CASE OF HAJRULAHU v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no. 37537/07)
29 October 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Hajrulahu v. the former Yugoslav Republic of Macedonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 6 October 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 37537/07) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Ferid Hajrulahu (“the applicant”), on 13 August 2007.
2. The applicant was represented by Mr Z. Gavriloski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.
3. The applicant complained that he had been held incommunicado and ill-treated by the police, that there had been no effective investigation into his allegations of ill-treatment, and that his conviction had been based on a confession obtained under duress.
4. On 1 October 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1985. He resides in Germany.
6. At around 11 p.m. on 15 July 2005 an anti-tank mine exploded in the courtyard of a police station in Skopje, causing considerable material damage.
A. The events of 16 August 2005
7. On 16 August 2005 an investigating judge of the Skopje Court of First Instance (“the trial court”) ordered (Kri.br.308/2005 and ID.br.921/05) a search of the home and other property belonging to the applicant’s father and the father of F.R. (a co-defendant in the ensuing criminal proceedings, see paragraph 22 below), on account of a reasonable suspicion that relevant items of evidence relating to allegations of terrorism and trafficking in arms would be found.
8. The search was carried out at 9.30 a.m. on the same day, in the presence of the applicant’s father and two neighbours, who acted as witnesses. According to the search record, which was signed by a police officer, the applicant’s father and the witnesses, the following objects were found: a semi-automatic weapon; a case containing nine bullets; ten TNT bullets; a slow-burning fuse and a detonator; an audio tape; CDs; six photographs of the applicant and a piece of paper with a map drawn on it. At the request of the applicant’s father, the search record indicated that he “does not know the origin of the objects found”, and at the request of the attending witnesses the record noted that they “had no comments to make on the work of the police officers”. A certificate of the seized objects was issued to the applicant’s father, which the latter signed.
9. The police officer who had carried out the search submitted an official note, in which he listed all the above objects found in the house of the applicant’s father. The note stated, inter alia:
“The wanted person [the applicant] was not found and according to his mother, he was on a visit, but (the mother) did not want to specify where.”
10. The applicant’s father was taken to a police station for an interview. On that occasion he denied that weapons found in his house belonged to him. He stated that it was possible that they belonged to the applicant, whom he had not seen since 14 August 2005 at 8 a.m., when he (the applicant) had left his house.
11. According to an official record (записник за задржување на лице) of the Ministry of the Interior, a copy of which was included in the file, at 12.30 a.m. on 16 August 2005 the applicant, who had no previous criminal record, was arrested near a department store in a suburb of Skopje by R.J. and P.M., police officers. The record stated the following reasons for his arrest:
“(since the applicant) was not in possession of any identification document and his suspicious movement in the vicinity of buildings which are targets for criminal offences (објекти кои се цел на извршување на кривично дело).”
12. At 12.45 a.m. he was taken to a police station, where he remained until 7 p.m. that day. As stated in the record, the applicant was informed about his rights; he waived the right to be represented by a lawyer; he had no visible injuries, nor were there any signs of illness, alcohol or drug addiction. The applicant signed all four pages of the record separately.
13. At 7 p.m. on 16 August 2005 the applicant was brought before the investigating judge under suspicion of having been involved in the incident of 15 July 2005. According to the court record of that date, which was duly signed by the applicant, he understood the charges against him; he had sufficient command of Macedonian; he had waived the right to an interpreter; and he had stated that he would testify in the absence of a lawyer. In the presence of the investigating judge and a public prosecutor, the applicant stated, inter alia:
“... (referring to the request for investigation) it is true that at 11.15 p.m. on 15 July 2005 I placed an explosive device, namely a round anti-tank mine, together with a fuse and a detonator, in the western part of the courtyard of a police station, B.P... I placed the explosive device, lit the fuse with a lighter, and immediately ran home ... R.S. gave me this explosive ... F.R. was with me all the time ... he was also with me when R.S. gave me the anti-tank device ... I would like to underline that it was a slow-burning fuse which was six to seven metres long; it took a long time to burn and to detonate the device ... I would also like to note that F.R. knew that I was going to place this anti-tank device in B.P. police station. I told him that after we had obtained the device from R.S ... F.R and I agreed to a proposal by R.S. (that we place the device in front of a police station) and went towards Skopje by taxi ... I borrowed an old car from neighbour B., telling him that I wanted to drive around. He lent me the car, which was not registered, and I (with F.R.) took the device and placed it on the floor behind the driver’s seat ... At 11.15 p.m. I left home and walked to this car; I took the anti-tank device ... and carried it as far as the B.P. police station, as I have described above, and then I detonated (the device). Some time after 10 pm. F.R. had called me to arrange to go and set up the device. Indeed, F.R. arrived ... and we both went to the car; we took the device together and we walked towards the B.P. police station. I was carrying the bag with the device. When I went into the police station F.R. left the scene: I do not know where he went. I went to the back of the police station and placed the device. Regarding weapons found in my house on the occasion of a search carried out by the police on 16 August 2005, I had in my possession a semi-automatic weapon with nine bullets; I do not know anything about the ten explosive items, the fuse or the detonator. I had stolen the semi-automatic weapon and the bullets... five days before the explosion in the B.P. police station... I was not carrying the weapon when I placed the device, and the phone that I had in my possession was switched off.”
14. On that day the investigating judge delivered several decisions, by means of which he appointed D.N., a lawyer, to represent the applicant; found of his own motion that the applicant’s detention had been lawful; opened an investigation against the applicant, F.R. and R.S. (the latter was from Kosovo); he also ordered that they be detained on remand for thirty days. All the decisions contained an instruction on legal remedies. They were served on the applicant the same day. They were delivered to his lawyer the next day. No appeal was submitted against any of these decisions.
B. The events of 19 August 2005
1. The applicant’s depositions taken by the investigating judge
15. On 19 August 2005, on the occasion of a regular visit of a judge responsible for the execution of sentences to Skopje detention centre, the applicant asked to give evidence before the investigating judge. On the same day, the investigating judge heard oral evidence from the applicant in the presence of the court-appointed lawyer and the public prosecutor. As indicated in the transcript of the hearing of that date, signed by the applicant, he stated, inter alia:
“I called you because on 16 August 2005 I was beaten and intimidated by the police to force me to testify. I was under duress to testify and threatened with being killed after leaving the prison. All the names they mentioned are unknown to me. I know nothing about the case of which I am accused. I have never been in conflict with the police and I have no idea what a bomb is. Regarding the home search, this is false evidence. There were no weapons or explosives there. That’s all. I agree to be represented by the court-appointed lawyer who is present at the moment. I would like to say that I have not been placed under any pressure by the court. I was just afraid and in a panic due to my previous stay in the police station. Actually, I was afraid when giving the statement ... I must say that everything I said on 16 August 2005 before the judge I was told to say by the police, and was put under strong pressure to do so. All the charges against me are false. I did not commit that crime.”
16. Asked by the public prosecutor to explain why he had not told the investigating judge previously that he had been placed under pressure and beaten by the police, the applicant stated:
“They did beat me, and I was under strong pressure not to tell anything to the judge.”
17. He further stated:
“They were beating me all the time while I was at the police (додека бев во полиција). I had (visible) injuries, but I could not say anything to the judge, as the police had told me not to.”
18. The investigating judge then requested the applicant to take off his clothes and show the injuries he had. As noted in the transcript, the investigating judge described the injuries as follows:
“A yellow-brown bruise on the left upper arm, 7 cm long, in an irregular triangle shape; a dark-red bruise can be seen on the left buttock, 15 cm long, with an irregular rectangular shape. The accused complained of severe pain in his feet, but the court cannot see any injury there ... Light-yellow bruises on both left and right thighs, 15 cm long with an irregular oval shape. No other injuries can be seen.”
2. Expert examination of the applicant’s injuries
19. On the same day the investigating judge ordered an immediate expert examination of the applicant to determine the type, origin and date of the injuries.
