I correctly predicted that there was a violation of human rights in IASCININA v. THE REPUBLIC OF MOLDOVA.

Judgment

FIFTH SECTION
CASE OF X AND Y v. NORTH MACEDONIA
(Application no. 173/17)

JUDGMENT
Art 3 • No effective investigation into allegations of police brutality (procedural) • Investigation still pending six years after impugned events • Court unable to establish inhuman or degrading treatment by police (substantive), owing to national authorities’ inactivity and ineffective investigation

STRASBOURG
5 November 2020

FINAL

05/02/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of X and Y v. North Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,Ganna Yudkivska,Stéphanie Mourou-Vikström,Latif Hüseynov,Jovan Ilievski,Arnfinn Bårdsen,Mattias Guyomar, judges,and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 173/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Macedonians/ citizens of the Republic of North Macedonia, Mr X and Y (“the applicants”), on 19 December 2016;
the decision to give notice of the application to the Government of North Macedonia (“the Government”);
the decision not to have the applicants’ names disclosed;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the Helsinki Committee for Human Rights in Skopje (hereinafter “the HCHR”), which was granted leave to intervene by the President of the Section;
Having deliberated in private on 6 October 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns allegations of racially motivated police brutality in respect of the applicants, who state that they are ethnic Roma, and were minors at the material time, and the alleged failure of the respondent State to carry out an effective investigation into those allegations. The applicants rely on Article 3 of the Convention, Article 14, taken in conjunction with Article 3, and Article 1 of Protocol No.12. THE FACTS
2. The applicants were born in 1997 and 2001 respectively and live in Skopje. They were represented by European Roma Rights Centre, a non‐governmental organisation based in Brussels, Belgium, which was granted leave to represent the applicants by the President of the Section. 3. The Government were represented by their Agent, Ms D. Djonova. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. At the time of the events, X was sixteen years old and Y was thirteen years old. 6. At 8.20 p.m. E.R., a twenty-year-old woman at the time, was attacked (punched, kicked and threatened with a knife) by two young men on a street in Skopje near a Roma neighbourhood. The assailants stole her bag. In a police report about the incident drawn up at 9 p.m., E.R. described both assailants as males with darker skin (темен тен) (Roma) aged between sixteen and eighteen (she also provided details of their clothing). 7. An immediate alert was issued to all police patrols. At 8.30 p.m., near the place of the attack, four police officers members of the “Alfa” unit intercepted a person (later identified as applicant X), as he matched the profile of one of the assailants involved in the previously reported incident. As stated in a report by the Sector for Internal Control and Professional Standards (“the Sector”) within the Ministry of the Interior (“the Ministry”) (see paragraph 11 below), during the arrest no force had been used against X, who had cooperated with the police. At 8.40 p.m. further police officers and E.R. arrived at the scene. E.R., seated in a car, identified the person (X) as one of the assailants. At 9.10 p.m. X was “deprived of his liberty” on account of suspected robbery. According to police records of that day, no items connected with the robbery were found on X; he was handed over to other responsible police officers (from a police station) in “good psychological and physical condition”; Z.M., X’s father, was summoned to the police station, where both of them, in the presence of an ex officio attorney, signed records to the effect that they had no complaints concerning the conduct of the police and sought no legal and medical assistance. At the interview, X admitted to the crime, but he was inconsistent as to who his accomplice had been (the applicant Y or N.U., Y’s brother). N.U. and his father R.U. were also interviewed that day in the police station. X was released the next day at 12.10 a.m.
8. There have been no police records regarding Y. 9. On 20 May 2014 at 2 p.m. X was admitted to Skopje hospital. According to medical records of that date and a medical certificate of 4 June 2014 issued by the same hospital, X was diagnosed with bruising (нагмечување) to his head, neck and chest (and scratches on his chest). X‐ray examination of 20 May 2014 noted “orderly findings” (уреден наод) and the absence of “traumatic changes to the skeleton of the head, chest and neck spine”. The medical certificate concluded “bodily injury”. The records noted that, as explained by X, he had been physically attacked by police and hit on the head, neck, chest and abdomen. 10. Pursuant to a request by Z.M. and R.U., on 18 June 2014 the HCHR complained to the Sector that the applicants had been beaten and ill-treated by police officers at the scene of 19 May 2014. It was alleged that a certain K.S. had witnessed police officers intercepting the applicants on the street and punching and kicking both of them (X had also been hit with a truncheon), while asking them to “admit where the bag is, where have you put it?”. She had called their fathers who had arrived shortly after, while the officers had still been beating X. There had been other bystanders, and according to K.S. and the applicants’ parents who had witnessed the incident, X had not been aggressive. R.U. had noticed that Y, his son, who had been thirteen years old at the time, had been “evidently upset, crying, had urinated in his pants and had an intense redness on his face”. The same night he had called the emergency police number from his mobile to report the incident. In the police station, X had initially been interrogated for two hours in the absence of his father or a lawyer. During that time he had allegedly been beaten. After his father had been called to attend the examination, he had not been assisted by an interpreter, despite the fact that he had limited command of Macedonian. Under duress (insulted and threatened with the words “find the bag or I’ll kill you in front of your father”), X had admitted the crime. Both Z.M. and R.U. had been required to sign, in the presence of an ex officio lawyer, certain documents purporting to be “certificates that children [had been] released”. X was released between 12.30 a.m. and 1 a.m. the next day. In support of the complaint, the applicants provided statements by Z.M., R.U. (who also stated that X had been beaten with a truncheon) and K.S., as well as the medical evidence reproduced in paragraph 9 above. 