Latest human rights report on fyrom presented

[Truth Bearer]

Latest human rights report on Macedonia presented

Skopje /14/09/ 13:59

Children's rights are increasingly violated in Macedonia, there are irregularities in distribution of budget funds for non-government sector, and increased use of hate speech was noticed.

These are some of the registered cases of human rights breach in the last two months, contained in the latest report of the Helsinki Human Rights Committee in Macedonia.

"In last month alone there are two large cases of infringement of children's rights that raised controversy in the Macedonian public", says the text that contains detailed information about abuse of child labor in high temperatures, from no less than the Government.

The Helsinki Committee (HC) also remarks on irregular distribution of budget funds for the non-government sector, explaining that this Government, like all other before her, practically decided to aid certain non-government organizations that considers close".

According to HC, hate speech was registered in many occasions, most typical example being the speech of Todor Petrov, president of World Macedonian Congress at the 36th meeting of Macedonian emigrants in Trnovo.

As a good example for media not succumbing to instrumentalization from the authorities, Telma TV is pointed out, who announced that would not broadcast images of police's "spectacular" arrests in the future.

Helsinki Committee in its report also remarks on the failure to apply the law on free access to information, and specifically to the Ministry of Justice for not allowing visit to Penal-Correctional Facility "Prison Skopje" - Skopje. /end/

[Truth Bearer]

R E P O R T

ON THE HUMAN RIGHTS SITUATION IN THE REPUBLIC OF MACEDONIA,

JUNE 2007


1. PUBLIC EVENTS AND VIOLATIONS OF THE DEMOCRATIC PRINCIPLES
1.1 Special investigation measures
1.2 Only political pressure is effective for the minister Manevski
1.3 Inexistence of Administrative Court
1.4 The case of dismissal of judge Popchevska
2. VIOLATIONS OF THE ECONOMIC AND SOCIAL RIGHTS
2.1 The case of Violeta Josifova
2.2 The case of employees in the Ministry of Interior-Department of Interior Bitola
3. POLICE AND JUDICIAL CASES
3.1 The case of the school/boarding school “Goce Delchev“ – Ljubanci
3.2 The case of Cvetanka Milchevska, Veles



1. PUBLIC EVENTS AND VIOLATIONS OF THE DEMOCRATIC PRINCIPLES
1.1 Special investigation measures
With regard to the application of the special investigation measures and the obligation to respect the human rights, the Helsinki Committee published a special analysis in May. In this analysis, the case of a group of Customs officials suspected of committing the crime of taking bribe was pointed to as one of the cases from the case law of the Republic of Macedonia with serious clues to abuse of the special investigation measures.

In the case of the accused Customs officials from the Deve Bair border crossing, which ended these days in individual convictions for all of them, the Helsinki Committee thinks that there were particularly serious violations of the imperative provisions of the Law on the Criminal Procedure (hereinafter referred to as: LCP), especially in the sense of application of special investigation measures and use thereof as evidence in these procedures, in the light of Article 15 Paragraph 2[1]of the LCP, which provision provides that evidence obtained illegally can’t be used in a court procedure and can’t be the basis for passing a sentence.

In the case against three accused Customs officials, regarding the submitted request for protection of the legality, the Supreme Court revoked the Decision on the local jurisdiction of the Court of First Instance Skopje 1 and returned the case to be decided upon again. In spite of this, the Court of First Instance Skopje 1, through its Criminal court panel, stated itself competent for the trial, thus failing to comply with the instructions of the highest court in the Republic of Macedonia.

Afterwards, the Prosecutor’s Office for organized crime and corruption decided on its own to file an indictment before the Court of First Instance in Kumanovo for three of the accused.

According to these accusations, each of these three Customs officials is prosecuted for the individual deed of accepting bribe. This means that the basic prerequisite for using special investigation measures as evidence in this procedure is not fulfilled since a separate procedure is conducted for each of these three Customs officials, and the act was not committed in a group. Therefore, in the meaning of Article 142 - b paragraph 1[2]of the LCP and Article 122[3] of the Criminal Code (CC), such special investigation measures can’t be applied nor presented as evidence because they are contrary to the cited imperative provisions.