20. At 5 p.m. on that day two experts (Z.C. and G.P.) of the Forensic Institute (Институт за Судска Медицина) examined the applicant in the detention centre. In a detailed expert report dated 19 August 2005, the experts noted bruises (twenty-seven in number) on the applicant’s back, chest, stomach, both arms and legs and the left buttock (no injuries were noted on the applicant’s feet). According to the report, the bruises were mostly green and violet in colour. The report further explained that after seven days a bruise became green, and after two weeks yellow. It went on to state that:
“Having regard to (the applicant’s) statement that he had sustained the injuries while he was detained in the police station on 16 August 2005, we can say that, given the noted characteristics of the (applicant’s) injuries, especially their greenish colour, they (the injuries) could not have been inflicted on 16 August 2005. This is because only three days have passed between then and 19 August 2005, the date of the medical examination, and bruises could not acquire such a greenish colour in only three days. More precisely, the injuries noted during the examination are older, and date from at least seven days before the examination.
Given their characteristics, the bruises are mostly external (површински), except in the area of the left buttock, where there is more intensive bruising.”
21. The medical report concluded that the injuries sustained by the applicant had been inflicted by a “blunt dynamic force”. As regards the injuries to the applicant’s arms, the experts stated that they were the result of pressure exerted by parts of a body, including hands. While they could not determine the exact means by which the remaining injuries had been inflicted, they nevertheless specified that they had been caused by beatings. The injuries were to be regarded as bodily injuries.
C. Criminal proceedings against the applicant
22. On 9 September 2005 the public prosecutor lodged an indictment against the applicant and F.R. on terrorism charges. On 26 September 2005 an indictment on the same charges was lodged against R.S.
1. Trial court hearings and depositions of the applicant and witnesses
23. At a hearing held on 8 November 2005 the trial court decided to consider both indictments in one set of proceedings. According to depositions taken on that date, the applicant, who was represented by a lawyer of his own choosing, stated, inter alia, that:
“The accusations described in the indictment, which I contest, are wrong. At about 10.45 p.m. on 12 August 2005, 300 metres in front of my house ... members of special (police) forces jumped on my back and put me in a car ... they took me to a forest, I do not know exactly where ... When they abducted me, there were fourteen or fifteen of them ... In the forest there was a change of driver, and they hooded me and drove me far away in a different direction. We arrived in a house, where they unhooded me; it was a luxurious house. I was told to sit on a chair; uniformed people wearing masks and others in plain clothes arrived. They asked me if I knew why I had been brought there, to which I replied that I had not done anything wrong. They started insulting me ... four people started beating me with plastic bottles and a rubber tube. I stayed in the house for three days. During that time, while my hands and legs were handcuffed, I was held under water in a swimming pool. A big man was trying to force me to confess about the police station, to which I replied ‘to confess what about the police station?’. When they took me out of the pool, other people continued beating me. They ordered me to admit that I had placed the bomb in the B.P. police station. I told them that I had not done that ... they also brought a dog into the house. The dog did nothing to me. They held me under water in the pool three or four more times ... I believe that we were in Veles ... The same uniformed men, who wore masks, brought me [near the department store in Skopje, see paragraph 11 above] and told me to go home. There were other people around. I was wet and could not walk. Men in plain clothes without uniforms or masks handcuffed me and took me to K. police station. They slapped me twice and started interrogating me about the bomb in B.P. police station. I told them that I knew nothing ... They asked me if I knew R.S. and F.R., and I said that I did not know them. I stayed in K. police station from 15 August to the night of 16 August, when they brought me before the investigating judge. I note that while I was in the house in Veles I was given a blank paper which I had to sign because they had beaten me. In Veles I think I signed three blank papers and I’m sure that I saw those papers in the police station changing hands between police officers. The investigating judge also showed them to me. When the judge had them they were no longer blank, but I don’t remember what was written on them. In Veles I was told to say ‘admit that you placed the bomb and we will let you go, we will take you home’.
On 16 August 2005 ... I could not tell the investigating judge that police officers had threatened me, because they had said they would kill my family. What I said to the investigating judge on 16 August 2005 was what I had been told to say by the police officers in Veles. What I said to the investigating judge was invented by the police officers ... I want to say that I was afraid because while in Veles I heard screams and voices saying ‘we caught his father’, so I was convinced that they had captured and tortured my father. I was further told by the police that they had apprehended and taken my father to P. police station, that they had found weapons in my house, and that my father had admitted that they belonged to him. That was a stratagem of the police.”
24. The applicant further denied that he knew F.R. He said:
“This is the first time I have seen him. I do not know him; I do not know where he lives, I know nothing about him. I do not know R.S. nor have I ever heard about him ...”
25. He further stated:
“On 16 August 2005 the investigating judge asked me about weapons, a gun, and some missiles. I was shocked. The investigating judge told me that all those items had been found in my house. I saw the certificate regarding items which had been seized. I do not know who signed it ... (after the certificate was shown to him): the investigating judge did not show this certificate to me. I saw it then for the first time. The signature on it does not belong to my father. The items that the judge read aloud from the certificate had not been found in my house ... [The accused was shown a note referring to Greater Albania and he said]: Maybe I wrote that, I do not remember. Maybe someone from the school wrote it. It was found in my house. I drew it, it was a game. The words that are on the map, I am confused; the words 2010 Jihad, Rida; the interpreter says that the following is written on the map: Greater Albania, Jihad, Ilirida State, Allah Aqbar ... maybe I found this map and maybe I drew it. I do not know what that map means, it was a game ...”
26. The applicant denied that he had spoken on his mobile phone with F.R. and R.S. His phone had been seized by the police while he was in Veles. He confirmed that on 15 July 2005 he had been in possession of his mobile phone and denied that R.S. had called him that day. He further stated:
“... that day (15 July 2005) ... when I was sitting with my friends, we heard an explosion. Everyone went outside to see what had happened. I had some visitors. Someone said a bridge had collapsed, later someone said that a missile had been launched against B.P. police station ... At 11 p.m., the time of the explosion, I was in my neighbourhood. When the explosion happened, I did not have my mobile phone - it was charging. When I arrived home, I saw that there were no missed calls.”
27. Asked by the public prosecutor why he had not revealed, during his examination on 19 August 2005, that he had been abducted on 12 August 2005 and about the subsequent sequence of events, the applicant stated:
“I did not tell the investigating judge, because I was told by police officers in Veles that I should not say anything. What I said today, I also said on 19 August 2005, but the judge did not note it ... I signed the record (of 19 August 2005), but I did not read it. I do not know why the judge did not note down the whole event in Veles and then in K. police station ...”
28. The applicant further named four individuals, including a certain A.A. and S.A., with whom he had allegedly been at the critical time on 15 July 2005. In this connection he asked the court to examine those witnesses.
29. After the court read out his statement of 16 August 2005 given in the pre-trial proceedings, the applicant confirmed the part of that statement indicating that he had been threatened by the Intelligence Service to force him to make the statement.
30. The applicant’s father stated that the police had searched his house in his absence and that he had been forced to sign the search record and the certificate of seized objects. He confirmed that the map of Greater Albania belonged to the applicant. Lastly, he stated that on 15 July 2005, at the time of the explosion, the applicant had been in the house.
31. At a hearing of 29 November 2005, the applicant was shown the map of Greater Albania, which the applicant confirmed that he had found at his school. He was further shown photographs of himself wearing a military uniform and carrying a machine gun. In this connection the applicant stated that the photographs had been taken on the occasion of a religious holiday when it had been possible, for a certain price, to be photographed wearing such a uniform.
32. The trial court also heard oral evidence by A.A. and S.A. A.A. stated, inter alia:
“On 15 July 2005, as on any other night, we met friends outside our doors, because it was very hot. That night [the applicant] was with us ... That night (the following were present) I, S., M.J., as well as A. ... At about 11 p.m. we were outside. At 11.20 p.m. or 11.30 p.m. we were all outside, including S.A. I want to say that many other people were there as well. Then, there was an explosion, everybody went out, we did not know what was going on. At the time of the explosion, [the applicant] was with us ... Ten minutes later someone came out of the house saying he had seen on television that a bomb had exploded at B.P. police station. We stayed there talking. [The applicant] was there as well. On 12 August 2005 we noticed that [the applicant] was absent. He was not there on the 13th either. On 13 August 2005 [the applicant’s] father told us that [the applicant] had been arrested. There were rumours that he had been arrested in connection with the explosion at the police station. That is why I agreed to testify as a witness, to say that [the applicant] did not do it. No one asked me to testify. I volunteered to do it ... I gave a list of everyone who was there that night with [the applicant] to [the applicant’s] father. I gave him that list after [the applicant] had been arrested ... We wanted to vouch that [the applicant] had been with us and that he had not done it.”