11. On 15 July 2014 the Sector, relying on police records described in paragraph 7 above, dismissed the complaint as unsubstantiated, asserting that the police officers had not overstepped their authority. In its account of the events, the Sector stated that at the date and time in question, four police officers had intercepted one person (X); he had been apprehended without any force being used because he had cooperated with the police; two other police cars (with further police officers and E.R.) had arrived on the scene; a larger group of Roma people (including X’s father) had meanwhile gathered, complaining loudly, but there had been no need for the police to intervene. According to the Sector, no other actions had been taken on the scene in respect of any other person. As regards the medical evidence described in paragraph 9 above, the Sector reiterated that the X-ray examination had noted “orderly findings”. It further stated that “[the Sector] would not comment on the findings of bodily injury”. Lastly, it noted the absence of any indication that action had been taken in respect of Y. From the interview with the police officer on duty who had received R.U.’s call and the audio recordings, the Sector concluded that R.U. had been instructed to report the incident to the police station, which he had failed to do. In September 2014 the Ombudsman reached the same findings and informed R.U. that he would terminate the proceedings. 12. On 3 September 2014 the applicants, represented by a lawyer, and the HCRH filed a criminal complaint to the public prosecutor against four unidentified police officers on account of ill-treatment, torture, violence and racial discrimination in relation to the events of 19 May 2014, punishable under the Criminal Code. They alleged that they had been intercepted on a street and beaten by police officers (punched (Y was also slapped in the face) and kicked (X was also beaten with truncheon)) because they had been Roma (Y had not matched the reported age of the assailants, see paragraph 6 above). At the same time the police officers had been asking them to “admit where the bag is, where have you put it?”. They further reiterated that the same night R.U. had called the emergency police number from his mobile phone to report the incident, submitting that no steps had been taken to investigate that report. In support they submitted the medical evidence regarding X and requested that the public prosecutor examine the applicants, their fathers, K.S., a certain S.S. and N.U. (who had also allegedly witnessed the events complained of) and the police officers involved. They also submitted copies of their application to the Sector and the latter’s reply (see paragraphs 10 and 11 above). 13. On 6 August 2015 the applicants requested that the higher public prosecutor reviewed the work of the first-instance prosecutor in the absence of any action on his part. In his reply of 21 September 2015, the higher public prosecutor informed the applicants that there were two criminal complaints regarding related events (see paragraphs 24 and 25 below) and that appropriate measures would be taken. 14. On 25 March 2016 the applicants requested the higher public prosecutor to take over the prosecution in view of the inactivity of the first‐instance public prosecutor. By letter of 28 March 2016 the higher public prosecutor notified the applicants’ representative that information had been requested from the competent first-instance prosecution’s office. The applicants made similar request on 21 October 2016. 15. At a meeting of 25 November 2016, the first-instance public prosecutor informed the applicants’ lawyer of the difficulties in establishing X’s whereabouts in the proceedings against him (paragraphs 24 and 25 below). The applicants’ lawyer confirmed that the applicants lived in Skopje and that she was in contact with them. 16. In a letter of 2 December 2016, the first-instance public prosecutor informed the higher public prosecutor that he had requested that the Ministry of the Interior should identify the police officers involved in the events of 19 May 2014. That request was repeated on 6 November 2017. 17. On 25 December 2017 the first-instance public prosecutor examined Y in the presence of his lawyer. Y reiterated that police officers had slapped and punched them (X had been beaten more and subsequently taken to police station). R.U. added that Y had urinated in his pants and had blood on his mouth. The public prosecutor also examined the accused police officers whose identity had meanwhile been determined. They all denied the accusations. X did not attend the interview. The lawyer said that he would ensure X’s presence in order to testify. According to a letter of 10 May 2018 sent by the first-instance public prosecutor to the Government Agent in the context of the present proceedings, that assurance has not yet been met. 18. On 21 December 2016 the applicants submitted two separate civil claims (relying, inter alia, on the Discrimination Act (Закон за спречување и заштита од дискриминација)) asking the courts to establish that the Ministry and the first-instance public prosecutor’s office dealing with their criminal complaint had discriminated against them on grounds of their Roma origin and to award them just satisfaction on that basis. In both claims they reiterated their allegations as submitted in their criminal complaint (see paragraph 12 above), namely that they had been beaten by four police officers on the scene solely because they were ethnic Roma (Y had not matched the reported age of the assailants, see paragraph 6 above). They argued that police officers had punched (Y had been slapped in the face) and kicked them and had asked them to “admit where the bag is, where have you put it?”. The applicants requested that the court, inter alia, examine them personally, and also Z.M., R.U., K.S., S.S. and N.U. as eye‐witnesses, and admit in evidence the medical certificates of 20 May 2014 (see paragraph 9 above). They also referred to international materials (see paragraphs 28 and 29 below) and the Court’s case-law concerning discrimination against Roma people. 19. The applicants claimed that the public prosecutor’s inactivity vis‐à‐vis their complaint of police brutality had been due to their Roma origin. The Skopje Court of First Instance established, inter alia, that police had intercepted the applicants and tried to “secure their presence for identification” by E.R. A fairly large group of people (around forty) had gathered. Further police officers and several police cars had arrived at the scene. Y had been handed over to his father with an instruction to bring him to the police station for identification. As stated in the judgment, these facts were established on the basis of the exchange between the Sector and the HCHR (see paragraphs 10 and 11 above) and R.U.’s testimony. According to the court minutes, R.U. also stated that when he had arrived on the scene, he had seen that Y had blood on his nose and mouth. He had taken him to a doctor who had noted no injury, but said that Y had been frightened and stressed. By decision of 17 November 2017, the court dismissed the claim by Y and noted that X had meanwhile (on 21 September 2017) withdrawn the claim in his regard (by a written statement to which his father consented). It found no evidence that the defendant had suffered any discriminatory conduct motivated by Y’s Roma origin. On the contrary, the complexity of the case, namely the fact that the criminal complaint had concerned unidentified officers accused on several counts, required extensive examination irrespective of the ethnic belonging of the persons concerned. The time required for the public prosecutor to take the necessary actions was not excessive and could not imply the existence of discrimination. The evidence adduced by Y (reports and Court’s case-law) could not lead to different facts that would require the shifting of the burden of proof on to the defendant. 