The Court of First Instance in Kumanovo, acting in the line of duty upon objection to an accusatory act for one of these cases, was absolutely right to apply the LCP and adopted a Decision on segregation of the special investigation measures – DVD for audio-visual recording and Minutes of the interrogation of a person with a hidden identity.

Therefore, the Helsinki Committee greets the act of the Court of First Instance in Kumanovo with regard to the application of the LCP in this specific case with the segregation of the records.

Using the right to appeal, the Public Prosecutor that worked on this case laid an appeal before the Criminal panel of the Appeal Court in Skopje, claiming that the special investigation measures in this concrete case of bribery were lawful because there was allegedly a justified suspicion that the act had been committed in a group at the moment of issuing the Decision on the application of the special investigation measures.

At great surprise of the Helsinki Committee and of the wider legal profession community, the Criminal panel of the Appeal Court in Skopje adopted a Decision to accept the appeal of the Public Prosecutor and determined that the special investigation measures could be used in these three concrete cases because they were lawful.

The Helsinki Committee is shocked with the given explanation as to why the special investigation measures are lawful according to the Criminal panel. Their explanation is actually pure copying of the appealing allegations of the Public Prosecutor’s Office, as well as taking a stance that since there was a justified suspicion that the act was committed in a group setting at the moment of issuing of the Decision on taking these measures, those measures could be applied in this procedure regardless of the fact that this was not a group.

This Decision is unlawful and it breaches the position of the judicial authority in the Republic of Macedonia as a separate branch of power, so this attitude of the Court Panel is nothing else but supporting rather than correcting the illegal action of the Public Prosecutor’s Office.

This behavior introduces a so far unnoticed precedent in the case law of the Republic of Macedonia, and from now on for literally every criminal offence irrespective of whether it was committed in a group or not, even for banal criminal offences, it will be possible to use special investigation measures since the Criminal panel of the Skopje Appeal Court already took a position that the special investigation measures were lawful just because of the fact that there was a suspicion that the act was committed in a group at the moment when the Decision on the use of these measures was issued.

Even if this is so and let’s assume that the special investigation measures were lawful at the moment of issuing the Decision on the use thereof, they couldn’t be applied in the further course of the procedure because there was no group. Therefore, we think that this application of the special investigation measures represents flagrant violation of the right to privacy, which is one of the basic human rights.

Therefore, the Helsinki Committee IS CALLING UPON the Supreme Court of the Republic of Macedonia, in case of a legal remedy in the further course of the procedure, to correct the mistake of this court in order not to open room for further violation of the human rights.



1.2 Only political pressure is effective for the minister Manevski
The public hearing about the draft Laws on the Public Prosecutor’s Office and on the Council of Public Prosecutors was certainly one of the most successful hearings among our (expert) public. The Helsinki Committee, in its input to it, i.e. in the special analytical paper entitled as “Staying stubborn to the detriment of the reforms”, noted: “The public hearing on these draft laws showed a frontal contradiction between the movers (the Government represented by the Ministry of Justice) and the professional public. In the case of the latter, these laws will create the environment in which the employees in the judiciary, primarily in the public prosecution segment thereof, will need to fulfill their function every day. In this exclusiveness of the stances, the unwillingness of the mover - from the very beginning of the process of drafting of these laws until the expected final versions that will go to the Parliament for adoption – to listen to the remarks given by the profession is scandalous. This rigidity is closer to arrogant demonstration of force, rather than to supremacy of their arguments in relation to those offered by the prosecutors’ guild.“

In the meantime, the representatives of the major political parties, i.e. those represented in the Parliament, sat down and settled some of the misunderstandings that emerged during the public hearing. Although it is not fully clear if the agreement is still valid, it is undisputable that the Government (and the relevant Minister) agreed with certain concessions.

