Communicated on 10 June 2015

FIRST SECTION

Application no. 78241/13 Dževrije SELAMI and others against the former Yugoslav Republic of Macedonia lodged on 6 December 2013

STATEMENT OF FACTS

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

A. The circumstances of the case

The facts of the case, as submitted by the applicants (see Appendix) , may be summarised as follows.

The first applicant is ex-wife of S.Selami who died on 6 April 2011 . The remaining applicants are the children of the first applicant and the late S.S elami .

On 30 January 2004 S.Selami claimed that the respondent State reimburse him for the pecuniary and non-pecuniary loss in relation to his unlawful detention between 19 September and 10 December 2002, as well as for the serious injuries that he had sustained allegedly at the hands of police between 26 and 28 August 2002. He claimed that the police had detained him on 26 August 2002 and held him in several police stations in Skopje where he had been severely beaten on account of his alleged involvement in unlawful activities against the State. He had sustained serious injury on his head, had a brain haemorrhaging and fell into a coma. The police had brought him to Skopje Hospital, where he had undergone a brain surgery. After he had emerged from coma, on 19 September 2002 he had been taken to prison custody, which had been meanwhile ordered by an investigating judge. He remained in prison custody until 10 December 2002 when he had been released on bail. In support he submitted a medical certificate by Tetovo Medical Centre dated 29 January 2003. The certificate was issued on the basis of available medical material and indicated that the applicant had been in post-surgery state and that he had undergone a medical trepanation of his skull, evacuation of the internal brain haemorrhaging ; that bones on his skull and the tough brain membranes had been seriously damaged; that he had suffered from reduced mobility of all limbs, muscle hypotonia , had fractures on his ribs and column vertebrae. According to the report, those injuries qualified as serious and had permanent effects on the life and body of S.S elami .

At about the same time, S.S elami and the applicants submitted a separate compensation claim on the same grounds as S.S elami ’ s claim (see above). The applicants ’ claim was based on section 190(3) of the Obligations Act which entitles a spouse and children to obtain non-pecuniary damages in case of severe disability of the victim.

Both claims were joined and decided in single proceedings. During the proceedings, the domestic courts commissioned an expert opinion and admitted in evidence extensive medical material issued between 2006 and 2009 by Skopje Hospital and between 1989 and 2003 by relevant medical institutions in Switzerland, concerning S.S elami ’ s earlier injury while at work in Switzerland.

On 22 April 20 1 0 the Gostivar Court of First Instance delivered a judgment in which it partly granted S.S elami ’ s claim for non-pecuniary damages for emotional suffering due to “ unjustified de tention between 19 September and 10 December 2002” and awarded him the equivalent to 18,000 euros ( EUR). It dismissed the remaining part of S.S elami ’ s claim. As to the applicants ’ claims , the court held that S.S elami ’ s disability had not been severe, as required by section 190(3) of the Obligations Act .

The court established that on 31 August 2002 an investigating judge of Skopje Court of First Instance (“the trial court”) had opened an investigation against S.S elami and three other persons on account of their alleged involvement in enemy activities against the State and ordered for their pre-trial detention. The investigating judge specified that S.S elami had been hospitalised and that t he detention order would be enforced as soon as he would become available. Subsequent orders providing for further extension of S.S elami ’ s detention specified that he had been deprived of his liberty on 18 September 2002 and that until 18 October 2002 he had served the detention order in Skopje Hospital. In th e act of indictment of 14 November 2002, S.S elami had been accused that he had joined a terrorist group which aim had been to organise terrorist attacks on police in order to endanger the security and constitutional order of the State. On 10 December 2002 S.S elami was released on bail on account inter alia of “serious deterioration of (his) health”. With a decision of 9 September 2003, the trial court had stayed the criminal proceedings against S.S elami since the prosecution had withdrawn the indictment.

On the basis of available medical evidence, the Gostivar Court of First Instance established that in 1985, while at work in Switzerland, S.S elami had fell and injured his spine and right leg, which had become dysfunctional. As a result of that injury, he had been declared labour invalid in Switzerland, he had used crutches and had used handicap-adapted car . In the incriminating event of 26 August 2002, S.S elami had sustained strong and intensive physical pain, as well as strong emotional pain and humiliation while being beaten. He had sustained serious head injury, which affected, though not permanently, the left side of his body and provoked other negative psychological effects. After the surgery, S.S elami had been into a coma and had been connected to a ventilator for assisted breathing. He recovered after three weeks. Relying on the statements of S.S elami , the first and fourth applicants, the court established that in August 2002 police had searched their house. They had asked S.S elami to come with them in the Gostivar police station. There, he had been questioned in relation to an incident in which two policemen had been killed. He had denied having had any connection with that incident. He had been taken with a police car to Skopje, where he had been placed in “a cellar or a garage” and beaten. The applicants had not been aware of S.S elami ’ s whereabouts for about two weeks, after which they had discovered that he had been hospitalised in Skopje Hospital.

