Last Updated on June 24, 2021 by LawEuro
The case concerns allegations of racially motivated police brutality in respect of the applicant, who states that he is of Roma ethnic origin, and the alleged failure of the respondent State to investigate possible racist motives for the acts complained of. The applicant relied on Article 14 of the Convention read in conjunction with Article 3, and/or Article 1 of Protocol No. 12 to the Convention.
FIFTH SECTION
CASE OF MEMEDOV v. NORTH MACEDONIA
(Application no. 31016/17)
JUDGMENT
STRASBOURG
24 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Memedov v. North Macedonia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 31016/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian/citizen of the Republic of North Macedonia, Mr Fatmir Memedov (“the applicant”), on 18 April 2017;
the decision to give notice to the Government of North Macedonia (“the Government”) of the allegations of racially motivated police brutality and the failure of the prosecuting authorities to investigate those allegations, and to declare the remainder of the application inadmissible;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by Minority Rights Group International, a non-governmental organisation based in London, which was granted leave to intervene by the President of the Section;
Having deliberated in private on 3 June 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns allegations of racially motivated police brutality in respect of the applicant, who states that he is of Roma ethnic origin, and the alleged failure of the respondent State to investigate possible racist motives for the acts complained of. The applicant relied on Article 14 of the Convention read in conjunction with Article 3, and/or Article 1 of Protocol No. 12 to the Convention.
THE FACTS
2. The applicant was born in 1981 and lives in Trier, Germany. He was represented before the Court by the European Roma Rights Centre, a non‑governmental organisation based in Brussels, which was granted leave to represent the applicant by the President of the Section, and by Ms Keti Jandrijeska Jovanova, a lawyer practising in Skopje.
3. The Government of North Macedonia (“the Government”) were represented by their Agent, Ms D. Djonova.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Events of 5 May 2013
5. At around 9.30 p.m. police officers who were members of the “Alfa” unit intervened in the Roma neighbourhood of Topaana in Skopje, in order to arrest a convicted fugitive suspected of having assaulted a third party with a knife.
6. According to the Government (in an account supported by the written statements of several police officers involved in the incident), after the suspect had been arrested, a group of local residents (initially around twenty or thirty people and later one hundred people) gathered around the police car, which contained official weapons and other equipment. Some of the group tried to remove the suspect from the car. The crowd used offensive language and started to throw stones and other hard objects at the officers and the car. More police officers (fifty, according to the applicant) were deployed to the scene. The police officers ordered the crowd to disperse; those who did not comply with the order were pushed back towards two nearby local shops. Five people were arrested inside the shops, including the applicant. Two police officers were injured in the incident, and a police car was damaged.
7. According to the applicant, several police officers entered the shop and started to insult and physically attack those present (four persons including the applicant). They punched and hit them with batons on their heads and bodies. One of the police officers allegedly said to the applicant: “Shut up, you Gypsy motherfucker!” The applicant repeatedly protested, while trying to explain that he was in the army. He neither resisted nor attacked the police officers.
8. The applicant was taken into police custody at 10.30 p.m. According to the police records, he had “visible injuries on his arms, neck and back”. The records contained notes by a doctor attesting to “normal” blood pressure, heartbeat and breathing. On the next day at 7.40 p.m. the applicant was brought before an investigating judge. According to the applicant, he was released on 7 May 2013 at 3.30 a.m.
B. Medical evidence
9. A medical certificate of 7 May 2013 stated that the applicant had been diagnosed with contusio corporis, indicating bruises on the upper right chest (11-12 cm long) and on the left shoulder (22-23 cm long), apparently inflicted by a truncheon. The applicant’s head was additionally painful to the touch. A medical certificate of 9 May 2013 noted bruises on the applicant’s head, neck and chest. Subsequent medical records noted that the applicant had been diagnosed as suffering, inter alia, from post-traumatic stress disorder. The applicant, in support of his application before the Court, provided photographs of bruises on his upper right chest, left shoulder, neck and back.