The “stubbornness“ of the mover with regard to the remarks given by the profession and the later acceptance of almost the same requests - this time of the representatives of the political parties - is just a proof for the Helsinki Committee that only the political pressure is effective for the Minister of Justice, Mr. Manevski, and for the Government. This is in direct collision with the essence of the judicial reforms, which is about avoiding any kind of political influence on the work of the judiciary.



1.3 Inexistence of an Administrative Court
There has been no court to decide on administrative disputes in the Republic of Macedonia for more than a month, a function that was so far performed by the Supreme Court of the Republic of Macedonia. Notably, pursuant to the Law on Administrative Disputes (Official Gazette No. 62 of 22 May 2006), a newly established Administrative Court as a court of first instance was supposed to start settling the administrative disputes in the Republic of Macedonia, whereas the Supreme Court of the Republic of Macedonia would decide on the exceptional legal remedies[4].

The transitional and final provisions of the Law on Administrative Disputes, more specifically Article 69 thereof, stipulates that: “This law shall enter into force on the eighth day since the day of its publication in the "Official Gazette of the Republic of Macedonia", and its application shall start after one year from the day of its entry into force.“[5].

Despite the fact that more than one month has lapsed since the date when the application of this law was to begin, the Administrative Court has not been established yet because the authority that is responsible for the election of judges - the Judicial Council - is not completed yet.

No matter that the Administrative Court has not started to function yet, the Supreme Court of the Republic of Macedonia, acting in accordance with the Law on Administrative Disputes, decided to stop deciding on administrative cases upon the start of the application of this law, which we find to be a 100% correct decision of this court. Notably, Article 66 Paragraph 1 Point 1 stipulates as follows: “the administrative cases that have not been solved before the Supreme Court by the day of entry into force of this law shall be taken over by the Administrative Court“.

In his statement for the daily newspaper “Utrinski vesnik“[6] about this gap in the court system of the Republic of Macedonia, the Minister of Justice Mr. Mihajlo Manevski said that the Government of the Republic of Macedonia already accepted the draft amendments proposing prolongation of the time limit for the entry into force of the Law on Administrative Disputes, and they should be adopted by the Parliament in a summary procedure.

Regardless of the announcements that amendments to the Law on Administrative Disputes will be enacted in a summary procedure (whereby the time limit for the entry into force of this Law will be prolonged), the Helsinki Committee thinks that the existence of such a gap in the court system of the Republic of Macedonia is unacceptable and unjustifiable, and that such an attitude towards the judicial reforms only confirms the frivolity of the institutions of the system. More important than this is the protection of the rights of the citizens of the Republic of Macedonia. With the non-functioning of the Administrative Court, the citizens whose rights and interests are in jeopardy and who are waiting for this court to protect them remain unprotected, and their right remains just a dead letter.



1.4 The case of dismissal of the judge Popchevska
In its previous monthly report (for May), the Helsinki Committee wrote about the existence of clues to violation of the dismissal procedure in the case of the judge Snezana Gerovska Popchevska for the case “Sheepfold“. Besides over the violation of the procedure and the consequences thereof, we also expressed concern over the application of a “selective approach that ... depends on the media exposure of certain cases“, and we entertained suspicions that the case “ended in “amnesty” for several participants, for whom no investigation was initiated for unknown reasons“.

With regard to the analysis of this case, the President of the Judicial Council, Mr. Bekir Iseni, in his statement given for “Utrinski vesnik“ dated 21 June 2007, said: “If the Helsinki Committee has a desire and interest in monitoring the human rights, it should first make efforts to obtain an opinion on the specific case.“

The Helsinki Committee “made efforts to obtain an opinion“ before coming out in public, thus addressed the Judicial Council on 27 April 2007 with a request for obtaining information about the procedure of dismissal of the judge Snezana Gerovska Popchevska, with the view to clarify the alleged clues to violations of the procedure. We didn’t receive an answer, but got a “moral“ in a medium instead. Therefore, we submitted an urgent letter to the Judicial Council on 3 June 2007 asking for official data and we hope that the Council will at least inform us on the already taken decision on termination of the procedure against one of the female judges involved in this case, in which Snezana Gerovska Popchevska bore the whole responsibility.