33. On being asked by the public prosecutor how he remembered that the applicant had not been there on 12 August 2005, A.A. said:
“Since [the applicant] was normally there every night and was not there that night, his friends were wondering where he was; his friends noticed his absence; I learned about it from them.”
34. S.A. also confirmed that at the critical time on 15 July 2005 the applicant had been outside his house talking with other people. He stated, inter alia:
“That night [the applicant] was with us; he stayed out other nights as well, but I cannot say whether it was every night, because I go out only some nights ... I cannot say exactly whether it was 11 p.m. or 11.15 p.m. when we heard a very loud explosion ... We were standing in front of [the applicant’s] house after midnight, until 1 a.m. ... (the applicant’s) father asked me to testify as a witness... He asked me if I would like to testify in court that (the applicant) had been with us that night; I agreed.”
35. On 27 December 2005 Z.C., the expert doctor who had carried out and signed the medical report regarding the applicant’s injuries of 19 August 2005 (see paragraph 20 above), gave oral evidence before the trial court in the presence of the accused and their representatives. He explained the recovery process of a bruise and its colour changes. He confirmed the veracity of the written report and that the applicant’s injuries had been inflicted at least seven days (or two to three days more than that) before the date of examination.
36. The applicant’s lawyer stated:
“I do not contest the expert report regarding the injuries specified therein and their colour.”
37. At a hearing on 12 January 2006 the public prosecutor made the charge specific, and also accused the applicant and F.R. of trafficking in arms.
2. The trial court’s judgment
38. On 17 January 2006 the trial court convicted the applicant, F.R. and R.S. (in absentia) and sentenced them to eleven, ten and twelve years’ imprisonment respectively. The applicant was found guilty of terrorism and trafficking in arms under Articles 313 and 396 of the Criminal Code (see paragraphs 50 and 51 below). The court further ordered confiscation of the semi-automatic weapon, nine bullets and ten explosive items from the applicant. The convicts were also ordered to compensate for the damage sustained. An indefinite expulsion order (протерување странец од земјата засекогаш) was issued in respect of R.S. The court established that the applicant and F.R., together with R.S., were responsible for the explosion of 15 July 2005 in the B.P. police station, the aim of which was to endanger the constitutional order and public safety.
39. In the judgment, which runs to thirty-one pages, the court reproduced and analysed the statements that the applicant had given in the pre-trial proceedings (16 and 19 August 2005) and at the trial (8 November 2005), as well as the medical report dated 19 August 2005 and the oral evidence of the expert of 27 December 2005. Noting that the applicant’s statements were inconsistent, the court gave weight to his confession statement of 16 August 2005, finding that it contained a clear, complete and logical description of the events of the critical date. It was given in accordance with the law: the applicant had been informed of his rights, and he had read the written transcript of the court hearing and had signed it. It held that that statement was consistent and reliable, because the applicant had given a chronological description of the events; he had also given a detailed description of the device, the place and the means by which he had detonated it, which corresponded to the experts’ reports regarding the incident. The statement of 16 August 2005 was also corroborated with a detailed list of calls on the mobile phones confiscated from the convicted individuals, which confirmed that there had been intense communication between them before and after the incident.
40. The court further established that in the statement of 19 August 2005 the applicant had retracted his confession of 16 August 2005, which he had stated had been given under duress, namely that he had been beaten on that date by police while detained in the police station. On the basis of that testimony, the investigating judge had ordered an expert examination of the applicant. The experts, relying on medical science and practice, had established that the applicant’s injuries had been inflicted at least seven days before the date of the examination (19 August 2005). Accordingly, the injuries had not been inflicted on 16 August 2005 when he had been arrested and detained; they had therefore not been inflicted by the police.
41. The court went on to say that after the expert examination the applicant had concocted another version of the events he had presented in his statement of 8 November 2005. In that statement the applicant had given another description of events, namely that he had not been detained on 16 August 2005 and beaten up in the police station, but that on 12 August 2005 the police had abducted and detained him in a luxurious house in Veles; that he had been held under water in a swimming pool; tied up; and beaten, to make him confess to the crime. The court held that nothing suggested, as implied by the defence, that there had been two periods of detention, the first unlawful (12-16 August) and the second (16 August 2005), lawful. The court held, referring to the decision of the investigating judge (see paragraph 14 above), that the applicant had been detained on 16 August 2005 in accordance with the law.
42. It further found that no evidence had been presented that the applicant had been arrested by the police on 12 August 2005 and ill-treated in a house in Veles. That version of events, according to the court, was fictional and invented in order to match the date when the injuries had been inflicted, as established in the expert report. The court held that the applicant’s statements of 19 August and 8 November 2005 were inconsistent and implausible. In his testimony of 19 August 2005 the applicant had made no comment as regards his alleged abduction on 12 August 2005 and interrogation in Veles. Contrary to the applicant’s argument that he had been scared and confused when he had given his confession statement on 16 August 2005, the court record of his questioning of that date suggested no disorder or lack of capacity for rational perception. Had the investigating judge noticed any indication of unsafety, fear, panic or lack of capacity on the part of the applicant, he would have terminated the questioning.
43. Lastly, the court concluded that the applicant’s confession statement of 16 August 2005 coincided with the motives for committing the crime and the intention to provoke fear and unsafety. The drawing of the map of Greater Albania and photographs of himself wearing military uniform and carrying weapons found in the applicant’s possession confirmed his political determination to create an imaginary, non-existent entity by 2010 through jihad. The court examined the evidence produced by A.A. and S.A., but dismissed it as unreliable, for the following reasons: the witnesses were neighbours of the applicant; the applicant’s house was in the immediate vicinity of the B.P. police station where the explosive had been placed, which had allowed him to leave the scene without being noticed; they had been instructed to provide alibis, but their statements were incoherent.
3. Proceedings before Skopje Court of Appeal and the Supreme Court
44. The applicant appealed against the judgment to the Skopje Court of Appeal. He submitted, inter alia, that he had been convicted on the basis of unlawfully obtained evidence, namely his testimony of 16 August 2005, which had been given under duress. That the applicant had been subjected to police brutality was confirmed by his injuries described in the expert report of 19 August 2005. Besides that medical evidence and his clear description of events as to what had happened between 12 and 16 August 2005, he could not produce any other evidence to support his allegations of abduction and ill-treatment. He further complained that he had not been legally represented when he had given the statement of 16 August 2005, notwithstanding that legal representation was obligatory. Lastly, he contested the lawfulness of the search of his father’s house.
45. At a public session held on 2 June 2006, Skopje Court of Appeal, sitting in a five-judge panel, upheld the trial court’s judgment and dismissed the applicant’s appeal. The court stated:
“The complaints (that the applicant’s conviction had been based on his confession statement given under duress) were the subject of a complete and careful review by the adjudicating panel, which found them unsubstantiated. The trial court did not commit a substantive violation of procedural rules ... since there had been no evidence that (the applicant’s) statement of 16 August 2005 before the investigating judge had been given under duress; ill-treatment; physical assault; or threats. That this statement was lawful was explained by the trial court in detail (on ten pages)...
The trial court, after examining all three statements of (the applicant), gave weight to his statement of 16 August 2005 given before the investigating judge, as lawfully obtained and reliable evidence. The statement of 16 August 2005 is clear; it provides a reasonable description of the entire incident; it gives a chronological account of all details of the manner and place he had met the other two co-defendants; of all activities and preparations pre-dating the incident; of the means by which the crime had been committed; also a description of the device; the length of the fuse; the role of the co-defendants R.S. and F.R.... Details regarding the place where the device had been placed, which could have been known to the applicant as the perpetrator of the crime, matched the on-site examination report; there were also photographs, as well as the expert reports regarding the nature and description of the explosive device and the place where it had been placed...