C. Other relevant material
10. In a report of 7 May 2013 regarding the use of force in the incident, a superior within the Ministry of the Interior (“the Ministry”) confirmed the events that had immediately followed the arrest of the convicted fugitive and specified that the applicant had been seen standing next to the police car at the time when the reinforcements had arrived. Although the report confirmed that proportionate force had been used against several persons, it nevertheless contained no specific information about any force being used against the applicant. Similar findings were made by the Sector for Internal Control and Professional Standards within the Ministry of the Interior (“the Sector”) in a special report of 12 September 2013 that it forwarded to the first-instance public prosecutor in relation to the applicant’s criminal complaint (see paragraphs 13-21 below).
D. Proceedings against the applicant
11. In a criminal complaint of 6 May 2013, the Ministry charged the applicant, together with four other persons, with assault of a police officer, in relation to the incident of 5 May 2013. The charges concerned allegations that he had thrown stones and other hard objects at the police car and the officers.
12. In a decision of 10 June 2013, an investigating judge stayed the investigation after the public prosecutor withdrew the charges against the accused because of a lack of evidence that they had committed the alleged crime.
E. Proceedings regarding alleged racially motivated police brutality
13. Pursuant to a request by, among others, the applicant, on 20 June 2013 the Helsinki Committee on Human Rights in Skopje complained to the Sector about, inter alia, the force used by police officers in the incident of 5 May 2013.
14. On 5 July 2013 the Sector confirmed the account described in paragraph 6 above. It further stated that physical force had been used by the police during the arrest of those suspected to have participated in the unrest, and it found that physical force to have been lawful and proportionate. More details were provided in this regard in relation to three persons, not including the applicant. Similar information was provided to the European Roma Rights Centre in reply to a query from the latter.
15. On 10 September 2013 the applicant, through his lawyer, complained to the Sector that police officers had beaten and verbally abused him in the local shop near his house. He alleged that their reaction to his remarks that they could not behave in that manner seemed to have been provoked by the fact that he was of Roma origin. Accordingly, he had been discriminated against on the basis of his ethnic origin. His injuries had been confirmed by the medical evidence and photographs (see paragraph 9 above). He complained that he had been a victim of ill-treatment, torture and violence. Given its earlier communications on the matter (see paragraph 14 above), the Sector replied that it would not carry out any further inquiry.
16. On 28 March 2014 the applicant, through his lawyer, lodged a criminal complaint against police officers (six of whom were identified) on account of, inter alia, ill-treatment, torture, violence and racial discrimination, all punishable under the Criminal Code, in relation to the events of 5 May 2013. He reiterated the arguments he had raised earlier (see paragraphs 7 and 15 above) and submitted the available material (see paragraphs 9, 12 and 14 above). He also requested that the public prosecutor examine the police officers concerned and the three co-accused regarding the incident in question, in the proceedings against the applicant (see paragraph 11 above).
17. On 29 November 2014 the first-instance public prosecutor rejected the criminal complaint, holding that the alleged crimes were not subject to prosecution by the State. Regarding “the injuries which [the applicant] had sustained …” the prosecutor held that “[the accused] had performed their duty based on an earlier order …”. Relying on the available evidence, the prosecutor held that, inter alia, the police intervention which was the subject of the complaint had been lawful. On an appeal by the applicant, the higher public prosecutor quashed that decision and ordered the lower prosecutor to resume the investigation, to examine the applicant and to take into consideration the fact that the investigation in respect of him had been stayed.
18. On 25 March 2016, given the inactivity of the first-instance prosecutor, the applicant requested that the higher public prosecutor take over the investigation, a request which was subsequently rejected on 27 April 2016. In a letter of 31 March 2016, the applicant’s lawyer informed the relevant prosecutor that the applicant had been in Germany since 2015, where he had applied for asylum on the grounds of alleged harassment by the police in relation to his criminal complaint.