By the way, regarding the case of the convict Ibraim Sulejmani (for whom the President of the Judicial Council expressed a view in an interview given for “Utrinski vesnik“ that the case should have been transferred to the Hague or the procedure should have been stopped, and announced investigation of the possible responsibility of the judges), the Helsinki Committee sent a letter to the Judicial Council asking for information regarding the establishment of possible elements of incompetent and careless work of the judge and requested an analysis of the case “from the moment of bringing the criminal charges until the decision of the Supreme Court“.

When preparing analysis for individual cases, the Helsinki Committee is always mindful of the need to obtain information from both sides and the need to infer conclusions on the basis of the data obtained. However, in cases where the Committee requested, but didn’t get an answer, i.e. official explanation about the clues to certain violations committed by the addressed party, the analysis in such cases gets nonetheless published in order to protect the public interest and the possibilities for prevention of future violations of similar nature that can be identified through the case.

The Helsinki Committee is still waiting for official data from the Judicial Council.



2. VIOLATIONS OF ECONOMIC AND SOCIAL RIGHTS
2.1 The case of Violeta Josifova
Mrs. Violeta Josifova is a Macedonian national who through her own firm “VEKTRA M“ – Belgrade, bought out on 28 April 2004 70% of the socially owned capital of the chemical industry “Zupa” – Krushevac, Republic of Serbia.

However, as a result of the amendment of the national legislation of the Republic of Serbia, the sale agreement was unilaterally terminated, whilst Mrs. Josifova was not returned the money that she had paid for the purchase of the socially owned capital in the chemical industry “Zupa“.

In order to have her rights protected, Mrs. Josifova as a Macedonian national turned to the Government of the Republic of Macedonia for help. Namely, on 24 October 2005 she filed a request for protection of an investment in the Republic of Serbia according to the Law on Ratification of the Agreement between the Government of the Federal Republic of Yugoslavia (FRY) and the Government of the Republic of Macedonia (RM) on mutual encouragement and protection of the investments[7].

Ms. Josifova informed us that since the submission of the request until the present moment, even though more than one year has lapsed since then, the Government of the Republic of Macedonia has taken no concrete steps to protect her rights.

In relation to this case, the Helsinki Committee sent a written communication to the Government whereby we requested information as to which activities have been undertaken with regard to the request of Mrs. Josifova for protection of her investment in the Republic of Serbia.

Pursuant to Article 2 Paragraph 2 of the Law on Ratification of the Agreement between the Government of the Federal Republic of Yugoslavia and the Government of the Republic of Macedonia on mutual encouragement and protection of the investments: “The investments of investors from any contracting party shall enjoy at all times fair and equal treatment, full protection and security within the territory of the other contracting party“. Furthermore, this Agreement provides that the treatment of the investments of investors from the other contracting party must not be treated in a less favorable way than the one provided to the domestic investors or third country investors, whereby national treatment and treatment of the most favored nation is provided de jure to the Macedonian investors in the Republic of Serbia and vice versa[8].

Article 8 of this Agreement regulates how disputes will be settled with regard to the interpretation and application of the Agreement. This Article provides that disputes will be settled first of all through negotiations between the contracting parties, and if they don’t succeed in it within six months since the onset of the negotiations, the dispute will be submitted at the request of one of the contracting parties to an Arbitration Court, the decision of which will be binding for both contracting parties.

The Government of the Republic of Macedonia informed us on 19 March 2007 that at the session of the Government held on 19 May 2006, Informative Paper regarding the request for protection of the investment in the Republic of Serbia and Montenegro (VEKTRA - M), including certain conclusions, was adopted.

In the meantime, Mrs. Josifova addressed us again and informed us that except for the adoption of the conclusions at the said session of the Government, no other concrete measures have been undertaken, and her rights have not been protected yet in spite of the existence of a protection mechanism.

