CEDH · CASELAW;COMMUNICATEDCASES;ENG — 1 octobre 2013

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } FIRST SECTION Application no. 37537/07 Ferid HAJRULAHU against the former Yugoslav Republic of Macedonia lodged on 13 August 2007 STATEMENT OF FACTS The applicant, Mr Ferid Hajrulahu, is a Macedonian national, who was born in 1985 and lives in Skopje. He is represented before the Court by Mr   Z.   Gavriloski, a lawyer practising in Skopje. The facts of the case, as submitted by the applicant, may be summarised as follows. At around 11 pm. on 15 July 2005 an anti-tank mine exploded in the courtyard of a police station in Skopje, which caused a considerable material damage. A.     The applicant’s examination of 16 August 2005 On 16 August 2005 the applicant, who had no previous criminal record, was brought before an investigating judge of Skopje Court of First Instance (“the trial court”) in connection to the incident described above. According to the court record of that date, which was duly signed by the applicant, he had understood the charges against him; he had a sufficient command in Macedonian; waived the right to have an interpreter; and he had stated that he would testify in the absence of a lawyer. The applicant stated inter alia : “... (referring to the request for investigation) it is true that at 11,15 pm. on 15 July 2005 I put the explosive device, notably round anti-tank mine, together with a wick and an explosive capsule, in the western part of the courtyard of a police station B.P... I put the explosive device, set on fire the wick with a lighter and immediately ran home ... R.S. has given me this explosive ... F.R. was all the time with me ... he was also with me when R.S. had given me this anti-tank mine ... I would like to underline that the wick was slowly-burning, it was six to seven meters long and it took longer to burn and to activate the anti-tank mine ... I would also like to note that F.R. knew that I would put this anti-tank mine in the police station B.P. I told him that after we had taken the mine from R.S... I and F.R accepted a proposal of R.S. (to put the mine in front of a police station) and drove with a taxi towards Skopje ... I took an old car from neighbour B. to whom I told that I want to drive around. He lent me the car, which was not registered, and I (together with F.R.) took the mine and put it on the floor behind the driver’s seat ... At 11,15 pm. I left my home and walked to this car; I took the anti-tank mine ... and carried it until I entered into the police station B.P., as I described above, and then I activated (the mine). After 10 pm. F.R. called me in order to go to set up the mine. Indeed, F.R. arrived ... and we both went to the car; we took the mine together and we walked towards the police station B.P. I was carrying the bag with the mine. When I entered into the police station, F.R. left the scene, I don’t know where to. I went behind the police station and placed the mine. Regarding weapons found in my house on the occasion of a search carried out by police on 16   August 2005, I had in possession a semi-automatic gunfire with nine bullets ... which I had stolen ... five days before the explosion in the police station B.P... The night when I put the explosive, I did not carry the gun, and the phone that I had in my possession, was switched off.” B.     The events of 19 August 2005 On 19 August 2005, on occasion of a regular visit of a judge to Skopje detention centre, the applicant requested to be brought before the investigating judge. On 19 August 2005 the investigating judge heard oral evidence from the applicant in the presence of a court-appointed lawyer and the public prosecutor. As indicated in the court record of that date, signed by the applicant, he stated inter alia : “... On 16 August 2005 I was beaten and subjected to a pressure by police what to say. I was under duress to testify and threatened to be killed after I would leave the prison. All the names that they have mentioned were unknown to me. I know nothing about the case of which I’m accused. I have never been in conflict with police and I have no idea what is a bomb. Regarding the home search, it is not the right evidence. There are no weapons and explosive materials. 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 was not under any pressure by the court. I was just afraid and in panic due to my previous stay in the police station. Actually, I was afraid when giving the statement ... I must say that all what I have previously said on 16 August 2005 before the judge I said as having been told by the police, under strong pressure. All the charges against me are wrong. I have not committed that crime.” Asked by the public prosecutor to explain why he had not told the investigating judge that he had been under pressure and beaten by the police, the applicant stated: “They have beaten me and I was under strong pressure not to tell anything to the judge.” He further stated: “They have beaten me all the time while I was in police ( додека бев во полиција ). I had (visible) injuries, but I could not say anything to the judge, as told by the police.” The investigating judge then ordered the applicant to take off his clothes and show the injuries. As noted in the court record, the