19. In a decision of 17 March 2017, the first-instance public prosecutor again rejected the criminal complaint. On the available material, the prosecutor established that the applicant had been arrested because he had been previously identified as being among those who had prevented the officers in the performance of their duties. The six police officers accused (see paragraph 16 above), whom the prosecutor had examined, had denied that they had arrested the applicant. The decision noted that the officers to whom the applicant had been handed over by the members of the “Alfa” unit, and who had transferred him to the police station, had not applied any physical force to him. That he had sustained “visible injuries in the incident” (во настанот се здобил со видливи повреди) was established on the basis of the police records of his deprivation of liberty (see paragraph 8 above). The decision also noted that the investigation in respect of the applicant had been stayed because the police officers concerned could not confirm that he had prevented them, at the critical time and place, from performing their duties. Lastly, the applicant had not been heard because he had left the respondent State. On 31 May 2017 the higher public prosecutor again upheld an appeal by the applicant and ordered the first-instance prosecutor to resume the investigation. The higher public prosecutor found that the lower prosecutor had not properly established the facts, in particular regarding the circumstances relating to the applicant’s arrest and whether any force had been used against him.
20. In June 2018 the relevant prosecutor summoned and heard several police officers, including the six named officers, who had allegedly been involved in the events that were the subject of the applicant’s complaint. In January 2019 the prosecutor heard the applicant, who reiterated his allegations of police brutality and the use of offensive language in relation to his Roma origin. He also added that after the events in question, people in plain clothes had often approached him and his wife requesting that he withdraw his criminal complaint against the police.
21. On 7 October 2019 the first-instance public prosecutor rejected the criminal complaint, finding no evidence that “the accused or any other police officer present had used physical force against [the applicant] or that they had otherwise caused him mental suffering with respect to his Roma origin”. The public prosecutor further held that the official police records had noted that “all instances of the use of force on the critical day were [lawful]. The use of physical force in the shop had not been confirmed with adequate official documents because the circumstances under which it had been applied had not allowed other official measures, namely identification and assessment of the use of force, to be taken. With regard to the case in question, the Sector had also found that the force used had been justified and proportionate and [lawful]. After a detailed investigation … it is impossible to establish with certainty when, how and where [the applicant] sustained his bodily injuries on the critical day. The victim is also unable to recognise the police officers who, according to him, [had] inflicted the bodily injuries.” On 27 January 2020 the higher public prosecutor dismissed an appeal by the applicant and confirmed the lower prosecutor’s decision.
F. Civil proceedings on account of alleged discrimination
1. Proceedings against the Ministry
22. On 15 April 2016 the applicant brought compensation proceedings against the Ministry, claiming, under the Discrimination Act (“the Act”, Закон за спречување и заштита од дискриминација), as the lex specialis, that he had been a victim of racially motivated police abuse (see paragraphs 7 and 15 above). He further added that his neighbours, who were Roma, had often been subjected to verbal and psychological assaults by the police.
23. During the proceedings the trial court heard oral evidence from the following persons: three police officers who denied having used any force against the applicant (see paragraph 19 above); F.B. (one of the co-accused in the proceedings against the applicant; see paragraph 11 above), who confirmed that he had been in the shop at the time when police officers had entered and started beating those present (including the applicant) and had used offensive language related to their Roma origin; and the applicant’s father, who had observed the incident from nearby and had confirmed the use of offensive language by the police. The court also admitted as evidence video footage of the events in the shop which had been broadcast at the time by several TV channels; the Ministry was unable to produce the original CCTV footage, which it had seized after the events in question. As stated by the court, the video footage showed the police beating a person in the shop, whose face was distorted. Accordingly, it could not have been established whether that person was the applicant. The court also admitted as evidence international reports regarding the situation of Roma in the respondent State (see paragraph 28 below).
24. On 4 December 2018 the Skopje Court of First Instance dismissed the applicant’s discrimination claim against the Ministry. Although it considered the witness statements that the police had hit the applicant in the shop to be credible, it found no facts and evidence that the police had discriminated against him owing to his Roma origin. In this connection it noted that the police intervention had occurred in a neighbourhood populated mostly by Roma. That explained the fact that all the people arrested in the incident had been Roma. Furthermore, the police had not been selective, and had arrested everyone who had been part of the crowd and entered the shop following the police intervention. The applicant, who had been part of that crowd and who had been aggressive, had also been arrested. The court did not give any weight to the witness statements which stated that the police officers had used offensive language, finding them to be biased and inconsistent with other evidence. The court concluded that it was open to the applicant to claim compensation under the general rules of tort for any damage based on any other ground. In its decision of 4 April 2019 the Skopje Court of Appeal upheld that decision and dismissed the complaint brought by the applicant regarding the assessment of evidence and the approach taken as to the burden of proof.