20. Y complained, arguing, inter alia, that the first-instance court had not explained why the public prosecutor had processed the criminal complaint against X more expeditiously than their complaint of police brutality, and how long the investigation would have to have been to be considered unreasonable. He submitted that the public prosecutor should first of all have interviewed the applicants, but that he had failed to do so because they were Roma and the accused were police officers, and that he had provided sufficient evidence and facts in support of his claim to require the burden of proof that there had been no discrimination to be shifted on to the defendant. 21. On 29 March 2018 the Skopje Court of Appeal upheld the lower court’s decision finding no grounds to depart from the reasons provided therein. 22. The parties submitted copies of court minutes of October and December 2017 in the context of these civil proceedings regarding the examination of R.U. and N.U. (Y’s father and brother, respectively). R.U. stated that, inter alia, after the encounter with the police, Y had blood on his mouth; his face had been red and he had urinated in his pants. Y had told him that police officers had slapped and kicked him. During the interview in the police station, police officers had shouted “you Gypsies, you lie and steal”. N.U. stated that, inter alia, he had seen that police officers slapping, punching and kicking Y, and shouting “You Gypsies, you only cause trouble”. Y had been bleeding from his mouth; he had been frightened and had urinated in his pants. 23. No information has been provided on whether the proceedings before the Skopje Court of First Instance have been completed. 24. On 23 May 2014 the Ministry lodged a criminal complaint against X on charges of robbery, relying on X’s admission (see paragraph 7 above) and the fact that E.R. had identified X as one of the assailants in an identification parade organised on 22 May 2014. Since X had his official home address in Prilep, the case was assigned to Prilep public prosecutor. After the summons sent to his address in Prilep was returned by the postal service, Prilep public prosecutor was informed by the Ministry (in November 2014 and May 2015) that X lived at an unknown address in Skopje. 25. The Prilep Court of First Instance held several hearings pursuant to a request by the public prosecutor for an educational measure (воспитна мерка). Since X’s whereabouts were unknown, the court issued a search and arrest warrant. Since X remained unreachable (недостапен), on 15 March 2016 the court suspended the proceedings (се прекинува). On 16 June 2017 Prilep Court of First Instance ordered the educational measure of “enforced supervision by the parents”. In the presence of his father and an officially appointed lawyer, X admitted that on 19 May 2014 both Y and he had attacked E.R. ; Y had threatened her with a knife; they had stolen her bag; police officers had arrived and both of them had started running in different directions; Y, with the bag, had managed to escape. X testified in Macedonian. Z.M., his father, reiterated that the police had beaten him that day. No information was provided on whether X had appealed against this decision, and if so what the outcome had been. 26. On 17 July 2017 the ERRC informed the Court that X wished to withdraw his application. As explained in the letter, on 17 June 2017 X had had a lengthy meeting with the police, after which he had instructed his legal representatives that he no longer wished to pursue the proceedings before the Court and the domestic courts. By letter of 13 October 2017, after X had been informed that the present case had been communicated to the respondent Government and that the applicants had been granted anonymity, X indicated his wish to pursue his application. RELEVANT DOMESTIC PRACTICE
27. The Government submitted copies of several final judgments rendered between October 2015 and August 2017 in which the domestic courts, relying on the Discrimination Act, acknowledged that the Ministry had discriminated against the plaintiffs, all Roma, and awarded them just satisfaction. All cases concerned border incidents in which the plaintiffs were not allowed to leave the respondent State (P4-1228/13; P4-160/15; P4-190/15; P4-730/15; P4-14/16; P4-130/16). International materials
28. In its Concluding Observations on the third periodic report submitted by the former Yugoslav Republic of Macedonia adopted at its 3191th meeting held on 20 July 2015, the Committee stated, inter alia, that:
“Torture and excessive use of force by law enforcement officials
The Committee is concerned about reports of police brutality and excessive use of force by law enforcement officials, particularly against Roma and members of other minorities. It is also concerned about reports of ill-treatment and torture by prison staff in detention facilities. The Committee is also concerned about the lack of investigation of and prosecution for crimes committed by law enforcement personnel. (arts. 2, 7 and 9).”
29. In its Concluding Observations on the third periodic report of the former Yugoslav Republic of Macedonia adopted at its 1317 meeting (CAT/C/SR.1317) held on 7 May 2015, the Committee stated, inter alia, that:
“... Impunity for acts of torture and ill-treatment
10. The Committee notes with concern that 242 complaints of excessive use of force and violence by police officers were filed with the Ombudsman and the Sector for Internal Control and Professional Standards (SICPS) between 2009 and 2013 .... NGO sources also point to a lack of transparency of the parliamentary oversight committee which has allegedly not taken any action on torture or ill‐treatment by police. ...
Violence against Roma
12. While appreciating the establishment of the national action plans (NAP) and other efforts undertaken to combat intolerance and hatred towards ethnic minorities, especially Roma, the Committee remains concerned at information regarding excessive use of force by police officials against the Roma including those committed by members of the “Alfa” unit. The Committee is also concerned at the investigation into the case on 5 May 2013 where approximately 50 police officers, including those belonging to the special police unit “Alfa”, allegedly forcibly entered several Romani houses and local shops in a Roma neighbourhood ‘Topaana’ in Skopje, and used excessive and arbitrary force when they were attempting to arrest a person. It was alleged that, without providing any explanation, the police harassed and pushed people, and that police officers kicked and punched and hit them with batons, injuring 10 individuals (art. 11 and 16).”