investigating judge described the injuries as following: “A yellow-brown bruise on the left upper arm, 7 cm long, in an irregular triangle shape; a dark-red bruise can be noticed on the left buttocks, 15 cm long, in irregular rectangular form. The accused complained of a strong pain in his feet, but the court cannot see any injury ... Light-yellow bruises on both left and right thighs, 15 cm long in an irregular oval form. Other injuries cannot be noticed.” The same date, the investigating judge ordered an expert examination of the applicant regarding the type, origin and date of the injuries. At 5 pm. that date, two experts of the Forensic Institute ( Институт за Судска Медицина ) examined the applicant. In a detailed expert report of that date, the experts noted bruises on the applicant’s back, chest, stomach, both arms and legs and left buttocks. According to the report, the bruises were mostly of green and violet colour. The report further explained that after seven days a bruise became green and after two weeks, yellow. Having regard to the applicant’s statement that he had sustained the injuries while having been detained in the police station on 16 August 2005, the report stated that: “... given the noted characteristics of the (applicant’s) injuries, especially their greenish colour, we can say that they (the injuries) could not have been inflicted on 16   August 2005. It is so since until 19 August 2005, the date of the medical examination, three days have passed and bruises could not get, after three days, such a greenish colour. More precisely, the injuries noted during the examination are older, at least seven days before the examination.” The medical report concluded that the injuries sustained by the applicant were to be regarded bodily injury. C.     Criminal proceedings against the applicant On 9 September 2005 the public prosecution’s office lodged an indictment against the applicant and F.R. on account of terrorism. On 26   September 2005 an indictment on the same account was lodged against R.S. At a hearing held on 8 November 2005, the trial court decided to consider both indictments into single proceedings. According to the depositions taken 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 pm. on 12 August 2005, 300 meters 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 don’t know exactly where ... When they abducted me, there were 14-15 persons ... In the forest, the driver changed, they hooded and drove me far away in a different direction. We arrived in a house, they unhooded me; it was a luxurious house. I was told to seat on a chair, uniformed persons wearing masks and persons in plain clothes arrived. They asked me if I knew why I had been brought, to what I replied that I have not done anything wrong. They started insulting me ... Four persons started beating me with plastic bottles and a rubber tube. I stayed in the house for three days. During that time, while handcuffs were put on my hands and legs, I was completely drowned in a swimming pool. A big guy was forcing me to admit about the police station to which I replied ‘what to admit about the police station’. When they took me out of the pool, other people continued beating me. They ordered me to admit that I have placed the bomb in the police station B.P. I told them that I had not done that ... they brought also a dog in the house. The dog did nothing to me. They drowned me again in the pool 3-4 times ... I believe that we were in Veles ... The same uniformed persons, who wore masks, brought me [to a location in Skopje] and told me to go home. There were other people. I was wet and could not walk. Persons in plain clothes without uniforms and masks handcuffed me and took me to a police station K. They slapped me twice and started interrogating me about the bomb in the police station B.P. I told them that I knew nothing ... They ask me if I knew R.S. and F.R. and I said that I did not know them. I stayed in the police station K. from 15 August until 16 August at night 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 have 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 have 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 since they said that they would kill my family. What I said to the investigating judge on 16 August 2005 had been what I had been told to say by the police officers in Veles. What I said to the investigating judge had been invented by the police officers ... I want to say that I was afraid because while in Veles, I’ve 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 a police station P., that they had found weapons in my house and that my father had admitted that it had belonged to him. That was a strategy of the police.” The applicant further denied that he knew F.R. He said: “This is the first time I see him. I don’t know him; I don’t know where he lives, I know nothing about him. I neither know R.S. nor have I ever heard about him ...” 