2. Proceedings against the prosecution office
25. On 27 January 2017 the applicant brought civil proceedings under the Act against the prosecution office, claiming compensation for non‑pecuniary damage resulting from the failure to investigate his allegations of police brutality, unlike similar complaints submitted by other complainants in March 2014. During the proceedings, the applicant applied unsuccessfully for statistical data to be admitted as evidence; the prosecution maintained that such data related to pending investigations, were confidential, and could not be provided.
26. On 21 November 2018 the Skopje Court of First Instance dismissed the applicant’s claim, holding that the ongoing investigation had been conducted in accordance with the applicable rules. On 13 June 2019 the Skopje Court of Appeal confirmed that decision.
27. On 31 July 2019 the applicant challenged the above decisions before the Constitutional Court, asking it to find that the public prosecutor had discriminated against him on the basis of his Roma origin. No information was provided as to the outcome of those proceedings.
RELEVANT International material
28. The relevant international material referred to by the applicant concerning the situation of Roma in North Macedonia is described in X and Y v. North Macedonia (no. 173/17, §§ 28 and 29, 5 November 2020).
THE LAW
I. ALLEGED DISCRIMINATION
29. The applicant complained that his ill-treatment by the police had been racially motivated and that the prosecuting authorities had failed in their duty to investigate possible racist motives. He also alleged that his ill‑treatment at the hands of the police and the authorities’ failure to ensure an effective investigation were the result of institutional racism (“institutional anti-Gypsyism”). He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention, and Article 1 of Protocol No. 12 to the Convention. In his submissions of 4 October 2019, the applicant complained under Article 1 of Protocol No. 12 to the Convention and/or Article 14 read in conjunction with Article 6 of the Convention that the civil courts had failed to apply the distribution of the burden of proof appropriately. These provisions read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
A. Scope of the case
30. Notwithstanding the absence of any objection by the Government regarding the applicability of Article 14 of the Convention, the Court will address the issue of compatibility ratione materiae in view of the relevant case-law (see, among many other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts), and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010).
31. The Court observes the applicant’s injuries noted in the police records and the medical evidence, which were not contested by the public prosecutor (see paragraphs 8, 9, 17, 19 and 21 above) or the Government. It further finds that, contrary to the Government’s contention, they were sufficiently serious to reach the threshold of severity required under Article 3. In such circumstances, it considers that the matters complained of fall within the scope of Article 3 of the Convention and that Article 14 of the Convention, read in conjunction with Article 3, is therefore applicable to the present case.
32. In the light of the above, and noting that the meaning of discrimination in Article 1 of Protocol No. 12 is identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019), the Court will examine the applicant’s discrimination complaints exclusively under Article 14 of the Convention read in conjunction with Article 3, there being no need for an assessment thereof under Article 1 of Protocol No. 12 (see X and Y v. North Macedonia, cited above, § 64, and Cazacliu and Others v. Romania (dec.), no. 63945/09, §§ 161 and 162, 4 April 2017). It will also not address separately the applicant’s subsequent complaint raised in the submissions of 4 October 2019 (see paragraph 29 above), which is closely linked to and absorbed by the applicant’s complaints to be examined under Article 14 of the Convention read in conjunction with Article 3 (see, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Cazacliu and Others, cited above, §§ 90, 162 and 165).
B. Preliminary issues
1. The parties’ submissions
33. The Government argued that the applicant’s allegations were premature because the investigation (launched over ten months after the alleged incident, which had made any fresh expert examination of the applicant’s injuries impossible) and the civil proceedings were both still pending at the time the Government submitted their observations. In a document dated 16 March 2020 containing their comments on a factual update by the applicant, the Government, for the first time, raised a non-exhaustion plea in relation to the applicant’s constitutional complaint (see paragraph 27 above).