(The applicant) gave his testimony of 16 August 2005 before the investigating judge, the public prosecutor and a court interpreter, without the presence of the police; he was advised of all his rights under the Criminal Proceedings Act, including the right to remain silent and the right to an attorney; which (the applicant) waived. That he confessed to the crimes was not the result of external pressure or threats, but an act of acceptance and remorse for the unlawful actions.”
46. As regards the right of the applicant to be legally represented at his questioning before the investigating judge on 16 August 2005, the court held that notwithstanding that he had been informed of his right to mount a defence, including the right to an attorney, he had clearly stated that he would give his testimony without a lawyer. He did not mention to the investigating judge that he was in any particular mental state or that he was otherwise unfit to testify. After the investigating judge had ordered the applicant’s pre-trial detention, a court-appointed lawyer was appointed (see paragraph 14 above). That had been done in compliance with section 66 of the Criminal Proceedings Act (see paragraph 53 below). The search warrants had been issued, and the search records had been duly signed by the applicant’s father and the attending witnesses who had attested to the lawfulness of the search carried out in the house of the applicant’s father (see paragraphs 7 and 8 above).
47. The applicant and F.R. appealed against these judgments by means of a request for extraordinary review of a final judgment, which the Supreme Court, with a judgment of 14 February 2007, allowed in part and dismissed the indictment regarding trafficking in arms, which, as found by the Supreme Court, had not been submitted in accordance with the law. The court upheld the lower courts’ judgments in the remaining part and dismissed the applicant’s complaints that his conviction had been based on unlawfully obtained evidence (the statement of 16 August 2005) given allegedly under duress. The court ruled that the lower courts had examined, but nevertheless dismissed, that complaint, providing sufficient reasons for their judgments. The court concluded that the applicant’s conviction had not been based solely on his testimony of 16 August 2005. It rested also on other documentary and verbal evidence, which had been communicated to the defence.
D. Criminal proceedings on account of alleged ill-treatment of the applicant
48. On 7 March 2007 the applicant lodged with the public prosecutor’s office a criminal complaint in which he alleged that he had been subjected to police brutality. In the complaint the applicant outlined his statements given on 16 and 19 August and 8 November 2005, as well as the expert report regarding his injuries admitted in evidence in the criminal proceedings against him. He alleged that an unidentified perpetrator had tortured him. He attached a copy of the medical expert report and the court record of 19 August 2005, as well as a copy of the trial court’s judgment.
49. As no action was taken regarding his criminal complaint, on 25 May 2010 the applicant approached the public prosecutor’s office, seeking that measures be taken to bring those responsible to justice, but he received no reply from the public prosecutor.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
50. Article 313 punishes terrorism and provides for at least three years’ imprisonment.
51. Article 396 punishes illegal trafficking in arms and provides for up to three years’ imprisonment. An aggravated crime is punished with a prison sentence of up to ten years.
B. Criminal Proceedings Act 1997
52. Section 15(2) of the Criminal Proceedings Act 1997, valid at the time, provided that unlawfully obtained evidence, as well as evidence obtained in violation of human rights and freedoms, could not be used in court, and a judicial judgment could not be based on such evidence.
53. Section 66(1) of the Act provided that an accused who was deaf, mute or otherwise unfit to defend him(her)self successfully, or if he or she was charged with a crime for which life imprisonment was prescribed, must be represented by a lawyer at the first examination. Under subsection 2 of this paragraph, an accused who had been remanded in custody must be represented by a lawyer while he or she was in detention.
54. Section 210(7), (8) and (9) of the Act provided that no force or threat could be used against an accused to obtain a confession or statement. The accused could be examined without a lawyer if he or she had explicitly waived that right and defence was not obligatory. A court judgment could not be based on an accused’s statement given contrary to sub-sections 7 and 8 or if the accused’s statement regarding the right to a lawyer was not set out in a court record.
55. Under section 392(1)7 of the Criminal Proceedings Act, as amended on 22 October 2004, a case may be reopened if the European Court of Human Rights has given a final judgment finding a violation of the human rights or freedoms. The same provision is provided for in section 449(1)6 of the Criminal Proceedings Act, which entered into force in 2010 and became applicable on 1 December 2013.
III. RELEVANT INTERNATIONAL MATERIALS
A. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
56. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides, inter alia:
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
B. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 12 to 19 July 2004, Strasbourg, 15 November 2006
57. The relevant parts of the Report read as follows:
“i. the case of A.A.
19. On 10 June 2003 A.A. was summoned to the Kumanovo Police Station for an official talk ... it has been confirmed that he was detained as from 10 am on 10 June 2003 ... The decision to remand A.A. in custody, which was dated 12 June 2003, expressly ordered that the remand imprisonment commence as from the day prior to the date of the decision (i.e., as from 11 June 2003) ... On 20 June 2003, representatives of the Ombudsman’s office visited A.A. in Skopje Prison, following allegations made by the latter of ill-treatment by law enforcement officials and incommunicado detention during the four-day period from 8 to 12 June 2003. The Ombudsman’s representatives observed the injuries displayed by A.A. and set out their conclusions concerning the case in a written document, which was also included in the court file. Their conclusions essentially confirmed A.A.’s allegations of ill-treatment and incommunicado detention during the above-mentioned period ...
At various stages during his trial, A.A. and his lawyers stated that he was abducted in Kumanovo some days prior to 10 June 2003 by a group of persons thought to be UBK officers; the date cited most consistently was 8 June. According to the defendant, the officers - some of whom were masked - placed him in an automobile with no license plates, covered his head with a black bag, and then drove him to a house in a countryside location unknown to him, where he was punched, kicked, and beaten with baseball bats and metal rods and burned with a heated metal object in order to extract a confession. The alleged ill-treatment continued over several days, in different places (villas or cottages) in the countryside; he was forced to memorise a statement to be repeated to the investigating judge, before whom he was finally brought on 12 June 2003...
22. The judge who conducted A.A.’s trial indicated to the delegation that "nothing supported [A.A.’s] allegations" which, as he pointed out, were only first made at trial. Because those allegations had not been made at the defendant’s first appearance before the investigating judge, he considered that they could not be followed up during the phase of the trial ...
ii. the case of R.B.
24. The case of R.B. contains elements which are strikingly similar to the case of A.A. According to information provided to a Commission of the Ministry of the Interior by R.B., he was abducted at 10 am on 23 May 2003 near Kumanovo Police Station by four or five persons who handcuffed him, covered his head with his jacket, and forced him into a vehicle. After a drive of some 2.5 hours, the party arrived at a certain unspecified building, where R.B. was held for five days. During that period, he was ‘ill-treated and beaten on the body with thick wooden sticks’.
26. The delegation discussed the case of R.B. as well as the report of the Commission of the Ministry of the Interior with judges from the Kumanovo Basic Court and the Prosecutor-General. It is clear from those discussions that judicial and prosecutorial authorities were aware of R.B.’s allegations relating to the period between 23 and 29 May 2003 ... However, no action was taken to investigate R.B.’s allegations and other information, even though there were indications of: ill-treatment by law enforcement officials, thought to be UBK officers; incommunicado detention in a clandestine location ...”
43. The information gathered during the July 2004 visit, including as regards reports of incommunicado detention in clandestine locations, continues to raise questions regarding the compliance of UBK officers with the general legal and regulatory framework, despite assurances to the contrary given by the national authorities.”
C. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), from 15 to 26 May 2006, Strasbourg, 13 February 2008
58. The relevant parts of the Report read as follows:
“2. Torture and other forms of ill-treatment
13. For many of the persons, the time of the alleged ill-treatment pre-dated the delegation’s visit by several weeks and any marks which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime. However, in a number of cases, the delegation’s doctors gathered medical evidence consistent with the allegations of ill-treatment either through an examination of the persons concerned or by consulting relevant medical records ...
iii) A third case concerns two persons (F.R. and F.H.) suspected at the time of having carried out the bombing of Bit Pazar Police Station on 15 July 2005. Both men alleged to have been held in unauthorised places of detention, during which time they claimed to have been severely ill-treated (see paragraph 32 in Section B below), before being transferred to police stations in Skopje, where they were ill-treated again. The description below relates to their alleged ill-treatment in Kisela Voda and Karpoš police stations, respectively...