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 don’t know who had signed it ... (after the certificate dated 18 August 2005 was shown to him): the investigating judge did not show this certificate to me. I see it 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 containing a white paper of Great Albania and he said]: Maybe I have written it, I don’t remember. Maybe someone from the school has written it. It was found in my house. I have drawn it, it was a game ... maybe I have found this map (of Great Albania) and maybe I have made it. I don’t know what that map means, it was a game ... ... that day (15 July 2005) ... when I was sitting with my friends, we heard the explosion. All people went outside wondering what happened. I had some visitors. Someone said that the bridge fell down, later someone said that a missile was launched against the police station B.P. ... At 11 pm., the time of the explosion, I was in my neighborhood. When explosion happened, I did not have my mobile phone - it was recharging. When I arrived home, I saw that there were no missing calls.” He also said: “I did not tell to the investigating judge (that he had been abducted on 12 August 2005 and about the subsequent sequence of events) since I was told by police officers in Veles that I should not say anything. What I said today, I had also said on 19   August 2005, but the judge did not note it ... I signed the minutes (of 19 August 2005), but I did not read it. I don’t know why the judge did not note down the whole event in Veles and then in the police station K. ...” The applicant further named four individuals, including certain A.A. and S.A., with whom allegedly he had been at the critical time on 15 July 2005. In this connection he asked that the court examine those witnesses. At a hearing of 29 November 2005, the applicant was shown a map of Great Albania, which the applicant confirmed that he had found in his school. He was further shown photographs of him 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 certain price, to be photographed wearing such uniform. The trial court also heard oral evidence by A.A. and S.A. A.A. stated inter alia : “On 15 July 2005, as any other night, we met with friends in front of our doors because it’s very hot. That night [the applicant] was with us ... At about 11 pm. we were outside. At 11,20 pm. or 11,30 pm. we were all outside, including S.A. I want to say that there were many other people as well. Then, there was an explosion, everybody went out, we didn’t know what was going on. At the time of the explosion, [the applicant] was with us ... Ten minutes later someone came out from the house saying that he had seen at television that a bomb had exploded in the police station B.P. We remained discussing. [The applicant] was here as well. On 12 August 2005 we noticed that [the applicant] was absent. It was the same on the 13 th . On 13 August 2005 [the applicant’s] father told us that [the applicant] had been arrested by police. There were rumors that he was taken in relation to the bomb-issue in the police station. That is why I accepted to testify as a witness in order to say that [the applicant] did not do it. No one asked me to testify. I voluntarily applied ... I gave a list of persons who were that night with [the applicant] to [the applicant’s] father. I gave this 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.” On the question by the public prosecutor how did he remember that the applicant was absent on 12 August 2005, A.A. said: “Since [the applicant] was present every night; he was not there that night; his friends were asking themselves where he was; his friends noticed that; I learnt from them.” S.A. also confirmed that during the critical time on 15 July 2005 the applicant had been outside his house discussing with other people. On a request by the applicant’s father, S.A. accepted to testify that the applicant had been with them the critical night. On 27 December 2005 one of the expert doctors who had carried out and signed the medical report regarding the applicant’s injuries of 19   August   2005 (see above), produced oral evidence before the trial court in the presence of the accused and their representatives. He explained the recovery of a bruise and its colour-changing. He confirmed the veracity of the written report and that the applicant’s injuries had been inflicted at least seven days (or 2-3 days more) before the date of examination. The applicant’s lawyer explicitly stated that he did not contest the expert report regarding the injuries specified therein and their colour. On a hearing of 12 January 2005 the public prosecutor specified the indictment and further accused the applicant and F.R. of trafficking in arms. On 17 January 2006 Skopje Court of First Instance 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. The court further ordered confiscation of the semi-automatic gunfire, nine bullets and ten items of explosive from the applicant. The convicts also were ordered to compensate the damage sustained. The court established that the applicant and F.R., together with R.S., who was unreachable, were responsible for the explosion of 15   July   2005 in the police station B.P., the aim of which was to endanger the constitutional order and public safety. In the judgment, 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 of 19   August 2005 and the oral evidence of the expert of 27 December 2005 (see above). Noting that the applicant’s statements were inconsistent, the court gave weight to his confession statement of 16 August 2005 finding that it had contained clear, complete and