THE LAW
30. Having regard to X’s letter of 17 July 2017 (see paragraph 26 above), the Government initially submitted that there existed no special circumstances relating to respect for human rights that would require the Court to continue the examination of the application in his regard. In their comments of 29 May 2018 submitted in reply to the applicants’ observations, the Government denied that X’s withdrawal of the application and his claims before the domestic courts had been the result of any pressure exerted on him. According to them, it was unclear what the motive might have been and why any such pressure would have been exerted only in respect of X. Furthermore, no explanation had been given for the alleged meeting of 17 June 2017 (see paragraph 26 above), which had not been brought to the attention of any domestic authority. 31. X submitted that his statement withdrawing the application in his regard (as well as his civil claims before the domestic courts) had been given under duress. The Government had not denied that the meeting of 17 June 2017 preceding that statement had taken place. He also referred to his subsequent statement in which he had indicated that he intended to pursue his application (see paragraph 26 above). Accordingly, respect for human rights required the continued examination of the application in his regard. 32. The Court notes that on 17 July 2017 applicant X stated that he did not intend to pursue his application before the Court. The Court considers that this information must be examined in the light of Article 37 § 1 (a) of the Convention, which reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that:
(a) the applicant does not intend to pursue his application; ...”
33. The Court observes, however, that the above statement in which applicant X informed the Court, through ERRC, his legal representative, that he wished to withdraw his application was not unqualified. It was accompanied with a reference to a prior meeting with the police (no documentary evidence in support) and an explanation that after that meeting, X had instructed his legal representatives that he had no longer wished to pursue both the proceedings before the Court and the domestic courts (X withdrew his compensation claim against the public prosecutor in September 2017 (see paragraph 19 above)). 34. The Court further observes that after the communication of the case to the respondent Government and the President’s decision not to disclose the applicants’ identity (see paragraph 26 above), X clearly stated that he wished to pursue his application and that he reiterated this intention, in substance, in his comments submitted in reply to the Government’s observations (see paragraph 31 above). 35. In such circumstances, the Court does not consider that X’s statement of 17 July 2017 can be regarded as valid grounds capable of justifying the striking out of the application in his regard in accordance with Article 37 §1 (a) of the Convention (see, conversely, Berlusconi v. Italy (dec.) [GC], no. 58428/13, § 65, 27 November 2018). One further element in this connection is X’s explicit and unequivocal statement of 13 October 2017 (see paragraph 26 above), which he repeated, in substance, in his observations (see paragraph 31 above), expressing his intention to pursue his application. Accordingly, Article 37 § 1 (a) of the Convention is not applicable (see Association SOS Attentats and de Boery v. France (dec.) [GC], no. 76642/01, § 31, ECHR 2006‐XIV, and Pisano v. Italy (striking out) [GC], no. 36732/97, § 41, 24 October 2002). 36. The applicants complained that the police had ill-treated them during the events of 19 May 2014, when police officers had slapped, kicked and punched them (X had also allegedly been beaten during his interrogation in the police station). They further alleged that the respondent State had failed in its obligation to carry out an effective investigation into those allegations. They relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
(a) The Government
37. The Government maintained that the applicants had submitted their complaints under this head outside the six-month time-limit, which, according to the Government, had started to run in late 2015 or early 2016, at the latest, when they should have been aware of the ineffectiveness of the investigation conducted by the prosecuting authorities. The applicants’ request of 6 August 2015 to the higher public prosecutor to review the work of the first-instance public prosecutor had indicated, in itself, that the applicants had been aware, at that early stage, that the investigation had been ineffective. The subsequent steps in the proceedings could not be regarded as new developments capable of “reviving” the State’s procedural obligation under this head. Furthermore, the applicants had not been diligent and had failed to show any “real interest” in the conduct and progress of the proceedings before the public prosecutor. In this connection they maintained that it had taken over a year for the applicants to complain of the alleged inactivity of the first-instance public prosecutor. They had not explained why they had waited so long to lodge the complaint. (b) The applicants
38. The applicants contested the Government’s objection that this part of the application had to be rejected on account of six months. In that connection they submitted that the investigation had still been ongoing. Given the higher public prosecutor’s letter of March 2016 and the meeting with the first-instance public prosecutor in November 2016 (see paragraphs 14 and 15 above), the applicants had reasons to believe that the investigation would be pursued. 39. The relevant general principles regarding the purpose of the six‐month rule stipulated in Article 35 § 1 of the Convention and the calculation of the six-month time-limit in view of the effectiveness of remedies used, in general, and in the case of ongoing investigations, in particular, have been outlined in Jeronovičs v. Latvia ([GC], no. 44898/10, §§ 74 and 75, ECHR 2016, and Deari v. the former Yugoslav Republic of Macedonia (dec.) no. 54415/09, § 41, 6 March 2012, in the context of Article 2 of the Convention. 40. In the present case, the Government’s objection under this head relies on the premise that the applicants were aware or should have been aware of the ineffectiveness of the investigation some time around the end of 2015 or early 2016, and that the subsequent steps taken in the proceedings, namely the exchanges with the higher public prosecutor, could not interrupt the running of the six-month time-limit. They also argued that the applicants had not been diligent in the proceedings. 41. The Court notes that on 6 August 2015 and 25 March 2016, in the absence of any information about their criminal complaint, the applicants applied to the higher public prosecutor to review the work of the subordinated public prosecutor and requested that he take over the prosecution. It has not been argued that these requests had no basis in the domestic law or that they lacked any prospect of success from the outset. Indeed, the higher public prosecutor did not reject the requests: on the contrary, he informed the applicants that he had sought information from the lower prosecutor’s office (see paragraph 14 above). In such circumstances, the Court considers that it was not unreasonable for the applicants to apply to the higher public prosecutor and await the outcome of its inquiry (see, mutatis mutandis, L.R. v. North Macedonia, no. 38067/15, §§ 66 and 67, 23 January 2020, and, conversely, Deari, cited above, § 48). Their further request of 21 October 2016 also fitted into this context (see paragraph 14 above). The above actions taken by the applicants demonstrate that, contrary to the Government’s arguments (see paragraph 37 above), and notwithstanding that they were not interviewed until then and no contact was maintained with them on the prosecutor’s initiative, they demonstrated interest in the conduct and progress of the investigation. The purpose of their actions was to obtain redress for their grievances through the internal mechanisms within the prosecutor’s office as provided for by domestic law. 42. Accordingly, the Court finds that the present application was submitted within the six-month time-limit. Therefore, the Government’s objection must be rejected. 43. It also notes that the Government did not raise any other objection as regards the admissibility of this part of the application. It also considers that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established. They must therefore be declared admissible. (a) The Government