Ř F.H. alleged that he was taken to Karpoš Police Station late on 15 August where he was subjected to punches and kicks, and spent the night handcuffed to a radiator (footnote no.10: On 17 August 2005 F.H. was examined by a doctor at Skopje Prison. His medical file noted: Haematoma under both elbows; haematoma on the left side of his back 8 × 3 cm. Haematoma in the back region; haematoma in the upper part of both legs (on each side); haematoma on both feet) ...
2. Unauthorised places of detention
31. In its 2004 visit report, the CPT indicated once more its concerns regarding incommunicado detention in clandestine locations and the lack of compliance by the UBK with the general legal and regulatory framework. The authorities, in their response, again reassured the Committee that the activities of the UBK were all undertaken in accordance with the law.
Nevertheless, the CPT’s delegation received detailed information, including on the apparent location of such places, that the practice of the UBK of holding persons in incommunicado detention in clandestine locations did occur until at least 2004.
32. The delegation also heard more recent accounts, dating from August 2005, concerning the alleged detention in unauthorised locations of two persons, suspected at the time of being involved in the bombing of the Bit Pazar Police Station (see also paragraph 13, iii), above). Both alleged they were ‘abducted’ on the streets of Skopje by men dressed in civilian clothes. One alleged that he was picked up on 14 August and driven, with a bag over his head, to two different places in the countryside where he claimed to have been severely beaten and subjected to a mock execution and to electric shocks. He was then taken to Kisela Voda Police Station. The second person stated that he was bundled into a car by several officers on 12 August, had a paper bag placed over his head and was driven to a house. Over the course of some three days he was allegedly repeatedly beaten with a stick on his legs and buttocks, and had his penis slammed in a drawer; he also stated that he was thrown into a swimming pool while tied up. On 15 August he was driven back to Skopje blindfolded, released in Georgi Petrov suburb, and then immediately arrested by uniformed police officers, who took him to Karpoš Police Station.
Both men were admitted to Skopje Prison on 16 August 2005, where on the following day their injuries were recorded by the prison doctor (see footnotes 9 and 10 above). Their case was subsequently taken up by the Ombudsman’s Office and, at the hearing concerning their Appeal on 5 June 2006, their lawyers contended that the statements they had made to the police had been extorted after several days of beatings.
33. In the light of the authorities’ categorical denial of unauthorised detentions, the CPT is concerned that elements of the law enforcement agencies may be operating outside the chain of command and control of the Ministry of Interior. To allay such fears, the Committee would have expected the authorities to have initiated a thorough investigation into the above allegations. To date this has not been the case.”
D. Response of the Government of "the former Yugoslav Republic of Macedonia" to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to "the former Yugoslav Republic of Macedonia" from 15 to 26 May 2006, Strasbourg, 13 February 2008
59. The relevant parts of the Response read as follows:
“... In reference to the observations and the recommendations made by the Delegation of the CPT at the occasion of their visit to the Republic of Macedonia in May 2006, as stated in the letter of Ms Silvia Casale, former President of the CPT, sent on 24 November 2006, and also in the letter of 7 May 2007 of Mr. Mauro Palma, current President of the CPT, the competent authorities of the Government of the Republic of Macedonia are submitting their final responses:
The Ministry of Interior
As regards the CPT recommendation to conduct an independent investigation to examine the allegations of detention at secret locations, the Ministry of the Interior would like to underline that the conduct of an independent investigation regarding any complaint against unlawful or unprofessional conduct or violations of rules and regulations by officers of the Ministry of the Interior, of the Security and Counter Intelligence Department, is within the competencies of the Sector for Internal Control and Professional Standards.
Pursuing its competences and following the procedure envisaged in the Ministry’s bylaws, the Sector for Internal Control processed the complaints by the persons F.H. and F.R. submitted through the National Ombudsman of the Republic of Macedonia against the official activities undertaken by authorized officers of the Ministry in apprehending and keeping the above mentioned persons in police custody.
After the conduct of the relevant procedure and after undertaking all measures and activities to establish the facts of the case, the Sector for Internal Control and Professional Standards concluded that in undertaking the official activities in respect of the persons F.H. and F.R. the authorized officers did not overstep their authorities, nor acted in contravention to the legal regulations, i.e. that the allegations contained in the application regarding this case, submitted to the National Ombudsman by the parents of the said persons are without any grounds.
This means that the investigation regarding this case has been indeed conducted by the relevant body of the Ministry of the Interior following the prescribed procedure.
The Security and Counter Intelligence Department once again categorically rejects any allegations of use of any secret locations for conduct of official activities. All facilities in which the officers of the Security and Counter Intelligence Department work are property of the Ministry of the Interior ...”
E. “Human Rights Reports, Bureau of Democracy, Human Rights, and Labor, Macedonia”, US State Department
1. Human Rights Report, March 8, 2006
60. The relevant parts of the Report read as follows:
“... At year’s end the ombudsman was investigating allegations that two ethnic Albanian suspects in a July 15 bomb attack on a Skopje police station were detained without proper legal authority; a PSU [Interior ministry’s sector for internal control and professional standards] investigation determined there were no irregularities involved in the arrest and detention of the two men.”
2. Human Rights Report, March 6, 2007
61. The relevant parts of the Report read as follows:
“... Two ethnic Albanian suspects in a July 2005 bomb attack on a Skopje police station claimed they were detained without proper legal authority. The ombudsman’s office reported that they were unable to file criminal charges with the public prosecutor’s office regarding the allegations because the Ministry of Interior would not provide information on the identity of the officers involved in the alleged misconduct. A PSU investigation determined there were no irregularities involved in the arrest and detention of the two men.”
F. “Annual Report on Human Rights in the Republic of Macedonia in 2001”, Helsinki Committee for Human Rights
62. The relevant parts of the Report read as follows:
“Police overstepping their authority
The violation of legal provisions concerning police authority is still source of many problems in practice. On the one hand, the constitutional provisions follow the concept of human rights and freedoms in specifying the police powers regarding arrest, search, taping and questioning. On the other hand, laws and subordinated acts do not clearly define the police powers; there are no mechanisms for control and efficient punishment in case of violation of the procedure and rules. In such circumstances, the police feels as it is morally justified to reinstate (and violate) the law in view of a proclaimed aim to improve the discovery of crimes and their perpetrators.
The Macedonian police developed a practice, contrary to the constitutional provisions, to arrest suspects, carry out searches and seize objects without a court warrant. Similarly, the suspects are not brought before the court immediately, but, as a rule, they are withheld in the police, often more than twenty-four hours. The police also do not inform the suspects about their rights to remain silent and to have a lawyer before they are interviewed. Sometimes instructions are given in this direction, but in many cases they are incomplete and incorrect. There are more frequent cases of incommunicado detention of persons, namely arrest of persons and their detention at unknown locations, without their families or a lawyer being informed. The contested practice of scant police files concerning treatment with suspects became absurd, [namely there is] a complete absence of any record of persons who are arrested and held by the police. The absence of an adequate registration of detention in a police station generates other violations and impossibility to prove the overstepping by the police of their authority, especially regarding torture and inhuman treatment during arrest and [the suspects’] detention in police station ...
It is of particular concern the involvement of members of (UBK) in the arrest and interview of terrorist suspects. They (UBK members) behave completely beyond prescribed police procedures.
There are no efficient legal means to combat unlawful and wrong police actions. It is not rare that cases in which suspects are beaten and threatened with a view of obtaining information or extracting a confession are not prosecuted. The police and the public prosecutor demonstrate high resistance to investigate overstepping by the police of their authority or they refuse to witness against their colleagues when the law is violated. Some overstepping of the authority is obviously tolerated, even supported by higher police authorities so that no disciplinary measures are taken against the perpetrators or such measures are inadequate to the gravity of the wrongdoing. In the last year, the fight against extremist and terrorist groups was used as an excuse for the erosion of the fundamental guarantees of freedoms and rights ...”