Therefore, on 26 April 2007 the Helsinki Committee addressed the Government of the Republic of Macedonia again and asked for information about the measures and activities that are taken with regard to the implementation of the conclusions adopted at the session of the Government held on 19 May 2006, and about the reasons for the long duration of the procedure for protection of the property and legal interests of Mrs. Josifova.

No answer to this communication and to the urging letter sent on 1 June 2007 has been received yet.

The Helsinki Committee is reminding the Government of the Republic of Macedonia that one of its basic rights and duties is to protect the rights and the interests of the citizens of the Republic of Macedonia no matter if those interests are inside or outside the country. In this case, the Government has a concrete mechanism to protect the rights of Mrs. Josifovska, but the passive attitude of the Government makes us infer that it lacks sufficient will to spring to the defense of the rights of Mrs. Josifovska.



2.2 The case of employees in the Ministry of Interior-Department of Interior Bitola
A group of employees in the MoI’s Department of Interior in Bitola filed a lawsuit before the Court of First Instance in Bitola asking to be paid a higher salary for extra working hours for the period between 1 March 2000 and 1 March 2001, as well as for the period between 1 August 2001 and 31 December 2001. The Court of First Instance in Bitola reached a verdict (No.236/2002) accepting the complaint of the complainants and laying the MoI under the obligation to pay the difference in salary for the above-mentioned period. This verdict has been confirmed by the Appeal Court in Bitola by means of another verdict (No.1521/2003).

With regard to this verdict, the Public Prosecutor filed an application to the Supreme Court for protection of the legality, which was accepted and the previous verdicts were modified, whereby their initial request is rejected as unjustified.

In this case, of particular importance is the fact that the Supreme Court reached a verdict on 11 February 2004, and the legal representative of the complainants received it as late as on 15 March 2007. During this period, the complainants were paid the money due, but they were not aware that as of that date the State would be requesting the money back because of the unfounded acquisition thereof.

It is said in the explanation of the verdict of the Supreme Court that the Court does not contest the right of the complainants provided in the Law on Labor Relations[9] and in the Collective Agreement of the MoI[10], which stipulate that the employee’s salary will be increased for 40% for work after the full working hours. However, the Supreme Court, using as a starting point Article 171 of the MoI’s Collective Agreement that conditions the application of Article 72 (regarding the exercise of rights from employment) with the availability of funds in the Budget, kept to the formal barrier that there were no funds provided in the Budget for this purpose and stated that this would only be applicable when the necessary funds were provided.

On the other hand, the two lower courts thought that the failure to provide funds in the Budget of the Republic of Macedonia, which is a condition for them to be paid according to Article 72 of the Collective Agreement, should not result in a derogation of the rights of the employees provided in laws and bylaws, and that it must not be an obstacle to the exercise of these rights.

As a result of this Decision of the Supreme Court, not only that the employees were not able to exercise their legal rights, but they were even sued for unfounded acquisition of funds by the Republic of Macedonia, i.e. the Ministry of Interior. In this procedure, they are requested to pay back the money for the overtime that they received on the basis of a final verdict, and to pay an interest for the past period!!???

The Helsinki Committee thinks that the Supreme Court should be protector of the rights of the citizens, which is something that is stipulated in the law[11], rather than being partial towards the State and protector thereof with regard to the payment of Budget funds - like in this particular case. Providing funds in the Budget is an obligation of the State in order for these rights of the employees to be effectuated rather than just provided for on paper.

The rights of the workers, as a segment of the economic and social rights, is a declared commitment of the State through a series of international ratified documents that are incorporated in the Macedonian legislation. In this concrete case, the Supreme Court, as the highest court in the country, MUST protect the rights of the workers and correct the mistakes of the lower courts, rather than ignoring the individual interests and rights for the benefit of the State interest. This situation de facto leads to the obvious mistrust of the citizens in the judicial system and in the legislation that is in force.



