report of the National Directorate for Personal Data Protection of 8 January 2009 and the report of the Ministry of the Interior ’ s Department of Control and Professional Standards of 26 November 2008?

(b) Did the Court of Appeal provide relevant and sufficient reasons for its judgment regarding the applicants ’ allegations of treatment contrary to Article 3 of the Convention while in police custody and publication of photographs of them on the website of the Ministry of the Interior?

3. Has there been an interference with the applicants ’ right to respect for private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference justified in terms of Article 8 § 2? In particular:

(a) Were the applicants forced to undergo testing for sexually transmitted diseases (see Y.F. v. Turkey , no. 24209/94, § 43, ECHR 2003 ‑ IX)?

(b) Were photographs of the applicants taken while in police custody published on the website of the Ministry of the Interior without their consent? Having in mind the applicants ’ sensitive situation, did the police undertake all the necessary measures to protect their right to privacy, particularly during their visit to the hospital?

APPENDIX

No.

Applicant ’ s Name

Nationality

Place of residence

1D. H.

Macedonian/citizen

of the Republic of

North Macedonia

Skopje

2S. A.

Macedonian/citizen

of the Republic of

North Macedonia

Skopje

3I. J.

Macedonian/citizen

of the Republic of

North Macedonia

Skopje

4K. N.

Macedonian/citizen

of the Republic of

North Macedonia

Skopje