Communicated on 28 May 2014

FIRST SECTION

Application no. 60333/13 Lenka NEÅ KOSKA against the former Yugoslav Republic of Macedonia lodged on 20 September 2013

STATEMENT OF FACTS

The applicant, Ms Lenka Neškoska , is a Macedonian national, who was born in 1964 and lives in Skopje. She is represented before the Court by the Helsinki Committee for Human Rights in Skopje. She is the mother of M.N., who was killed at the age of twenty-two in the circumstances described below.

A. The circumstances of the case

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

1. Background to the case

As established in the criminal proceed ings described below, on 6 June 2011 at about 12:20 a.m., I.S., a member of the Special Police Forces Unit ( Единица за специјални задачи ) within the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of parliamentary elections and a local cultural event. The murder happened after M.N. had attempted to climb onto a podium in order to come close to high-ranking politicians. After having been warned by I.S., M.N. ran away. I.S. followed him and, when he got close enough, he hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N. all over his body, despite M.N. ’ s cries for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute, M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was brain haemorrhage. M.N. died at 12:30 a.m.

2. Public reaction to M.N. ’ s death

According to the applicant, due to a number of contradictory statements by the Ministry ’ s officials regarding M.N. ’ s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to express their protest. After the Ministry ’ s spokesperson had announced on 7 June 2011 that a police officer was suspected of being responsible for M.N. ’ s murder, thousands of people took to the streets of Skopje to protest. These protests lasted for forty days and turned into a movement called “Stop police brutality”. On 14 June 2011 over six thousand people signed a protest letter (submitted to the Court) specifying several demands, namely that the relevant authorities establish the truth regarding M.N. ’ s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry ’ s officials.

3. Request for an investigation of M.N. ’ s death

On 21 June 2011 A.N., M.N. ’ s brother, wrote to the Professional Standards Inspectorate within the Ministry of the Interior (the “PSI”), seeking to have it investigate the circumstances surrounding M.N. ’ s death and the actions of the police officers concerned. In this connection he alleged that, according to eyewitnesses, I.S. had murdered M.N. At the relevant time, I.S. had been accompanied by another person in plain clothes, whose identity was unknown. After M.N. died, two police officers, who were in uniform and whose identity was unknown (their identities [Z.J. and P.K.]) were revealed in the course of the subsequent criminal proceedings, see below), had arrived at the scene. The person in plain clothes and the two police officers had unsuccessfully tried to resuscitate M.N. I.S. and the other officers had cleaned up the crime scene with a bottle of water. After half an hour, an ambulance had arrived, but it had left soon after. I.S. had then left the scene. The police officers in uniform had stayed on. According to A.N., the two police officers thus assisted I.S. in committing the crime and failed to report the offence and give details of the perpetrator. They thus prevented a timely reaction by the authorities. The same letter was sent to the Ombudsman.

On 28 June 2011 the PSI replied that I.S. had been on duty on 5 June 2011 between 8 a.m. and 12 p.m. On 6 June 2011 at 12:10 a.m. he had gone, in plain clothes and with a private car, to the centre of the city, where the ceremonies had been taking place. It further described the events that had led to M.N. ’ s death (see above). It also stated that it had passed on to the public prosecutor the identity of a person who had helped I.S. to remove M.N. ’ s corpse from the crime scene and place it in amongst nearby greenery. A public prosecutor and an investigating judge, although notified by the police, had not conducted an on-site inspection after the incident. On 7 June 2011 I.S. had handed himself in at a police station in Skopje; an identity parade had been organised ; the Ministry had submitted a criminal complaint of murder against I.S. to the courts; and an investigating judge had remanded him in custody. On 15 June 2011 the Minister of the Interior had terminated I.S. ’ s employment.

4. Criminal proceedings against I.S.

On 3 October 2011 the public prosecutor lodged an indictment against I.S., accusing him of killing M.N.

On 16 January 2012 the Skopje Court of First Instance (“the trial court”) rendered a judgment, which ran to forty-three pages, in which it found I.S. guilty of murder and sentenced him to fourteen years ’ imprisonment. The court further advised the applicant, who had joined the prosecution, to pursue a compensation claim by means of a separate civil action for damages. The judgment was based on statements given by over thirty eyewitnesses; oral evidence produced by medical experts; expert evidence, photographs; and other documentary evidence.

Z.J. and P.K. stated that before the incident, I.S. had introduced himself as a member of the Prime Minister ’ s security service and told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon after, they saw I.S. chasing M.N. and heard people asking for police assistance. When they arrived at the scene, they saw M.N. lying unconscious. I.S. told them that M.N. had fallen ill ( му се слошило ) and asked that they call the emergency services. Soon after, a third person, whom they did not know, had arrived and together with I.S., had pulled M.N. up and moved him, placing him in amongst nearby greenery in order to enable the ambulance to access the scene easier. Then, I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not known that M.N. had been beaten, as he had not noticed any visible injuries on him.

V.B., who witnessed the incident, confirmed that I.S. had pursued M.N. and hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact; I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had tried to resuscitate him. After the police officers had arrived, he had pulled M.N. up together with I.S. and had moved him and placed him in amongst nearby greenery so that the ambulance would have easier access to the scene. He stayed next to M.N. until the ambulance came. He said that there were no visible injuries on M.N.