3. POLICE AND COURT CASES
3.1 The case of the school/boarding school “Goce Delchev“ – Ljubanci
The Helsinki Committee reported on this case exactly one year ago. Namely, the president of the association “Rubicon” and representatives of the First Children’s Embassy in the World “Megjashi” informed the Helsinki Committee that violent behavior of one of the teachers against some of the students was noticed in this institution, which was followed by a notification to all the authorities responsible for the resolution of this case.

With regard to this case, the State Educational Inspectorate carried out an inspection on which it drafted a report stating the following, inter alia: ... the State Educational Inspectorate entertains a justified suspicion that the teacher N.N. mistreated both physically and psychologically the children from this boarding school.“

Following this, the Director was suggested to remove the teacher from work pursuant to Article 83 of the Law on Labor Relations. Instead of this, the teacher was only fined by the then Director of the institution in the amount of 5% of the last monthly wage during a period of 3 months. As a result of the failure to enforce the measures ordered to him, a misdemeanor procedure was initiated against the Director.

After the full examination of the case and the contacts with all the parties involved in this case, the Helsinki Committee brought criminal charges against the teacher, which was rejected by the District Prosecutor’s Office – Skopje.

Following the rejection of the criminal charges, and after receiving Power of Attorney from the parents of the children for whom there is grounded suspicion that they were mistreated by the teacher, the Helsinki Committee filed a subsidiary private complaint against one of the teachers in this institution who is under a grounded suspicion of committing the following criminal offences:

- Torture and other cruel, inhuman or humiliating behavior and punishment pursuant to Article 142 Paragraph 1 of the Criminal Code (CC);

- Misuse of official position and authorization pursuant to Article 353 Paragraph 3 in connection with Paragraph 1 of the Criminal Code; and

- Neglecting and mistreating a juvenile pursuant to Article 201 Paragraph 3 in connection with Paragraph 1 of the CC.

At the moment, this case is in the investigation department of the Court of First Instance Skopje 1 and we still have no information at all as to which activities have been undertaken with regard to this case, notwithstanding the several communications sent to the court.

The most regrettable thing in this story is the fact that in the meantime this teacher was rewarded by being promoted into a Director of this institution, instead of being removed from the workplace until the court procedure is over.

The Helsinki Committee reminds one of the Convention on the Rights of the Child, more specifically of the Article 3[12] thereof, which states that the best interests of the child will be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. In addition, Article 19[13] of this Convention clearly determines that the State is OBLIGED to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence. In this concrete case, the passive attitude of the State and its unwillingness to provide appropriate protection of the children is evident, despite the fact that the children were placed in this institution based upon a Decision of the Center for Social Work.



3.2 The case of Cvetanka Milchevska, Veles
Mrs. Milchevska is a person with lost working ability counted as of 25 March 1997, which was established by means of a Decision of the Pension and Disability Insurance Fund issued on 2 August 1997.

By means of a Decision No. 18994 dated 16 September 1997, the Pension and Disability Insurance Fund – local subsidiary in Veles – does not recognize her right to disability pension because of the non-fulfillment of the condition of having at least 12 years length of service, counting that the applicant has a pensionable period of 10 years and 8 months.

Mrs. Milchevska appealed this Decision to the Commission for deciding in the second instance on cases of pension and disability insurance. The Commission rejected the appeal as unfounded (Decision No.3277 dated 24 October 1997), considering that the client as a seasonal worker, who had worked for definite periods of time during the period 1982 – 1994, has a pensionable period of only 10 years and 8 months.

Dissatisfied with this Decision, Mrs. Milchevska initiated an administrative dispute before the Supreme Court, which reached a verdict (No.790/2000) whereby her appeal was accepted, and the contested Decision of the second-instance authority was revoked. In the process of reaching the verdict, the Supreme Court was guided by the final verdict of the Court of First Instance in Veles registered under the No.2320/97 of 7 July 1998, and by the modification of the verdict by means of a Decision dated 3 February 1999, whereby it was established that money should be paid for contributions for the complainant Cvetanka Milchevska for the period 1984 – 1994, whereby the client acquires 15 months and 21 day length of service. According to the Supreme Court, this period is considered pensionable period and therefore the Supreme Court “entrusts the authorities, when deciding again, to take into consideration the Court’s indications of the time that the complainant had spent in compulsory pension insurance according to the verdict of the Court of First Instance in Veles, for which the relevant contribution has been paid “.

