FIRST SECTION

Application no. 24312/10 Vladimir ANDONOVSKI against the former Yugoslav Republic of Macedonia lodged on 20 April 2010

STATEMENT OF FACTS

The applicant, Mr Vladimir Andonovski , a surgeon in Kumanovo Hospital , is a Macedonian national, who was born in 1948 and lives in Kumanovo . He is represented before the Court by Mr J. Naumov , a lawyer practising in Skopje .

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

1. Incident of 17 September 2004

On 17 September 2004 the applicant parked his car on a street in Kumanovo , where, according to him, there was no sign that parking was unauthorised. After he returned, he found a notice of illegal parking under the windscreen wiper. No parking ticket was issued regarding other cars parked on the same street. People present at the spot gave description of two police officers who had written the ticket. The applicant started his car and went looking for the policemen in order to discuss the issue regarding the ticket. After a short drive, he noticed a police car in movement and started following it until the police car stopped. The applicant approached the car and noticed inside two police officers, Mr A.M. and Mr P.J. Mr P.J. was a neighbour with whom the applicant was not in good relations. For that reason, the applicant did not discuss with Mr P.J. and addressed instead Mr A.M. However, the two police officers started insulting him. Mr P.J. allegedly said “I had looked forward to this ... ”. Mr P.J., while inside the car, opened the door “strongly” and hit the applicant in his legs. Both officers left the car and started kicking and punching the applicant at his body. He was also hit at the back of his head. In result, he fell down. That allowed Mr P.J. to kick the applicant at his back that caused a strong pain. During the incident, the applicant asked the officers to stop beating him due to his poor health, notably he had a weak heart and had undergone a heart surgery. The incident was looked at by many people. Then, the applicant was handcuffed, put in the police car and taken to Kumanovo police station. According to him, the beating continued in the police station until he fell unconscious. After an hour, an emergency unit was called, which took the applicant to Kumanovo Hospital . He was then transported, with an ambulance car, to Skopje Clinic. In Skopje Clinic, he was admitted, firstly, at Cardiology Unit and then, at Emergency Unit. He complained having a headache, pain in his body, involuntary urge to vomit and numbness in his legs. Lastly, he was transported to Skopje City Hospital where he remained until 28 September 2004.

On an unspecified date, the applicant informed the Department for Control and Professional Standards within the Ministry of the Interior (DCPS) about the incident and complained that he had been subjected to acts of police brutality. In a reply dated 17 December 2004, the DCPS informed the applicant that he had been reported as having assaulted a police officer on duty. Mr P.J., Mr A.M. and two eye-witnesses (the same persons who were subsequently heard in the criminal proceedings against the applicant, see below) had been interviewed. According to the report, the applicant had used offensive language; he had resisted the arrest and he had bite Mr A.M. at his right thumb. The force used against the applicant, notably twisting the arm, had been in the circumstances, necessary and justified.

2. Relevant medical evidence

According to a discharge notice issued by Skopje City Hospital , the applicant was hospitalised therein between 17 and 28 September 2004. It indicated that the applicant had sustained inter alia the following injuries: compressive fracture of two vertebrae on the lower part of the vertebral column, concussion, head trauma and back contusions. According to the notice, the applicant had been examined in three hospitals, which had established the same diagnosis. He was advised to remain in bed between four and six weeks. It was also indicated that the applicant had been unfit to work.

On 17 September 2004 an investigating judge of the Kumanovo Court of First Instance (“the trial court”) accepted a request of the Ministry of the Interior (“the Ministry”) and ordered an external examination of the applicant ’ s body. The order was issued in the criminal proceedings instituted against the applicant (see subheading 3 below). The examination was carried out by the Forensic Institute ( Институт за Судска Медицина ). It took place on 18 September 2004 while the applicant was in Skopje City Hospital . The examination revealed bruises on the applicant ’ s head, chest, back, hip and both arms and legs.

On 10 July 2006 the Forensic Institute submitted to the trial court another expert report that the investigating judge had requested in relation to the applicant ’ s criminal complaint lodged against Mr P.J. and Mr A.M. (see subheading 4 below). The Forensic Institute was required to give an opinion about the applicant ’ s injuries and the way in which they had been inflicted. The opinion was based on extensive medical documentary evidence concerning medical examinations that the applicant had undergone between 17 September 2004 (in Kumanovo Hospital, Cardiology and Emergency Units of Skopje Clinic, as well as in Skopje City Hospital ) and 12 October 2005. The Forensic Institute concluded that:

“ ... on the basis of the medical evidence and the examination that we had carried out (the external examination of 18 September 2004, see above), [the applicant] sustained the following injuries in the fight of 17 September 2004 with the two accused: concussion, head trauma, bruises (and/ or lesions) on the nose; chest; hip; right shoulder, forearm and hand; left forearm, elbow and hand; right thigh and lower leg; left lower leg and fracture of the first vertebrae on the lumbar vertebral column ...

...

The injuries that [the applicant] sustained ... in the head, body and extremities have been caused as a result of multiple action of a dynamic blunt pressure enforced in areas mentioned above and represent, from the legal point of view, a body injury.