At a public hearing held on 9 July 2012 the Skopje Court of Appeal upheld I.S. ’ s conviction and sentence. Accordingly they became final. There is no information whether I.S. challenged his conviction before the Supreme Court by means of an appeal on points of law ( барање за вонредно преиспитување на правосилна пресуда ).

5. Criminal proceedings against Z.J., P.K. ,V.B . and D.I.

On 7 October 2011 a group of citizens, associated with the movement “Stop police brutality”, lodged a criminal complaint with the public prosecutor against unknown police officers, alleging that they had failed to report the killing of M.N., but had assisted instead the perpetrator to commit the offence. The officers concerned had not established the identity of I.S.; they had allowed him to move M.N. ’ s corpse and place it in amongst nearby greenery and to leave the crime scene. According to the applicant, the public prosecutor did not respond to this complaint.

On 12 October 2011 the applicant submitted a criminal complaint accusing Z.J., P.K., V.B. and an unknown police officer of having assisted I.S. in murdering M.N. She accused Z.J. and P.K. with abuse of office, as they had apparently failed to determine the identity of I.S. and instead of apprehending him, they had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the matter to benefit I.S. by moving M.N. ’ s corpse (in amongst the nearby greenery) and not reporting I.S. as the perpetrator of the offence. The unknown police officer (who was later identified as D.I.) was accused of having notified, in error, the public prosecutor and an investigating judge that M.N. had died as the result of drug overdose. As a consequence, both the prosecutor and the investigating judge had not made an on-site inspection after the incident. Accordingly only the police had carried out such an inspection.

On 29 December 2011 the public prosecutor rejected the applicant ’ s complaint, finding no grounds to suggest that the accused (Z.J., P.K., V.B. and D.I.) had committed the offences with which they were charged. The prosecutor found that, on the basis of all available evidence, including the available material in the case file against I.S., Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later; they had not determined the identity of I.S., who had told them that M.N. had felt sick; owing to such information, they had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. in amongst the nearby greenery in order to enable the ambulance to access the scene easier. I.S. had left the scene and Z.J., P.K. and V.B. had stayed until the ambulance had arrived. A report (no. 025084 of 6 June 2011) of the medical staff who had responded to the emergency call recorded that they had established M.N. ’ s death and noticed no visible signs of violence on him.

The prosecutor established that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional failure caused by the imminent need to protect the life of M.N. They had arrived at the scene after the incident and they had not known that M.N. had been killed. As for V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that an offence had been committed. Consequently, it could not be accepted that he had willingly assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his placing amongst the nearby greenery had been aimed facilitating the easier access of the ambulance. The competent officers had called the emergency services and D.I. had informed the control centre , as noted by the medical staff, that the cause of death could not be established, but that it was possible that M.N. had been a drug addict. In such circumstances, the prosecutor established that there was no evidence that the accused had taken any actions with the intention of preventing the perpetrator from being discovered or that they had concealed relevant criminal evidence. On the contrary, they had taken all necessary measures so that the perpetrator would be discovered. On 12 March 2012 the higher public prosecution ’ s office found that this decision was lawful and correct and based on all available material.

On 18 January 2012 the applicant took over the prosecution as a subsidiary prosecutor and submitted an indictment against Z.J., P.K., V.B. and D.I. before the trial court.

At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation by the President of an adjudicating panel of the trial court of 20 April 2012, in which he considered that the applicant ’ s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant ’ s complaint, finding no grounds to depart from the public prosecutor ’ s decision of 29 December 2011.

The applicant appealed against this decision, arguing that no procedural steps or hearing had taken place before the panel, which had also failed to examine the accused. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant ’ s appeal and upheld the lower court ’ s decision. The applicant was served with this decision on 20 March 2013.

COMPLAINTS

The applicant complains that the investigation into her son ’ s death did not meet the requirements of effectiveness under Article 2 of the Convention, given the decision of the prosecuting and judicial authorities not to investigate all aspects of the incident or attach any responsibility to all of the persons concerned. In this connection, she alleges that the shortcomings in the performance of their duties by the police and the attempt to cover up the murder of her son were not investigated by the authorities. As a result, no credible explanation was given as regards the events that led to M.N. ’ s killing and the involvement of the four accused persons who allegedly assisted the killer. The prosecutor relied heavily on the evidence submitted by the police and did not carry out an independent investigation. Furthermore, the allegations of conspiracy could only have been examined properly if adversarial judicial proceedings had been launched. Lastly, the prosecutor ’ s refusal to entertain the criminal complaint of 7 October 2011 deprived the investigation of public scrutiny.

The applicant also complains that none of the remedies that she used in the proceedings against the four accused (see subsection 5 above) were effective within the meaning of Article 13 of the Convention. In this connection she contests the findings of law regarding these individuals.

QUESTIONS TO THE PARTIES

1. Does the procedural obligation under Article 2 of the Convention that the respondent State carry out an official effective investigation regarding M.N.s ’ death encompass the charges brought against Z.J., P.K., V.B. and D.I. (see “The Facts”)? If so, was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

2. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 2, as required by Article 13 of the Convention?

3. The Government are invited to inform the Court whether I.S. appealed on points of law ( барање за вонредно преиспитување на правосилна судска пресуда ) against the final judgment of 9 July 2012 and if so, what the result of the proceedings before the Supreme Court was.