On 6 April 2011 S.S elami died .

On 24 August 2012 the Skopje Court of Appeal dismissed appeals by S.S elami and the applicants. It accepted an appeal by the Solicitor General and overturned the lower court ’ s judgment. It awarded S.S elami the equivalent to approximately EUR 9,800 for non-pecuniary damages due to “unjustified detention between 19 September and 10 December 2002”. The court inter alia stated:

“The first-instance court established in the impugned judgment [that] ... in relation to the intensity and duration of the physical pain sustained, the experts are of the opinion that ( S.S elami ) had experienced intensive pain when he had been physically attacked on his head and body ... every blow caused physical pain of different intensity, accompanied with swelling and bruises on his body ... Regarding the intensity and duration of the fear, the experts are of the opinion that when arrested and physically assaulted and hit, in particular in his head, ( S.S elami ) had intensive unpleasant emotional experiences of primary fear ... which persisted until he had fell into a coma ... Regarding emotional pain due to unjustified deprivation of liberty and detention, experts are of the opinion that the basis for an award of non-pecuniary damage ... is the time calculated as of 26 August 2002 ... when ( S.S elami ) had been arrested by police ... transferred to other police stations where he had been subjected to serious physical ill-treatment and beaten, which caused serious bodily injury ...

This court considers that the (above) facts were correctly established .”

The court rejected the applicants ’ arguments that the first-instance court had not decided the claim for reimbursement of damage sustained as a result of S.S elami ’ s ill-treatment. In this connection it stated that:

“This court considers that the emotional suffering for unjustified detention is a single type of damage which includes all detrimental effects on the victim, including his physical ill-treatment ...”

As to its finding regarding the amount of compensation, the court stated:

“In assessing the amount of the award, this court took into consideration all circumstances of the case, including the duration of the unjustified deprivation of liberty, the reputation which the plaintiff had in the family and environment, that during the unjustified deprivation of liberty he had been physically ill-treated and sustained serious bodily injury ... that he was hospitalized, operated on ...”

With a final decision of 31 October 2012, delivered by a notary public, the fourth applicant was declared a single heir of S.S elami ’ s entitlement to obtain compensation subject to the impugned proceedings.

On 1 November 2012 the applicants lodged an appeal on points of law against the judgment of the Skopje Court of Appeal. The fourth applicant, as the statutory successor of the late S.S elami , lodged the appeal in his name and on behalf of S.S elami .

On 11 July 2013 the Supreme Court dismissed the applicants ’ appeal on points of law finding no grounds to depart from the established facts and the reasoning given by the lower courts.

C OMPLAINTS

Without invoking any Article of the Convention, t he applicants complain that “the compe nsation awarded to the late S.S elami was too low, given his unjustifi ed det ention and the type and nature of his serious bodily injur y, which he sustained while detained as a consequence of which he died”. They further complain that “ S.S elami was not awarded any compensation for the non-pecuniary loss sustained as a resul t of the serious bodily injury and for the pecuniary damage”. Lastly, they complain that “the applicants ’ compensation claim was dismissed, notwithstanding that they were entitled under the applicable law to an award of non-pecuniary damages .”

QUESTIONS TO THE PARTIES

1. Can the applicant s in the present case claim to be victim s of a violation of the Convention, within the meaning of Article 34 of the Convention given S.Selami ’ s treatment by police as established by the domestic courts in the impugned proceedings ? In particular,

(a) can they claim to be victims of a violation of their rights under Article 3 of the Convention? Furthermore, was there any other avenue that the applicant s could have exhausted with regards to their rights under Article 3 of the Convention ?

(b) can the applicants complain on behalf of S.Selami of a violation of his rights under Articles 3 and 5 of the Convention? The parties are invited to comment as to whether such a standing could be attributed to all applicants or only to the fourth applicant ( Mr Nedžmi S elami , see Appendix). They are also invited to state their view as regards the applicants ’ allegations that S.Selami ’ s death was linked to the treatment to which he had been subjected in August 2002.

2. If so, did the award made to S.Selami , as explained in the judgments delivered in the impugned proceedings , remove the applicants ’ victim status in relation to the alleged violations of their rights under Article 3 and of the rights of S.Selami under Articles 3 and 5 § 5 of the Convention? Has there been a violation of these Articles of the Convention?

Appendix