44. The Government denied that there had been a violation of either the substantive or procedural aspect of Article 3 of the Convention. They submitted that the applicants had not provided sufficient evidence for their allegations of ill-treatment (no arguable claim, let alone evidence up to the “beyond reasonable doubt” standard of proof). In this connection they submitted that Y had not provided any evidence in support of his allegations. There was nothing to cast doubt on the police records (see paragraph 7 above), which contained no information about Y. There had been no medical evidence notwithstanding the alleged existence of “visible physical injuries”, which could have been documented had Y sought immediate medical assistance. As regards X, the Government argued that the injuries noted in the medical records had been “minor” and had not corresponded to the alleged manner in which they had been inflicted (punches, slaps, kicks). Moreover, medical records indicated the absence of “traumatic changes to the skeleton of the head, chest and neck spine”. In such circumstances, the public prosecutor had not been required to investigate whether a crime had been committed. 45. In addition, they submitted that considerable time had elapsed between the alleged incident and the applicants’ criminal complaint. In their opinion, X’s lack of diligence in the proceedings pursuant to the criminal complaint was an element to be taken into account. On the other hand, X had enjoyed all the necessary rights while in police custody, that is, he had been arrested and interviewed in the presence of his father, he had been assisted by a lawyer; and he had not asked for medical help or the assistance of an interpreter. No allegation of police brutality had been raised before the police or in the proceedings against X. Furthermore, they argued that considerable time has elapsed between his release from police custody and his admission to hospital. Nothing suggested that X had sustained the injuries noted in the medical records at the hands of police officers. As regards Y they submitted that X had confirmed that Y had managed to escape the police (paragraph 25 above), which had been inconsistent with Y’s statement before the public prosecutor, paragraph 17 above). 46. In reply to the third-party’s submissions (see paragraph 49 below), the Government referred to a study carried out by the HCHR in 2017 (covering the period between 2010 and 2014), according to which there had been a decrease in the number of criminal complaints lodged with the Ministry and the public prosecutor concerning torture and ill-treatment. A similar downward trend regarding complaints submitted by Roma on various grounds was noted by the Ombudsman in his annual reports of 2015 and 2016. That explained the lower number of cases processed by the public prosecutor and competent courts. (b) The applicants
47. The applicants reiterated that there had been a violation of both the procedural and the substantive aspects of Article 3 of the Convention. As regards the time that had elapsed between the incident and the criminal complaint, they argued that it had not been excessive (given the earlier exchange with the Sector) and could not be regarded as having prevented the authorities from carrying out an effective investigation. In any event, account had to be taken of the age of the applicants at the time, both Roma, and the nature of their allegations, namely that they had been victims of racially-motivated police brutality. They submitted that the investigation into their allegations of police brutality had been protracted and had not been thorough. It had taken over two years for the public prosecutor to request the Ministry to reveal the identities of the police officers concerned. 48. The applicants further submitted that that there had been sufficient evidence in support of their complaints under the substantive limb. As regards X, they reiterated that he had been beaten during his arrest at the scene and while in police custody. The latter had been witnessed by his father and the ex officio lawyer, who had not been invited to produce evidence by any authority dealing with their complaints. The police records of 19 May 2014 had not been reliable. In this connection they argued that they had not been properly informed what documents they were signing. Furthermore, X and his father had a limited command of Macedonian. The fact that X had testified in Macedonian in 2017 had “no bearing” on the case. They further challenged the Government’s argument that X’s injuries as noted in the medical records had been “minor”. The authorities had never produced an alternative expert examination of the injuries listed in the medical records. As regards Y, his allegations had been corroborated by the applicants’ and witnesses’ statements given before the domestic courts. X’s statement of 16 June 2017 had been given more than three years after the incident. 49. The HCHR submitted that for several years now the number of cases of police brutality had been “significant”, “including a number of complaints of police brutality committed against Roma people.” Referring to the Concluding Observations of the UN CAT (see paragraph 29 above) it argued that there was a “systemic failure on the part of the prosecution authorities to investigate such allegations properly and to bring criminal complaints to the competent courts.” According to its own survey, of two cases of torture and thirteen cases of ill-treatment registered by the courts in 2016 and up to August 2017, one person had been convicted on each count and sentenced (regarding torture) to a suspended prison term. The failure of the respondent State to carry out an effective investigation into allegations of police brutality also had been noted by the Court (they referred to three judgments concerning applicants of Roma origin). They concluded that there was a “culture of impunity which [wa]s well established in the operation of police and public prosecution.” They took the view that there were “persistent systemic violations of the human rights of persons belonging to the Roma community”, particularly under Article 3 of the Convention. (a) As to the procedural aspect of Article 3 of the Convention