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
63. The applicant complained under Article 3 of the Convention that he had been subjected to police brutality while he had been detained incommunicado between 12 and 16 August 2005. He also complained about lack of an effective investigation into his allegations of ill-treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
64. The Government did not raise any objection as regards the admissibility of these complaints.
65. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. Alleged lack of an effective investigation
(a) The parties’ submissions
(i) The applicant
66. The applicant submitted that there had been prima facie evidence in favour of his allegations of ill-treatment which warranted an investigation by the authorities in conformity with the requirements of Article 3 of the Convention. In this connection he referred to his injuries, whose nature and number had been specified in the expert report. The possible origin of the injuries specified in the report (blunt dynamic force) corresponded to the applicant’s allegations that he had been beaten, while being held incommunicado, with a plastic bottle and a rubber tube (see paragraph 23 above). The number and location of the injuries on his body suggested that they had been inflicted when he had been in a position of restricted freedom to move (restrained) by people who had full control over him. If the authorities had carried out a medical check-up after he had been arrested and before he had been detained, his injuries would have been brought to light in good time. The medical examination of 19 August 2005 was not followed up by an effective investigation by the relevant authorities. The public prosecutor did nothing to investigate his allegations. Likewise, the trial judge had been focused on examining the criminal case against the applicant. The courts had summarily concluded that the applicant’s statement of 8 November 2005 was self-serving and was aimed at avoiding criminal responsibility. Lastly, his criminal complaint submitted to the public prosecutor was to no avail.
(ii) The Government
67. The Government submitted that in the criminal proceedings against him the applicant had presented three different accounts of events. Allegations of ill-treatment were firstly raised in his second statement of 19 August 2005. These allegations lost all credibility after the medical examination of 19 August 2005 specified that the applicant’s injuries were at least seven days old. In order to harmonise his allegations of police brutality with the date of his injuries, on 8 November 2005 he had provided a third version of events in which he had stated, for the first time, that he had been kidnapped by the police on 12 August and held incommunicado until 16 August 2005. They further argued that the applicant and witnesses examined at the trial (see paragraphs 32 and 34 above) had provided inconsistent evidence regarding the date of his alleged disappearance. While the medical evidence attested to his injuries, that evidence was insufficient to conclude that those injuries were related to his allegations of kidnapping and ill-treatment by the police. Accordingly, the applicant had not laid a prima facie case of ill-treatment that would warrant an investigation of his allegations. The latter showed the applicant was intending to avoid criminal liability for the charges against him.
(b) The Court’s assessment
68. The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition on torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII; Corsacov v. Moldova, no. 18944/02, § 68, 4 April 2006; and Georgiy Bykov v. Russia, no. 24271/03, § 60, 14 October 2010).
69. Any investigation into serious allegations of ill-treatment 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 to use as the basis of their decisions (see Assenov and Others, cited above, § 103, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 183, ECHR 2012, and the references cited therein).
70. Furthermore, the investigation should be independent of the executive (see Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of an investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).
71. Lastly, the victim should be able to participate effectively in the investigation (see El Masri, cited above, § 185).
72. The Court notes at the outset as incontrovertible that the applicant had numerous injuries (haematomas) on various parts of his body. That the applicant had bodily injuries was firstly brought to light on 19 August 2005, at the applicant’s second examination by the investigating judge in the detention center in Skopje. At this juncture, the Court notes that it was not informed by any party, nor was any document brought to its attention to that effect, that a prison doctor had examined the applicant before that date (see paragraph 58 above). On 19 August 2005 the applicant displayed his injuries in the presence of the investigating judge, the public prosecutor engaged in the criminal case against him, and the court-appointed lawyer (see paragraph 15 above). The investigating judge noted some injuries in the record of the applicant’s examination of that date (see paragraph 18 above). The nature and position of the injuries were further specified in detail in the expert report of 19 August 2005 (see paragraphs 20 and 21 above). This report was commissioned by the investigating judge and drawn up by the Forensic Institute (see paragraphs 19 and 20 above). The report also established that the injuries had been the result of the use of “blunt dynamic force”. Injuries on the applicant’s arms had been inflicted by exerting pressure, possibly by hands, and the remaining injuries had been caused by beatings. Lastly, the medical report established that the injuries, given their colour at the time of examination, were at least seven days old, which meant that they had been inflicted not later than 12 August 2005. The findings noted in the expert report were further confirmed in the statement, which one of the experts involved in drawing up the report gave at the trial in the presence of the applicant and his lawyer (see paragraph 35 above).
73. According to the applicant’s depositions of 19 August 2005, the above injuries were inflicted “on 16 August 2005 [when he was] beaten and intimidated by police to oblige him to say what they wanted him to” (see paragraph 15 above).
74. In the Court’s opinion, the nature, number and position of the injuries on the applicant’s body, coupled with the applicant’s assertion that they had been inflicted by the police in order to extract a confession from him in relation to the incident of 15 July 2005, were sufficient, as early as 19 August 2005, to raise a reasonable suspicion that they could have been imputed to the State authorities, as indicated by the applicant. The Court considers that at that moment the applicant laid the basis of a prima facie case of misconduct on the part of the security forces of the respondent State, which warranted an investigation by the authorities in conformity with the requirements of Article 3 of the Convention. The applicant’s injuries detailed in the expert report of 19 August 2005, which were brought to the knowledge of the prosecuting authorities at the time, gave rise ipso facto to an obligation under Article 3 of the Convention on the State to carry out an effective investigation (see El Masri, cited above, § 186). However, the public prosecutor took no action to investigate the applicant’s allegations, notwithstanding that she had been present on 19 August 2005 when he had displayed the injuries and had been aware of the experts’ findings. No attempt was made by the public prosecutor to hear evidence from the applicant or to follow any possible lead regarding the alleged ill-treatment.
75. The public prosecutor remained inactive after the hearing of 8 November 2005, when the applicant gave another statement regarding his alleged ill-treatment, in which he had described the location and time, as well as the manner and means by which the injuries had been inflicted. He stated that on 12 August 2005 he had been abducted by members of the special police forces, who had hooded him and driven him to an unknown location which he had later discovered was a house in the city of Veles; that he had been interrogated by police officers, some of whom were uniformed and wore masks and others were in plain clothes, in connection with the bombing of 15 July 2005; that he had been held under water in a swimming pool, threatened with a dog, handcuffed and hit with a plastic bottle and a rubber tube. He had also been threatened that his father would be killed.
76. As noted by the domestic courts, the time of the applicant’s alleged abduction and ill-treatment, as described in this statement, corresponded to the medical evidence (the expert report of 19 August 2005) as regards the age of his injuries. Furthermore, the means by which some of the injuries had been inflicted, as identified in that statement (plastic bottle and rubber tube), corresponded to the type of force (blunt dynamic force) and manner (beatings) described in the expert report.
77. Despite these developments, the prosecuting authorities took no action, although allegations of extrajudicial abduction by police and detention of suspects in clandestine locations were already the subject of public debate as early as 2001 and remained a matter of public record in the following years (see paragraphs 57-61 above). Some of the relevant material referred to the applicant’s case as such. Although nothing suggests that the applicant, at that time, brought this material to the attention of the public prosecutor, it is only reasonable to suppose that it did not remain unknown to the State authorities.
78. The Court further notes that the applicant’s criminal complaint of ill-treatment submitted in 2007 (see paragraph 48 above) was to no avail. The prosecuting authorities took no investigative measure and did not contact the Ministry of the Interior to obtain additional information, a step which is routinely taken in similar circumstances (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, § 21, 15 February 2007; Sulejmanov v. the former Yugoslav Republic of Macedonia, no. 69875/01, § 28, 24 April 2008; Dželadinov and Others v. the former Yugoslav Republic of Macedonia, no. 13252/02, § 40, 10 April 2008; Trajkoski v. the former Yugoslav Republic of Macedonia, no. 13191/02, § 15, 7 February 2008; and El Masri, cited above, § 187). That a considerable time elapsed between the date of the applicant’s alleged ill-treatment and his submitting a criminal complaint on 7 March 2007 is not a determining factor for the applicant’s complaint under this head, since in any event victims of alleged violations of their rights under Article 3 of the Convention are not required to pursue the prosecution of State agents on their own. This is a duty of the public prosecutor, who is better placed in that respect (see Stojnšek v. Slovenia, no. 1926/03, § 79, 23 June 2009, and Otašević v. Serbia, no. 32198/07, § 25, 5 February 2013).