Notwithstanding the concrete instructions that the Supreme Court gave the second-instance commission, the latter rejected once again the request of Mrs. Milchevska, following which the Supreme Court repeated these instructions in the verdict registered under No.1958/2002 of 7 October 2004, indicating that the administrative authorities should make sure not to apply the law to the detriment of the client, thus making sure that the time spent in compulsory insurance be relevant for determining a disability pension. In this verdict, the Supreme Court indicates that pursuant to Article 62 of the Law on Administrative Disputes, the authorities are obliged, when deciding again, to act in accordance with the instructions of the Supreme Court, and they are bound by the legal opinion of the Court.[14]

For the third time, the Supreme Court decided on the same case with verdict No.201/2005 because of the same decision of the first instance and the second instance authorities about this case, which fully neglected its indications. In spite of everything, the Supreme Court did not reach a verdict on the merits once again; instead, it revoked the decision and returned the case for retrial.

Mrs. Milchevska, because of the status quo situation with the administrative authorities which are persistently refusing to recognize her length of service and are repeating the same Decisions, submitted a new, fourth in a row complaint to the Supreme Court on 14 April 2007, which has not been decided upon yet.

The case of Mrs. Milchevska is just another confirmation of disrespect of the legal obligation of the lower administrative authorities to comply with the instructions of the Supreme Court. At the same time, the Supreme Court also bears responsibility for this ping-pong situation because despite the possibility provided in the Law on Administrative Disputes[15] to reach a verdict on the merits, it failed to take such a step three times (with the third judgment as well), and it just revoked the Decision of the Commission.

It is exactly for such a situation of the Supreme Court versus the administrative authorities that the European Court of Human Rights reached a verdict establishing that the Republic of Macedonia breached the right to a hearing within reasonable time, i.e. Article 6 of the European Convention on Human Rights.[16]

In this verdict, the European Court indicates that the national authorities, by failing to comply with the instructions of the Supreme Court as the highest court instance, are at the same time disregarding the concerned interest of the client, similarly as in the case of Mrs. Milchevska, who can’t achieve her right to disability pension for as many as 10 years.

As in its previous reports[17], the Helsinki Committee indicates that this situation MUST be improved as soon as possible and that one should correct the mistakes which could lead to new verdicts of the European Court of Human Rights for identical reasons, which would give out a picture of frivolity, legal immaturity and unwillingness to correct the mistakes and to continue in a direction of improvement of the judicial reforms.





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[1] Article 15 Paragraph 2: “Evidence obtained in an illegal manner or by way of violating the freedoms and rights determined by the Constitution, the law and the ratified international agreements, as well as the evidence derived from them, shall not be used and the court decision shall not be based on them.“

[2] In the Law on Amendment of the Law on the Criminal Procedure (“Official Gazette of the Republic of Macedonia” No. 74/04), a new subtitle (“Special investigation measures”) is added by means of Article 51, as well as five new articles: 142-b, 142-c, 142-d, 142-e and 142-f. Article 142– b Paragraph 1 provides that “For the purposes of providing data and evidence necessary for successful conduct of the criminal procedure that can’t be otherwise collected or the collection of which would be associated with significant difficulties, for criminal offences for which a prison sentence of at least four years is prescribed as well as for criminal offences for which a prison sentence of up to five years is prescribed, for which there is justified suspicion of being committed by an organized group, gang or other criminal association, undertaking special investigation measures may be ordered: ...“.

[3] Article 122 of the Criminal Code: “Group, gang or another criminal association or organization shall mean at least three persons who associated in order to commit criminal offences, this number encompassing the organizer of the association.“



[4] Article 4 of the Law on Administrative Disputes:

Administrative disputes in the Republic of Macedonia shall be settled by:

- the Administrative Court as court of first instance, and

- the Supreme Court of the Republic of Macedonia shall decide on the exceptional legal remedies.

[5] This means that the application of this law began on May 29, 2007.

[6] Dated 28 May 2007

[7] Official Gazette No. 69 dated 1996.

[8] Article 3 of the Law on Ratification of the Agreement between the Government of the Federal Republic of Yugoslavia and the Government of the Republic of Macedonia.

[9] Article 74 of the Law on Labor Relations that was valid at the moment of reaching of the verdict: “The employee shall be entitled to an increased salary for working on holidays, for night shifts and for extra work longer than 40 hours in the working week, in the amount determined by the Collective Agreement.“



[10] Article 72 of the MoI’s Collective Agreement.

[11] Article 5 Paragraph 1 of the Law on Courts: (1) The courts shall protect the freedoms and the rights of the human being and the citizen as well as the rights of the other legal entities unless this is under the jurisdiction of the Constitutional Court of the Republic of Macedonia according to the Constitution.



[12] Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or

protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as

competent supervision.



[13] Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

[14] Pursuant to Article 39 Paragraph 2 of the Law on Administrative Disputes, the competent authority is obliged to act as determined in the Verdict of the Supreme Court and to adopt a new administrative act. Pursuant to Article 62 of the same law, if the competent authority is to adopt another act instead of the revoked administrative act, it shall be bound by the legal understanding of the court, as well as by the remarks of the court with regard to the procedure.



[15] Article 63 of the Law on Administrative Disputes: “ If the competent authority, after the revocation of the administrative act, adopts an administrative act contrary to the legal understanding of the court or contrary to the court’s remarks with regard to the procedure, following which the complainant files a new complaint, the court shall revoke the contested act and, as a rule, shall decide the matter itself by means of a verdict. Such verdict shall replace the act of the competent authority in all aspects.“

[16] Case Dumanovski versus Macedonia, application No.13898/02, final sentence dated July 3, 2006.

[17] Please see the analysis of the verdicts of the European Court of Human Rights against the Republic of Macedonia with regard to the violation of the right to a hearing within reasonable time prepared by the Helsinki Committee and published on: ÀÃ*Ã*ëèçÃ* Ã*Ã* ïðåñóäèòå Ã*Ã* Åâðîïñêèîò ñóä

Monthly report for June 2007

[Truth Bearer]

Press release regarding the communication released by the
Information Service of Democratic Party of the Albanians



The Helsinki Committee for Human Rights of the Republic of Macedonia is expressing concern over the explicit manifestation of fascistic attitudes and the use of radical hate speech in the communication released by the Information Service of DPA (Democratic Party of the Albanians), on the occasion of the column of the journalist Iso Rusi published in the newspaper “Koha” on May 10, 2007.

This communication openly advocates fascistic attitudes by contesting the right of the people from mixed ethnic marriages to a national identity. By calling these people names - biological hybrids or bastards - the ruling DPA is explicitly establishing itself as a political subject that promotes national exclusion and discrimination, thus seriously endangering the universal guaranteed rights of the citizens of the Republic of Macedonia from mixed ethnic marriages.

The Helsinki Committee for Human Rights of the Republic of Macedonia is also condemning the radical use of hate speech manifested in the above-mentioned communication of the ruling DPA, whereby the freedom of expression is directly and brutally endangered.

Concerned over these behaviors in the society by a political party participating in the Government coalition and aspiring at being a relevant player in the political arena in the Republic of Macedonia, The Helsinki Committee for Human Rights Protection is calling upon the democratic public and the Government of the Republic of Macedonia to most vigorously oppose these attitudes, which jeopardize directly and brutally the constitutionally guaranteed rights and freedoms as well as the democratic and multiethnic identity of the Republic of Macedonia. (16.05.2007)