50. The obligation to carry out an effective investigation into allegations of treatment infringing Article 3 suffered at the hands of State agents is well established in the Court’s case-law (see Bouyid, cited above, §§ 114-23, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‐VIII, and for a full statement of principles by the Grand Chamber, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182-85, ECHR 2012, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 316-26, ECHR 2014 (extracts)). In order to be “effective”, such an investigation must firstly be adequate, which means that it must be capable of leading to the establishment of the facts and to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Jeronovičs, cited above, § 103). Furthermore, it must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‐founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see El Masri, cited above, § 183). Furthermore, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (see Bouyid, cited above, § 118). The investigation should be independent from the executive. Lastly, the victim should be able to participate effectively in the investigation in one form or another (see El Masri, cited above, §§ 184 and 185). 51. In the present case, the Court notes that on 3 September 2014 both applicants filed a criminal complaint accusing four unidentified police officers of ill-treatment, torture, violence and racial discrimination. In the complaint they provided their account of events and the manner in which the police officers had allegedly ill-treated them. In support of their allegations they submitted copies of their earlier application to the Sector (which contained written statements by alleged eye-witnesses) and the latter’s reply. They also asked the public prosecutor to examine them, the police officers concerned and five identified eye-witnesses to the alleged incident. Lastly, X submitted medical evidence (see paragraph 12 above). Notwithstanding the fact that there was no medical evidence in respect of Y., his allegations were supported, contrary to the Government’s argument (see paragraph 44 above), by witness statements, the accuracy of which was to be verified. 52. In the Court’s opinion, therefore, the applicants’ complaints constituted an arguable claim that they might have been ill‐treated by the police and the authorities were thus under an obligation to conduct an effective investigation. 53. As to the Government’s argument that the criminal complaint was submitted more than three months after the impugned events (see paragraph 45 above), given the applicants’ application to the Sector as an internal oversight mechanism set up within the Ministry to deal with allegations of police brutality, the Court does not consider that period of time as excessive. Furthermore, and more importantly, there is no indication that that period had any effect on the investigation. Indeed, the Government’s objection in this respect was of a general nature and did not mention any actual adverse effect on the investigation of the passage of that period of time. 54. The Court notes that the first-instance public prosecutor remained totally inactive and took no investigative measure for over two years after the applicants had filed the criminal complaint (see paragraphs 12 and 15 above). That prompted the applicants to apply to the higher public prosecutor on three occasions, asking it to review the work of the lower prosecutor or to take over the prosecution (see paragraphs 13 and 14 above). These requests, as stated above, were an available remedy and constituted a reasonable attempt by the applicants to pursue their complaint before the prosecuting authorities (see paragraph 41 above). It is to be noted that at the first meeting with the applicants’ representative of 25 November 2016, the public prosecutor did not discuss the applicants’ complaint, but X’s unavailability in the proceedings against him (see paragraph 15 above). It was only on 2 December 2016 that the public prosecutor contacted the Ministry, for the first time, with a view to obtaining the identity of the police officers concerned. Since that request was apparently fruitless, he made the same request nearly one year later, on 6 November 2017 (see paragraph 16 above). The Court, furthermore, cannot but note that it was only on 25 November 2017, namely more than three years after the applicants’ criminal complaint, that the public prosecutor examined Y and the police officers involved, whose identity had meanwhile been revealed (see paragraph 17 above). No explanation was given for these delays, which are solely attributable to the public prosecutor. Moreover, there is no indication that the public prosecutor examined any witness (proposed by the applicants) or took other steps to uncover evidence concerning the incident. X has not yet been examined and it has not been shown that the public prosecutor dealing with the applicants’ criminal complaint made any serious attempt to hear evidence from him. In this connection the Court notes the steps taken in the criminal proceedings against X, as an accused (see paragraph 25 above), which, despite the difficulties in securing X’s presence, ended with a final decision on the merits. More than six years after the critical events of 19 May 2014, the investigation into the applicants’ allegations of police brutality is still pending. The Court has already found in respect of the respondent State that the passage of unreasonable time for the investigation of allegations of police brutality, unlike the processing of cases against the applicant, as in the present case, suggests that the authorities did not submit the applicants’ case to the careful scrutiny required by Article 3 of the Convention (see Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § 91, 23 July 2015). 55. Against this background, the Court concludes that there was no effective investigation into the applicants’ allegations that they had been subjected to treatment prohibited under Article 3 of the Convention. The Court accordingly finds that there has been a violation of Article 3 of the Convention under its procedural limb. (b) As to the substantive aspect of Article 3 of the Convention
56. The Court has summarised the applicable case-law principles in its judgment in the case of Bouyid (cited above, §§ 81‐90); in the context of conflicting accounts of events, in El-Masri (cited above, § 151) and Hajrulahu v. the former Yugoslav Republic of Macedonia (no. 37537/07, § 84, 29 October 2015); and in the context of arrest, in the judgment of Yusiv v. Lithuania (no. 55894/13, §§ 53-56, 4 October 2016). 57. Turning to the present case, the Court notes that the Government, relying on police records (see paragraph 7 above), contested the applicants’ allegations of police brutality. In this connection they denied that the injuries mentioned in the medical certificates regarding X had been inflicted by police officers. They further pointed to certain inconsistencies in the statements which the applicants and witnesses had given in the domestic proceedings, which the Court should take into account in its assessment of the complaints under this head. 58. Having regard to the material before it, the Court deems incontrovertible the fact that on 19 May 2014, following a report of robbery allegedly committed by two male minors of Roma origin, police intervened at a nearby location, and ten minutes after the reported robbery, apprehended X, as he matched the profile of one of the assailants. Soon after, many onlookers gathered at the scene. There was also a significant police presence (see paragraphs 11 and 19 above). The applicants consistently submitted before the domestic authorities and before the Court that on that occasion the police had also apprehended Y. That fact was confirmed by the civil courts in the compensation proceedings against the first-instance public prosecutor’s office, which established that the police had handed Y over to his father (see paragraph 19 above). On the other hand, the Court notes X’s statement in the context of the proceedings against him (see paragraph 25 above) that Y had managed to escape. The applicants did not provide anything convincing that could undermine the evidential value of that statement. 