...

... it can be concluded that the injuries sustained by [the applicant] ... taken in view of their overall impact on the body of the victim qualify as serious body injury that had considerable, but not a permanent negative effect over a vital part of the body”.

3. Criminal proceedings against the applicant

On 18 September 2004 the Ministry lodged a criminal complaint with the Kumanovo public prosecutor accusing the applicant of assaulting, in the incident of 17 September 2004, police officers in performing their duties. The Ministry alleged that the applicant, after he had approached the police car, had started insulting the police officers and kicking the car. He had actively resisted when they had tried to arrest him. The applicant had also bite Mr A.M. at the right thumb, which was a serious body injury. It was stated that the medical report of the Forensic Institute that the investigating judge had ordered on 17 September 2004 (see above), medical reports issued by the Cardiology and Emergency Units of Skopje Clinic, Skopje City Hospital , and medical reports attestin g to the injury sustained by Mr A.M. would be submitted subsequently.

The investigating judge heard oral evidence from the applicant, Mr P.J, Mr A.M. and two eye-witnesses. The latter denied that the applicant had bite Mr A.M. and that the officers had used force against the applicant. They produced conflicting evidence as to whether the applicant had kicked the police car.

On 19 May 2005 the trial court found the applicant guilty for assaulting a police officer in performing the duties and sentenced him to five months ’ imprisonment suspended for two years. The court established that the applicant, in the incident of 17 September 2004, had used offensive language against Mr P.J. and Mr A.M. and had kicked the police car. When Mr P.J. had opened the door of the car, the applicant had spitted on him. Mr A.M. had asked the applicant to produce an identity card, which the latter had refused. Then, Mr A.M. had twisted the applicant ’ s arm in order to put him in the car. The applicant, however, had bite Mr A.M. at his left thumb. Mr P.J. had punched the applicant in his right shoulder and the back of his head, which had caused the applicant to release the thumb. The applicant had been subsequently handcuffed with two pairs of handcuffs.

The applicant appealed arguing that there had been inconsistent evidence regarding the alleged injury sustained by Mr A.M.; that the medical evidence attesting to the alleged thumb injury had been issued in respect to another person with a similar name to Mr A.M. and that the expert evidence regarding Mr A.M. ’ s alleged injury had been produced on the basis of photos of the victim ’ s finger without Mr A.M. having been examined in person. Lastly, the applicant complained that the trial court had disregarded the medical evidence supporting the injuries that he had sustained in the incident.

On 24 March 2006 the Skopje Court of Appeal upheld the trial court ’ s judgment and confirmed the applicant ’ s conviction finding no grounds to depart from the established facts and reasoning given by the trial court.

With decisions of 16 March and 5 May 2009 respectively, the trial court and the Skopje Court of Appeal dismissed the applicant ’ s request for reopening of the proceedings.

4. Criminal proceedings against Mr J.P and Mr A.M.

It appears that on 29 January or 3 February 2005 the applicant submitted criminal complaints against Mr P.J. and Mr A.M. on account of physical assault and serious body injury. They were lodged with the office of the State Prosecutor. It appears that they remained unanswered.

On 16 February 2005 the applicant lodged a criminal complaint seeking that Kumanovo public prosecutor indicted Mr P.J. and Mr A.M. for assault and serious body injury, as well as for an abuse of office. He submitted in support a medical report issued on 8 February 2005 by the Kumanovo Hospital . He also requested that evidence is obtained from the two eye-witnesses who had already testified in the criminal proceedings against him (see above).

On 3 March 2005 the applicant asked the public prosecutor to examine as soon as possible the criminal complaint, together with all evidence that had become available during the investigation of the case. He further enquired why the public prosecutor had not initiated that the police officers concerned were suspended or fined.

On 7 April 2005 the public prosecutor replied that competent authorities had been consulted with a view of obtaining relevant information about the case.

The applicant further addressed the public prosecutor on three occasions alleging obstruction and seeking that appropriate measures were taken.

On 25 May 2005 the Kumanovo public prosecutor rejected the criminal complaint finding no grounds that the accused had committed the alleged crimes. In the decision, the public prosecutor relied on the statements of the witnesses given in the criminal proceedings against the applicant and the report of the DCPS (see above).

Without, apparently, being informed about the rejection of his complaint, on 26 May 2005 the applicant argued that all relevant evidence, including the discharge notice issued by Skopje City Hospital, the medical report concerning the external examination carried out by the Forensic Institute on 18 September 2004, as well as the statements of the accused, the witnesses and the applicant, had been already brought to the attention of the public prosecutor.

It appears that on 31 May 2005 the applicant brought a private criminal complaint against Mr P.J. and Mr A.M.

On 7 June 2005 the applicant, represented by Mr R.C., a lawyer practising in Kumanovo , informed the trial court that he would take over the prosecution as a subsidiary prosecutor and sought that the investigating judge open investigation against Mr P.J. and Mr A.M. In support, he submitted copies of the available medical evidence and sought that the court heard evidence from the accused and the two witnesses.