79. Lastly, the Court observes that it is unable to draw any conclusion as to the alleged investigation carried out by the Interior Ministry’s sector for internal control and professional standards (see paragraphs 59-61 above) since it was not informed by the Government (see paragraph 67 above), nor was any document brought to its attention to that effect, that there had indeed been such an investigation.
80. Against this background, the Court concludes that there was no investigation of the applicant’s allegations that the police had ill-treated him. Thus, the Court finds that there has been a violation of Article 3 of the Convention in its procedural part.
2. Alleged ill-treatment of the applicant during his unacknowledged detention between 12 and 16 August 2005
(a) The parties’ submissions
81. The applicant submitted that the court record regarding his arrest of 16 August 2005 did not prove that he had indeed been detained on that date. The nature and number of bodily injuries specified in the expert report, as well as the date when they had possibly been inflicted, confirmed his account of events concerning his incommunicado detention for several days prior to his detention on 16 August 2005. His statement of 16 August 2005 was unlawful, since it had been given under duress occasioning serious fear and threats to his life and the lives of his parents. In his statement of 8 November 2005, which, unlike his statements of 16 and 19 August 2005, was given before the trial judge, the applicant had provided a sufficiently detailed account of his abduction and ill-treatment. It would have been unreasonable to expect him to provide a more detailed description of the relevant events. He concluded that the Government “did not provide sufficient explanation for the summary conclusion of its authorities regarding the alleged torture”.
82. The Government submitted, relying on documentary evidence, that it was undisputed that the applicant had been detained on 16 August 2005. They contested as unsubstantiated the applicant’s allegations that he had been held incommunicado and ill-treated by police. In this connection they argued that the applicant had provided three inconsistent accounts of events, which had varied according to the circumstances of the case and the evidence as it had become available. In his statement of 19 August 2005 the applicant had alleged that he had been ill-treated while detained in the police station on 16 August 2005. In his statement of 8 November 2005 he had provided a different version of events, which would match the medical expert evidence which had become available in the meantime, regarding the age of the injuries. This latter version of events was short on detail: specifically, it did not contain a description of the men who had allegedly held him incommunicado (their age, how they communicated, and so on). Nor did the applicant describe how he was kept and fed. Furthermore, his testimony of that date was inconsistent with the statements made by the applicant’s mother and father in the pre-trial proceedings (see paragraphs 9 and 10 above). Furthermore, the statement by the applicant’s father regarding the applicant’s alleged disappearance was inconsistent with the testimony of A.A. (see paragraph 32 above). That the applicant’s allegations of ill-treatment were not credible was further supported by the fact that the applicant’s parents, who lived in a single economic unit with the applicant, did not report that their son had gone missing for four days.
83. Accordingly, the Government concluded that it could not be established “beyond reasonable doubt” that the applicant had been abducted by police on 12 August 2005, held for four days incommunicado, and ill-treated by the police. The domestic courts, which had examined the applicant’s case at three levels of jurisdiction, had provided sufficient reasons why those allegations could not be regarded as established “beyond reasonable doubt”.
(b) The Court’s assessment
(α) General principles
84. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention - to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention - conditions its approach to the issues of evidence and proof. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).
85. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Rupa v. Romania (no. 1), no. 58478/00, § 97, 16 December 2008). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002).
(β) Application of these principles in the present case
86. The Court notes that the Government contested the applicant’s allegations of abduction, incommunicado detention and ill-treatment by the police. Having regard to their denial and the absence of any investigation into the applicant’s allegations (see paragraph 80 above), the Court considers that an issue arises as to the burden of proof in this case and in particular as to whether it should shift from the applicant onto the Government.
87. In this connection it emphasises that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny”, even if certain domestic proceedings and investigations have already taken place (see El-Masri, cited above, § 155).
88. The Court observes first of all that the applicant’s grievances raised before it are identical to those which he advanced before the judicial authorities of the respondent State in the criminal proceedings against him (see paragraphs 22-47 above). The 2006 CPT Report regarding the respondent State which referred to the applicant’s case (see paragraph 58 above), contained sufficiently coherent description of the circumstances regarding the place, time and duration of his unacknowledged detention. The alleged incident happened when allegations of extrajudicial abduction by police and detention of suspects in unacknowledged locations in the respondent State were discussed by relevant fora (see paragraphs 57, 58 and 61 above). In this connection the Court underlines the “striking similarity” which the CPT noted in its 2004 Report (see paragraph 57 above) between two cases of alleged abduction, incommunicado detention and ill-treatment by the police. The Court notes that the methods employed for the applicant’s alleged abduction (that it was carried out by men wearing masks; that hoods were used; that he was placed in a car and transported to a house) were similar with those used in the two cases discussed in 2004 CPT Report, as well as regarding F.R., the co-defendant in the applicant’s case, who was allegedly abducted on 14 August 2005 (see paragraph 58 above). Allegations of deprivation of liberty of a person in an extraordinary place of detention outside any judicial framework were found, admittedly under different circumstances, convincing and established beyond reasonable doubt by the Court in the El-Masri case (see, El-Masri, cited above, §§ 167 and 236).
89. The Court further notes that the applicant was arrested on 16 August 2005 at 12.30 a.m. near a department store in a suburb of Skopje, far from his house and the B.P. police station which had been attacked in the incident of 15 July 2005. According to him, he had been left there, “wet” and unable to walk, after he had been released by his captors from the house in Veles. As noted in the record of his arrest, he had been apprehended since he “was not in possession of any identification document and (due to) his suspicious movement in the vicinity of buildings which are targets for criminal offences”. The record contained no further detail. It did not specify that the applicant was suspected of being involved in the bomb incident of 15 July 2005, but it nevertheless triggered investigating measures related to that incident (see paragraphs 7 and 8 above).
90. Lastly, the Court observes the applicant’s numerous injuries on various parts of his body (see paragraph 72 above). The time, manner and means by which those injuries had been allegedly inflicted, as described by the applicant, corresponded to the findings of the medical experts which became available during the criminal proceedings. The Court has already found that their nature, number and position on the body were sufficient to raise a reasonable suspicion that they could have been imputed to the State authorities (see paragraph 74 above).
91. In view of the above, the Court is satisfied that in the special circumstances of the case there is prima facie evidence in favour of the applicant’s version of events and that the burden of proof should shift to the Government.
92. The Government contested the applicant’s allegations that he had been abducted, held incommunicado and ill-treated by the police for several days before 16 August 2005 as unsubstantiated (see paragraphs 82 and 83 above). Similarly, the domestic courts rejected these allegations because they had not been supported by any evidence (see paragraphs 42 and 45 above). In so doing they analyzed the applicant’s depositions made before the judicial authorities.
93. The Court observes that the applicant raised these allegations for the first time at the hearing dated 8 November 2005 during his first examination by the trial judge (see paragraph 23 above). Admittedly, as argued by the Government and the domestic courts, he did not mention them in his depositions made before the investigating judge. According to the applicant, this was due to fear that he would be beaten and killed (see paragraph 15 above). The Court does not consider it unreasonable that a victim of an ordeal, as alleged by the applicant, may feel constrained to disclose the truth soon after his release. Furthermore, it is highly unlikely to expect from a victim of a clandestine operation organized and executed by law-enforcement forces of a State, as alleged by the applicant, to secure any tangible evidence in order to shed direct light on events which lie within the exclusive knowledge of the authorities. The Court accepts that the evidence produced by the applicant’s parents (see paragraphs 9 and 10 above) did not fully match the applicant’s version of events. However, that does not, in its view, refute the fact that the applicant’s whereabouts were unknown before his arrest of 16 August 2005. In this latter context was A.A.’s statement given at the trial (see paragraph 32 above).