59. The applicants alleged that the police officers had beaten them at the scene, and in respect of X, also while in police custody. As to the latter, the Court notes that allegations of the ill-treatment of X in police custody were raised only in the applicants’ application to the Sector (see paragraph 10 above). The criminal complaint to the public prosecutor, as well as the applicants’ compensation claims, did not contain any allegations of police abuse of X in police custody (see paragraphs 12 and 18 above). The Court further notes that at no stage before any domestic authority did the applicants seek the examination of X’s officially appointed lawyer in police custody, who had allegedly witnessed the beating (see paragraph 48 above). 60. As regards Y, the Court notes that the allegations in his regard concerned punches, kicks and slaps to his face administered in public by police officers after they had intercepted the applicants. As a result, it was alleged that Y’s face had been red, that he had blood on his mouth and/or nose, that he had urinated in his pants, and that he had been frightened and stressed (see paragraphs 10, 17-19 and 22 above). These allegations were not corroborated with medical evidence, despite the fact that Y, as stated by his father (see paragraph 19 above), had been examined by a doctor, apparently soon after the incident. 61. As regards X’s injuries, the Court notes that the medical certificates of 20 May 2014 (see paragraph 9 above), the authenticity of which was not contested, noted bruising to his head, neck and chest (and scratches on his chest) and the absence of “traumatic changes to the skeleton of the head, chest and neck spine”. Whereas they concluded that those injuries amounted to “bodily injury”, they did not contain any independent detail as to their origin, their timing or the way in which they had been inflicted (see Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 13 and 51, 15 February 2007). Such detail was particularly important in the circumstances of the present case given the fact that some fourteen hours had lapsed between X’s release from police custody and his examination in the Skopje hospital (see paragraphs 7, 9 and 10 above), constituting a considerable delay (see, conversely, Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, §§ 6-8, 10 December 2015, and Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § 13, 22 January 2015). Practice shows that more detailed information on the time when an injury was inflicted can be gleaned from the state of a bruise at the time of examination (see, Hajrulahu, cited above, § 72). 62. Having regard to the foregoing, the Court finds that, six years after the events, and owing largely to the national authorities’ inactivity and failure to carry out an effective investigation into the applicant’s allegations, the Court is not in a position to establish which version of events is the more credible (see Jasar, cited above, § 53). 63. In conclusion, since the evidence before it does not enable the Court to find beyond reasonable doubt that the applicants were ill-treated on the scene, and while in police custody in respect of X, the Court finds that there has been no violation of Article 3 of the Convention on account of the alleged ill‐treatment. 64. The applicants also complained that both their ill-treatment and the subsequent investigation by the public prosecutor showed that they had been discriminated against on account of their Roma origin. Moreover, the failure of the public prosecutor to conduct an effective investigation into the allegations of racial prejudice was in itself a form of institutional discrimination. They relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention, and Article 1 of Protocol No.12. The Court considers that these complaints are to be examined under Article 14, taken in conjunction with Article 3 of the Convention. Article 14 of the Convention reads as follows:
“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.”
65. The Government submitted that the allegations under this head had been premature because the civil proceedings against the Ministry had been still pending. The relevant domestic practice (see paragraph 27 above) suggested that the compensation claim under the Discrimination Act was an effective remedy and offered a reasonable prospect of success. The fact that the applicants had availed themselves of that remedy suggested that they also had considered it effective. They had not put forward any arguments to the contrary. In their subsequent submissions of 29 May 2018 (see paragraph 30 above), the Government further argued that after the civil proceedings against the public prosecutor had been completed, the applicants should have applied to the Constitutional Court, which the Court regarded as an effective remedy for complaints of discrimination. This objection had not been belated because the constitutional complaint could be used only after the exhaustion of the other remedies before the ordinary courts. They also submitted a letter from the Constitutional Court referring to several constitutional appeals lodged by Roma people which had been dismissed on procedural grounds (as stated by the court, no constitutional appeal had been lodged in relation to allegations of racially motivated police brutality). In the same submissions, they invited the Court to reject X’s complaints under this head on grounds of non-exhaustion owing to his statement withdrawing his claim against the public prosecutor (see paragraph 19 above). 66. The Government further maintained that the applicants had failed to make out a prima facie case, let alone to produce evidence to the standard of proof “beyond reasonable doubt”, for the allegations under this head. In this connection they noted that the allegations of racist language used by the police officers had not been raised in the criminal complaint, nor had they been mentioned by the applicants in any other proceedings or in the application to the Court. The statements of witnesses, who were the applicants’ relatives, could not outweigh those deficiencies. They also denied the allegations of “anti-Gypsism” in the respondent State as unsubstantiated. There was nothing to indicate the existence of systemic racism and hostility allegedly displayed by law-enforcement bodies in respect of Roma. The third-party submissions (paragraph 69 below), with which they disagreed, were also insufficient in this regard. 