On 12 September 2005 the investigating judge, after hearing oral evidence from the applicant, his wife and son and the accused, opened investigation against Mr P.J. and Mr A.M. on account of reasonable suspicion that they had caused serious body injury punishable under the Criminal Code.

On 29 September 2006 the applicant, through his lawyer, submitted to the trial court a subsidiary indictment ( супсидијарен обвинителен акт ) accusing Mr P.J. and Mr A.M. of having inflicted on him grievous body harm supported by the medical report of the Forensic Institute of 10 July 2006 (see above).

On a hearing held of 22 October 2007, Mr Z.J., a lawyer practising in Kumanovo , whom the applicant had meanwhile appointed to represent him in the case, stated that the offence imputed on the accused was subject to State prosecution. Consequently, he asked that the case-file was transferred to the public prosecutor in order that the latter took over the prosecution. On 29 November 2007 the public prosecutor informed the court that it would not take over the prosecution.

On a hearing of 12 November 2008 the applicant ’ s representative sought that the public prosecutor gave a definite answer if it would take over the prosecution. In that connection he stated that it was not a right, but a duty of the prosecutor to step in into the proceedings given the fact that the alleged crime was subject to State prosecution. With submissions of 18 November 2008, the public prosecutor informed the court that it would not take over the prosecution against Mr P.J. and Mr A.M.

On 24 March 2009 the trial court held a hearing. According to the court record of that date, signed by the trial judge and the minutes holder, the applicant stated that:

“ ... I withdraw the subsidiary indictment of 20 September 2006 against the accused ... ”

On the same day, the trial court stayed the proceedings since the applicant, in the presence of his legal representative, had stated that he withdrew the subsidiary indictment.

On 25 March 2009 the applicant objected to the trial court ’ s decision to withdraw the indictment and stated that:

“... I, as a lay person ( неука странка ), did not understand what had the judge asked me, so I said that I withdraw the indictment since I considered that the prosecution should be taken over by the public prosecutor. I wanted to uphold that right, namely ex officio prosecution through the public prosecutor, given the fact that the case concerns serious body injury, a crime punishable under Article 131 (1) of the Criminal Code, which is prosecutable ex officio by the public prosecutor. I ask therefore the court to reinstate the proceedings and to decide my subsidiary indictment”.

In submissions of 26 March 2009, the applicant reiterated his arguments contesting the validity of his statement for withdrawal of the indictment. He reaffirmed that the prosecution should be taken over by the public prosecutor since the alleged crime had been subject to State prosecution.

On 27 March 2009 the applicant complained to the Macedonian Bar about the inactivity of Mr Z.J., his legal repre sentative, at the hearing of 24 March 2009 and asked the Bar to react in order that his case is reinstated. He further stated:

“While I was explaining, namely while I was complaining about the way in which the trial was conducted, the trial judge wrote in the court record that I ’ m withdrawing the subsidiary indictment. At that time, I emphasised that I disagreed with that decision noted in the court record. My representative, Mr Z.J., did not react at all to the decision noted in the record [although] I ’ m a lay person ( неук во правото и законите ).

Submissions with similar contents were sent to the State Judicial Council ( Судски Совет ).

On 11 May 2009 the applicant, who was no longer represented, appealed against the trial court ’ s decision arguing that he had never withdrawn the indictment against the accused. He reiterated that his statement concerned, in substance, his determination that the prosecution should be taken over by the public prosecutor. He further argued that he had complained aloud to the trial judge about the contents of the minutes, but to no avail. He stated that “I ’ m shocked by the flagrant incorrect interpretation of my statement”.

On 24 September 2009 the Skopje Court of Appeal dismissed the applicant ’ s appeal as unsubstantiated and upheld the trial court ’ s judgment. Relying on the court record of 24 March 2009, the court concluded that the applicant, in the presence of his legal representative, had withdrawn the indictment against the accused. In such circumstances, the trial court had correctly decided to stay the proceedings. According to the applicant, that decision was served on him on 20 October 2009.

By the trial court ’ s decision of 15 October 2009 the applicant was ordered to pay the equivalent to EUR 1,400 for the officers ’ legal representation and travelling costs. It is not clear whether the applicant appealed against that decision.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to acts of police brutality and that the State failed to investigate his allegations, which were supported with credible evidence. In this latter context, the applicant complains under Article 6 in that the proceedings against him were terminated rapidly unlike the criminal proceedings against the police officers, which were protracted. That signified judges ’ bias. Furthermore, in the criminal proceedings against the police officers, the public prosecutor relied solely on the evidence presented by the DCPS. The inactivity of the public prosecutor and the deliberate prolongation of the criminal proceedings against the accused by the courts signified that there was no effective remedy, as required under Article 13, taken in conjunction with Article 6 of the Convention.

QUESTION S TO THE PARTIES

1. Has the applicant, in the incident of 17 September 2004, been subjected to a treatment in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Butolen v. Slovenia , no. 41356/08 , §§ 74-81 , 26 April 2012 ?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention?