X and Y v. North Macedonia (Application no. 173/17)
A selection of key paragraphs can be found below the judgment.CASE-OF-X-AND-Y-v.-NORTH-MACEDONIA
50. The obligation to carry out an effective investigation into allegations of treatment infringing Article 3 suffered at the hands of State agents is well established in the Court’s case-law (see Bouyid, cited above, §§ 114-23, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998VIII, and for a full statement of principles by the Grand Chamber, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 182-85, ECHR 2012, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 316-26, ECHR 2014 (extracts)). In order to be “effective”, such an investigation must firstly be adequate, which means that it must be capable of leading to the establishment of the facts and to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Jeronovičs, cited above, § 103). Furthermore, it must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or illfounded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see El Masri, cited above, § 183). Furthermore, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (see Bouyid, cited above, § 118). The investigation should be independent from the executive. Lastly, the victim should be able to participate effectively in the investigation in one form or another (see El Masri, cited above, §§ 184 and 185).
51. In the present case, the Court notes that on 3 September 2014 both applicants filed a criminal complaint accusing four unidentified police officers of ill-treatment, torture, violence and racial discrimination. In the complaint they provided their account of events and the manner in which the police officers had allegedly ill-treated them. In support of their allegations they submitted copies of their earlier application to the Sector (which contained written statements by alleged eye-witnesses) and the latter’s reply. They also asked the public prosecutor to examine them, the police officers concerned and five identified eye-witnesses to the alleged incident. Lastly, X submitted medical evidence (see paragraph 12 above). Notwithstanding the fact that there was no medical evidence in respect of Y., his allegations were supported, contrary to the Government’s argument (see paragraph 44 above), by witness statements, the accuracy of which was to be verified.
52. In the Court’s opinion, therefore, the applicants’ complaints constituted an arguable claim that they might have been illtreated by the police and the authorities were thus under an obligation to conduct an effective investigation.
54. The Court notes that the first-instance public prosecutor remained totally inactive and took no investigative measure for over two years after the applicants had filed the criminal complaint (see paragraphs 12 and 15 above). That prompted the applicants to apply to the higher public prosecutor on three occasions, asking it to review the work of the lower prosecutor or to take over the prosecution (see paragraphs 13 and 14 above). These requests, as stated above, were an available remedy and constituted a reasonable attempt by the applicants to pursue their complaint before the prosecuting authorities (see paragraph 41 above). It is to be noted that at the first meeting with the applicants’ representative of 25 November 2016, the public prosecutor did not discuss the applicants’ complaint, but X’s unavailability in the proceedings against him (see paragraph 15 above). It was only on 2 December 2016 that the public prosecutor contacted the Ministry, for the first time, with a view to obtaining the identity of the police officers concerned. Since that request was apparently fruitless, he made the same request nearly one year later, on 6 November 2017 (see paragraph 16 above). The Court, furthermore, cannot but note that it was only on 25 November 2017, namely more than three years after the applicants’ criminal complaint, that the public prosecutor examined Y and the police officers involved, whose identity had meanwhile been revealed (see paragraph 17 above). No explanation was given for these delays, which are solely attributable to the public prosecutor. Moreover, there is no indication that the public prosecutor examined any witness (proposed by the applicants) or took other steps to uncover evidence concerning the incident. X has not yet been examined and it has not been shown that the public prosecutor dealing with the applicants’ criminal complaint made any serious attempt to hear evidence from him. In this connection the Court notes the steps taken in the criminal proceedings against X, as an accused (see paragraph 25 above), which, despite the difficulties in securing X’s presence, ended with a final decision on the merits. More than six years after the critical events of 19 May 2014, the investigation into the applicants’ allegations of police brutality is still pending. The Court has already found in respect of the respondent State that the passage of unreasonable time for the investigation of allegations of police brutality, unlike the processing of cases against the applicant, as in the present case, suggests that the authorities did not submit the applicants’ case to the careful scrutiny required by Article 3 of the Convention (see Andonovski v. the former Yugoslav Republic of Macedonia, no. 24312/10, § 91, 23 July 2015).
55. Against this background, the Court concludes that there was no effective investigation into the applicants’ allegations that they had been subjected to treatment prohibited under Article 3 of the Convention. The Court accordingly finds that there has been a violation of Article 3 of the Convention under its procedural limb.