67. The applicants contested the Government’s argument that the complaints under this head should be rejected on grounds of non-exhaustion (given that the civil proceedings had been still pending). They had raised the allegations of racially motivated police brutality in their criminal complaint before the public prosecutor, which the Court accepted as an effective remedy for Article 3 complaints in cases against the respondent State. Although it was not required, they nevertheless tried the civil avenue of redress, but there was no example of domestic practice that that remedy had been effective for complaints such as those raised in the present case. 68. Their complaints under this head had been supported by sufficient prima facie evidence, including evidence showing the use of racial slurs; that police officers had targeted the applicants, on the basis of E.R.’s statement that her assailants had been Roma; the fact that the incident had occurred in a Roma neighbourhood, in front of many of the applicants’ neighbours and relatives; as well as evidence (supported by the third-party intervener, see below) that there was a general climate of anti-Gypsism among the police in the respondent State. The Government had not produced any evidence that the prosecution’s failure to investigate the applicants’ allegations of ill-treatment, unlike the proceedings against X, had not been discriminatory. They invited the Court to take the wider context regarding Roma in the respondent State as explained by the third‐party intervener into account in its assessment of the complaints under this head. A further element was the high number of cases of police brutality vis‐à-vis Roma persons brought to the Court against the respondent State. 69. The HCHR addressed mainly the situation of Roma in penitentiary institutions in the respondent State saying that it was “particularly concerned about the scale of the widespread discriminatory treatment of Roma by law enforcement officials”. 70. The relevant Convention principles concerning a State’s responsibility for racially motivated treatment of victims prohibited under Article 3 of the Convention and its obligation to investigate possible racist motives of such a treatment were summarised in the Court’s judgments in the case of Nachova and Others v. Bulgaria (see, mutatis mutandis, [GC], nos. 43577/98 and 43579/98, §§ 145-47, 160 and 161, ECHR 2005‐VII), in the context of Article 2, which likewise applies to cases under Article 3; the case of Stoica v. Romania (no. 42722/02, §§ 117-19, 126 and 127, 4 March 2008); and the case of Bekos and Koutropoulos v. Greece (no. 15250/02, §§ 63-65, 69 and 70, ECHR 2005‐XIII (extracts)). 71. The Court need not determine whether the complaints under this head should be rejected for non-exhaustion, because this part of the application is inadmissible for the following reasons. 72. As to the complaints that the alleged acts of police brutality of 19 May 2014 were motivated by racial prejudice, the Court firstly notes that it did not find it established beyond reasonable doubt that the applicants were victims of any treatment prohibited under Article 3 of the Convention at the hands of the police (see paragraph 63 above). It nevertheless notes the following. 73. The facts referred to by the applicants, namely that they had been particularly targeted given that E.R. had described the assailants as Roma; that Y had been apprehended notwithstanding that he had been younger than the reported age of the assailants and that the alleged police brutality had occurred in a Roma neighbourhood in front of their neighbours and relatives, cannot, in itself, be regarded as sufficient to infer a racist act in the present case. In this connection, the Court notes that the attack on E.R. had occurred near the same Roma neighbourhood where the police intervened some ten minutes after the reported incident; E.R.’s description of the assailants as Roma cannot lead to the conclusion that the applicants’ Roma origin had any bearing on the police officers’ perception of them. The allegation of racial language used by the officers, which was raised for the first time more than three years after the incident and only in the compensation proceedings against the Ministry and was not supported by evidence, is insufficient in itself for concluding that the respondent State is liable for racist ill-treatment. While potentially relevant, the general information about the alleged police abuse of Roma in the respondent State voiced by the HCHR and intergovernmental bodies, is an insufficient basis for a conclusion regarding the concrete events in the present case (see Nachova and Others, cited above, §§ 153 and 155, and Bekos and Koutropoulos, cited above, § 66). 74. As regards the procedural aspect of the complaints under this head, namely that the respondent State failed to honour its obligation to investigate the possible racist motives of the police in the events of 19 May 2014, the Court notes the following. 75. In the criminal complaint of 3 September 2014, the applicants alleged that the acts of police of 19 May 2014 had been racially motivated. However, the Court observes that in support of those allegations the applicants relied solely on the fact that Y’s age had not matched the reported age of the assailants (see paragraph 12 above). Neither in the criminal complaint nor later in the proceedings before the public prosecutor did the applicants provide details sufficient to reverse the burden of proof. Allegations of racist slurs were raised, for the first time and more than three years after the incident, in the compensation proceedings against the Ministry. Furthermore, they were raised not by the applicants but by Y’s father and brother (see paragraph 22 above). There is nothing to suggest that the applicants brought these statements to the attention of the public prosecutor, the sole authority with competence to investigate them. The applicants have not provided any explanation for this omission. 76. Under those circumstances, the Court considers that the evidential material before the public prosecutor did not constitute plausible information which was sufficient to alert him to the need to carry out an investigation into the applicants’ allegations of racially prejudiced police brutality (see, conversely, Nachova and Others, cited above, § 166). In the absence of concrete corroborating evidence relevant to the applicants’ case, the general information about the alleged police abuse of Roma in the respondent State contained in the reports by the HCHR and intergovernmental bodies, which became available later (see paragraphs 28, 49 and 69 above), cannot, in itself, be regarded as sufficient in this respect. It cannot be considered therefore that the authorities’ obligation to investigate possible racist motives was triggered in the present case. The compensation proceedings against the public prosecutor do not contain anything that could lead the Court to hold otherwise. 77. Finally, in view of the foregoing and on the basis of the available information, the Court is also unable, to conclude that the lack of an effective investigation into the applicants’ allegations of police brutality was, in itself, racially motivated and therefore in violation of Article 14, taken in conjunction with Article 3 of the Convention. 78. Accordingly, the complaints under this head are manifestly ill‐founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see A.P. v. Slovakia, no. 10465/17, § 93, 28 January 2020). 79. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
80. The applicants claimed 15,000 euros (EUR) each in respect of non‐pecuniary damage for the physical trauma and mental stress sustained as a result of racially motivated police brutality. 81. The Government contested this claim as excessive and invited the Court to award the applicants a lower amount if did not find a violation on all alleged grounds. 82. Ruling on an equitable basis, the Court awards each applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 83. The applicants did not make any claim in respect of costs and expenses. 84. Accordingly, the Court does not award any sum under this head. 85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into national the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 5 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Victor Soloveytchik Síofra O’LearyRegistrarPresident