34. In the alternative, and if the Court were to find the investigation to have been ineffective, the Government maintained that the application had been submitted outside the six-month time-limit, which, according to them, had started to run on 27 April 2016 (see paragraph 18 above) at the latest, when the applicant should have become aware of its ineffectiveness. The subsequent steps in the proceedings could not be regarded as new developments capable of “reviving” the State’s procedural obligation under this head.
35. The applicant contested the Government’s objections of non-exhaustion of domestic remedies and failure to comply with the six-month time-limit. The fact that the application had been submitted while the investigation was still ongoing could not preclude the Court from examining his complaints. He further maintained that the six-month time-limit, if applicable at all to the present case, might be regarded as having started to run from 17 March 2017, the date when the first-instance public prosecutor had rejected his criminal complaint (see paragraph 19 above).
2. The Court’s assessment
(a) Non-exhaustion of domestic remedies
36. The Court notes that the criminal investigation by the public prosecutor, as well as the civil proceedings instituted by the applicant, ended after the objection under this head had been raised. Accordingly, the Government’s objection as to non-exhaustion regarding those proceedings has lost its relevance (see Molla Sali v. Greece [GC], no. 20452/14, § 90, 19 December 2018; Samoylov v. Russia, no. 64398/01, § 39, 2 October 2008; and Kopylov v. Russia, no. 3933/04, § 119, 29 July 2010). As to their objection regarding the proceedings before the Constitutional Court (see paragraph 27 above), the Court finds that, for the reasons stated in Khlaifia and Others v. Italy ([GC], no. 16483/12, § 52, 15 December 2016), which likewise apply to the present case, the Government are estopped from relying on those grounds, which were not raised in their initial non-exhaustion plea (see, conversely, Strezovski and Others v. North Macedonia, nos. 14460/16 and 7 others, § 35, 27 February 2020).
37. In view of the foregoing, the Government’s objection on the grounds of non‑exhaustion of domestic remedies has to be dismissed.
(b) Compliance with the six-month rule
38. The relevant principles of the Court’s case-law concerning the six‑month rule are set out in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 259‑66, ECHR 2014 (extracts)).
39. Turning to the present case, the Court considers that the applicant complained to the domestic authorities in a diligent manner. It does not find convincing the Government’s arguments that the time that elapsed between the incident and the applicant’s criminal complaint had any bearing on the subsequent investigation. Indeed, the prosecuting authorities made no mention of those considerations in their decisions. The Court further observes that throughout the investigation the applicant maintained, through his lawyer, regular contact with the authorities, displaying active interest in the proceedings (see, conversely, Deari v. the former Yugoslav Republic of Macedonia (dec.), no. 54415/09, §§ 48 and 49, 6 March 2012). The fact that the applicant had waited some time while the investigation was pending before he lodged his application with the Court cannot be taken to his detriment. This is because the Court cannot fault applicants for having put their trust in the system, giving the authorities the benefit of the doubt and awaiting further progress before applying to the Court, so long as there was a realistic possibility, on the basis of information they had received from the authorities, that the investigative measures were moving forward (see Burlya and Others v. Ukraine, no. 3289/10, § 111, 6 November 2018).
40. In the light of the foregoing, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed.
C. Procedural aspect: whether the respondent State complied with its obligation to investigate possible racist motives
1. Admissibility
41. The Government did not raise any further objection as regards the admissibility of this part of the application.
42. The Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
43. The applicant reiterated that the public prosecutor had failed to investigate the possibility that his beating by the police had been racially motivated.
44. According to the Government, the applicant had undermined the effectiveness of the investigation given that he had left the respondent State soon after he had lodged his criminal complaint. However, the public prosecutor had identified and examined the police officers concerned, who had no previous criminal record. Although initially there had been certain periods of inactivity, the first-instance public prosecutor had subsequently been more active and had taken a number of investigative measures. Lastly, the civil courts had given their decisions promptly and had provided relevant and sufficient reasons for dismissing the applicant’s discrimination claims.