94. In such circumstances, the Court considers that the Government have failed to provide a satisfactory and convincing explanation as to the origin of the applicant’s injuries and the actual circumstances in which they were inflicted. The lack of any investigation contributed to their inability in this respect. Accordingly, they did not provide satisfactory explanations to account for the applicant’s fate between 12 and 16 August 2005 to meet their burden of proof.
(ii) Alleged ill-treatment of the applicant
(α) General principles
95. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V, and Labita, cited above, § 119). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010).
96. In order for ill-treatment to fall within the scope of Article 3, it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).
97. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita, cited above, § 120). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007).
98. In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see El-Masri, cited above, § 197). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000-VII).
99. The Court has already found that the applicant’s account is sufficiently persuasive and that his allegations under this Article are established “beyond reasonable doubt”. It remains to be ascertained whether the treatment to which he was subjected infringed his rights under Article 3 of the Convention.
100. In this connection the Court notes that the applicant’s ordeal started on 12 August 2005 when considerable number of police officers abducted him near his house in Skopje. He was forcibly put in a car, hooded and driven to an unknown location until he arrived in a house in Veles. He was interrogated in relation to the incident of 15 July 2005 by uniformed people wearing masks and people in plain clothes. The applicant remained captured for three days, during which he was beaten with a plastic bottle and rubber tube all over his body. According to the medical evidence, he had twenty-seven bruises on his back, chest, stomach, arms and legs and the left buttock. During his detention, the applicant was held on several occasions under water in a swimming pool while his legs and arms were handcuffed, which made him being in a state of vulnerability. He was also threatened with a dog, which, in the Court’s view, was not a spontaneous act, but it was premeditated and calculated in a deliberate and intentional manner.
101. The Court is convinced that the applicant’s abduction and incommunicado detention for three days in a house, an extraordinary place of detention outside any judicial framework, which was covertly organised and executed by the security forces of the respondent State, intimidated the applicant on account of his apprehension as to what would happen to him next and must have caused him emotional and psychological distress. He undeniably lived in a permanent state of anxiety owing to his uncertainty about his fate. The actual treatment during the interrogation sessions to which he was subjected must be regarded as having caused him considerable physical pain, fear, anguish and mental suffering. The Court notes that the above-mentioned measures were used in combination and were intentionally meted out to the applicant with the aim of extracting a confession about his alleged involvement in the bomb incident of 15 July 2005 (see, mutatis mutandis, Dikme v. Turkey, no. 20869/92, §§ 82 and 95, ECHR 2000-VIII).
102. In the Court’s view, such treatment amounted to torture in breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
103. The applicant complained of a violation of Article 6 of the Convention in that his conviction had been based on his confession statement of 16 August 2005, which had allegedly been obtained under duress. The relevant part of Article 6 of the Convention reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
104. The Government did not raise any objection as regards the admissibility of these complaints.
105. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. The parties’ submissions
106. The applicant referred to the relevant case-law of the Court arguing that he had not had a fair trial, because his conviction had been based on unlawfully obtained evidence, namely his statement of 16 August 2005 obtained in violation of his rights under Article 3 of the Convention. Despite the fact that the courts had admitted other evidence, the authorities had failed to take reasonable measures to adduce evidence in order to establish the credibility of the applicant’s allegations of ill-treatment.
107. The Government submitted that the police and court records regarding the applicant’s detention and examination before the investigating judge had been drawn up in accordance with law. The applicant had not appealed against any of these records, although he was entitled to do so (see paragraph 14 above). They reiterated that his confession statement of 16 August 2005 had been detailed, concise and consistent. It had to be analysed together with other admitted evidence, namely search records, evidence regarding conversation on mobile phones between the co-defendants at the relevant time, as well as statements by witnesses proposed by the applicant (the latter evidence was proposed as regards the applicant’s whereabouts at the time of the explosion, and not regarding his alleged abduction by police on 12 August 2005). The domestic courts had made a detailed examination of this evidence and given sufficient reasons for their judgments.
2. The Court’s assessment
108. The Court reiterates that the use of evidence obtained in violation of Article 3 in criminal proceedings raises serious issues as to the fairness of such proceedings. The Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (Gäfgen, cited above, §§ 165 and 166). Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe (see Jalloh, cited above, § 105, and Harutyunyan v. Armenia, no. 36549/03, §§ 64-66, ECHR 2007). It notes in this connection that Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see paragraph 56 above) provides that statements which are established to have been made as a result of torture shall not be used in evidence in proceedings against a victim of torture. The Macedonian criminal law also provided that criminal convictions could not be based on evidence obtained in violation of human rights and freedoms, including the prohibition of torture (see paragraph 52 above).
109. The Court notes that in the proceedings before the domestic courts the applicant claimed that his confession statement of 16 August 2005 during his interrogation by the investigating judge had been unlawfully obtained, namely that it had been made under duress. The trial court cited this statement and regarded it as reliable. The Court of Appeal found no doubts as to its credibility and stated that “(it was) an act of acceptance and remorse for the unlawful actions” (see paragraph 45 above). The domestic courts used that statement as evidence in the criminal proceedings against the applicant. They expressly based their findings of fact concerning the execution of the crime committed by the applicant - and thus the findings decisive for the applicant’s conviction for terrorism on the confession statement made by the applicant.
110. The Court refers to its above finding that the applicant had been subjected to torture by the security forces of the respondent State during his unacknowledged detention between 12 and 16 August 2005. In the absence of any plausible explanation, it finds that the applicant’s confession statement of 16 August 2005 was made as a consequence of that treatment and the fear that he had experienced thereafter. In such circumstances, it considers that the use of such evidence rendered the applicant’s trial as a whole unfair.
111. There has accordingly been a violation of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13, TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION
112. Lastly, the applicant complained under Article 13 of the Convention that there had been no effective remedy in respect of his complaints under Article 3 of the Convention. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
113. The Government submitted that the applicant did not have an “arguable claim” of violation of his rights under Article 3 of the Convention.
114. The applicant argued that the public prosecutor’s failure to decide his criminal complaint had prevented him from taking over the prosecution as a subsidiary prosecutor. Furthermore, he maintained that there was a practice in the respondent State on the part of the prosecuting authorities not to investigate cases of alleged ill-treatment by law-enforcement officials.
B. The Court’s assessment
115. Having regard to the grounds on which it has found a violation of the procedural aspect of Article 3, the Court declares the complaint under this head admissible, but finds that no separate issue arises under Article 13 of the Convention (see Jašar, cited above, § 62; Sulejmanov, cited above, § 55; and Dželadinov and Others, cited above, § 77).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
116. 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.”
117. The applicant claimed non-pecuniary damage in the range between 3,000 and 7,000 euros (EUR) “depending on the number of violations found”. He did not claim any compensation for pecuniary damage.
118. The Government contested this claim as unsubstantiated.
119. The Court considers that the applicant must have sustained non-pecuniary damage as a result of the violation found. It awards him EUR 7,000 in respect of non-pecuniary damage as requested, plus any tax that may be chargeable.
B. Costs and expenses
120. The applicant also claimed EUR 1,010 for costs and expenses incurred “in the Strasbourg proceedings”. This figure concerned legal fees for his legal representation for the preparation of the application and the comments submitted in reply to the Government’s observations; consultation with the applicant and his mother; for submission of the criminal complaint before the public prosecutor; as well as for postal expenses (copy of payment slip in support). The applicant’s representative stated that he had represented the applicant pro bono, and requested that any award under this head be paid directly to him.
121. The Government contested these claims as unsubstantiated and excessive.
122. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the available material and the above criteria, the Court considers it reasonable to award the full sum claimed by the applicant, plus any tax that may be chargeable to the applicant. This amount is to be paid into the bank account of the applicant’s representative.
C. Default interest
123. 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,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention on account of the failure of the authorities to investigate the applicant’s allegations of police ill-treatment;
3. Holds that there has been a violation of Article 3 of the Convention on account of the ill-treatment by agents of the respondent State;
4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use of the applicant’s confession statement of 16 August 2005 in the criminal proceedings against him;
5. Holds that it is not necessary to examine the complaint about the lack of an effective remedy under Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) 1,010 EUR (one thousand and ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be payable into the bank account of the applicant’s representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 29 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen András
 All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 244 and without prejudice to the status of Kosovo.