logical description of events of the critical date. It was given in accordance with the law, namely the applicant had been informed of his rights; had read the written transcript of the court record and he had signed it. It held that that statement had been consistent and reliable since the applicant had given a chronological description of the events; he had given a detailed description of the mine, place and manner in which he had activated it, which had 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 persons, which confirmed that there had been an intensive communication between them before and after the incident. The court further noted that in the statement of 19 August 2005, the applicant had stated that he had been beaten on 16 August 2005, while having been detained in the police station. After the expert had established that the applicant’s injuries had been inflicted, at least, seven days before the date of examination (19 August 2005), the applicant had construed another version of events presented in his statement of 8 November 2005. In this connection the court held that no evidence had been presented that the applicant had been arrested by 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. Lastly, the court also examined the evidence produced by A.A. and S.A., but disregarded them as unreliable. On a public session held on 2 June 2006, Skopje Court of Appeal upheld the trial court’s judgment and dismissed appeals by the convicted persons in which they challenged, inter alia , the validity of the applicant’s statement of 16 August 2005. The court accepted the reasoning given by the trial judge and confirmed that there had been no evidence that that statement had been given under duress. It further found that the applicant’s testimony of 16   August 2005 had been given without the presence of the police, which meant that his confession had not been the result of an external pressure or threat, but an act of understanding and grief for his unlawful actions. Accordingly, there was nothing unlawful in the actions of the police and the investigating judge. Lastly, the court dismissed the remaining complaints finding that the trial court’s judgment had contained sufficient reasons. On 14 February 2007 the Supreme Court partially accepted a request of the applicant (and F.R.) for an extraordinary review of a final judgment and dismissed the indictment regarding trafficking in arms, which, as found by the Supreme Court, had not been submitted in accordance with the law. It upheld the lower courts’ judgments in the remaining part dismissing 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 not been unknown to the defense. D.     Criminal proceedings on account of alleged ill-treatment of the applicant On 7 March 2007 the applicant lodged with the public prosecution’s office a criminal complaint in which he alleged that he had been subjected to police brutality. In the complaint the applicant described 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 (see above). He alleged that an unidentified perpetrator had tortured him. He attached a copy of the medical report and the court record of 19 August 2005, as well as a copy of the trial court’s judgment. After the Registry sought information from the applicant whether there have been any activity regarding his criminal complaint, on 25 May 2010 the applicant addressed the public prosecution’s office seeking that it takes measures in order that those responsible be brought to justice. As stated by him, he received no information from the public prosecutor since he had introduced the criminal complaint. COMPLAINTS The applicant complains under both the substantive and procedural limbs of Article 3 of the Convention. He alleges that he was subjected to police brutality while having been detained by police between 12 and 16   August   2005. He also complains about lack of an effective investigation into his allegations of ill-treatment. In this connection, he also alleges violation of Article 13 taken in conjunction with Article 3 of the Convention. Relying on Article 6 of the Convention, the applicant complains that his conviction was based on his confession statement of 16 August 2005, which allegedly was unlawfully obtained, namely under duress. QUESTIONS TO THE PARTIES 1.     In the light of the applicant’s allegations of police brutality, raised in the domestic proceedings and before the Court, has he been subjected to ill-treatment, in breach of Article 3 of the Convention? 2.     Was there prima facie evidence in favour of the applicant’s version of events that would warrant an investigation by the authorities in conformity with the requirements of Article 3 of the Convention? If so, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? 3.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention? 4.     In the determination of the criminal charge against him, did the applicant have a fair hearing as required by Article 6 § 1 of the Convention? In particular, did the admission in evidence of his confession statement of 16 August 2005, purportedly in breach of his rights under Article 3 of the Convention, and the domestic courts’ reliance on that evidence to convict the applicant, impair the fairness of the criminal proceedings in question?