(b) The Court’s assessment
45. The relevant Convention principles concerning a State’s obligation to investigate possible racist motives of treatment prohibited under Article 3 of the Convention were summarised in B.S. v. Spain (no. 47159/08, §§ 58 and 59, 24 July 2012).
46. The Court observes at the outset that it is not called upon to pronounce on whether the investigation by the prosecuting authorities of the respondent State complied with the requirement of effectiveness under Article 3. Its examination of the allegations under this head is confined to an assessment of whether the prosecuting authorities of the respondent State, failed to investigate a possible causal link between the alleged racist attitudes on the part of the police and the violent acts the applicant arguably claimed they had perpetrated against him.
47. The Court notes that in his complaint of September 2013 to the Sector, the applicant alleged that when arrested in the shop he had been verbally abused by the police in relation to his Roma origin (see paragraph 15 above). In the criminal complaint to the public prosecutor dated March 2018 he mentioned the racist remarks allegedly made to him by the police, such as “Shut up, you Gypsy motherfucker!” (see paragraphs 7 and 16 above). His account remained consistent in his oral testimony of January 2019, the date of his first examination before the public prosecutor (see paragraph 20 above). He also raised the allegations of racial slurs in his civil action against the Ministry of April 2006 (see paragraph 22 above).
48. The Court considers that although plausible (see, conversely, X and Y v. North Macedonia, cited above, § 76) those submissions were not thoroughly examined by the prosecuting authorities, whose investigation was confined to the alleged use of force against the applicant, notwithstanding that the racist attitudes behind the events complained of were punishable under the provisions of domestic criminal law (see paragraph 16 above). In this connection the public prosecutor did not examine any of the witnesses suggested by the applicant; those witnesses had been present in the shop at the material time and could have provided first-hand information about the events. It has not been argued that there was any reason for this failure. Indeed, in the civil proceedings regarding the applicant’s discrimination claim against the Ministry, the trial court heard evidence from F.B. and the applicant’s father, as eyewitnesses to the applicant’s arrest. They confirmed the alleged use of offensive language by the police, but the civil courts disregarded their statements as biased and contradictory to other evidence (see paragraphs 23 and 24 above). There is nothing to suggest that the evidence produced by these witnesses and the findings of the civil courts regarding their credibility played any role in the final decision of the public prosecutor, which followed the compensation proceedings against the Ministry (see paragraphs 21 and 24 above). Furthermore, no explanation was given as to the allegations of racial slurs, which, as noted above, the applicant consistently raised before the public prosecutor. The latter found only summarily that there was no evidence that “the accused or any other police officer present … had otherwise caused [the applicant] mental suffering with respect to his Roma origin” (see paragraph 21 above).
49. In the light of the foregoing, the Court considers that the prosecuting authorities, the sole authorities with competence to investigate possible racist motives, failed to comply with their duty under Article 14 of the Convention, read in conjunction with Article 3, to take all possible steps to ascertain whether or not a discriminatory attitude might have played a role in the events.
50. There has accordingly been a violation of Article 14 of the Convention read in conjunction with Article 3 in its procedural aspect.
D. Allegations of racially motivated police brutality
1. The parties’ submissions
51. The Government argued that the applicant had failed to demonstrate to the appropriate standard of proof that the police had inflicted on him the injuries noted in the police records. In this connection they referred to the unrest that had prompted the police intervention and the applicant’s subsequent arrest. They nevertheless maintained that “the treatment in the present case [had been] inflicted in the course of a legitimate police operation during which the police … [might] have acted properly or erred in taking measures aimed at ensuring the success of the operation and guaranteeing the security of both the police officers and the violent crowd”. If the Court found that the applicant’s allegations of ill-treatment at the hands of the police were arguable, there was nothing to indicate that such treatment (“or a possible error on part of the police”) had been (“intentional” and) racially motivated. The police raid in the present case, as with any other similar raid “in pursuance of escaped convicts or other fugitives from justice”, had been carried out in accordance with the law, policy measures and operative arrangements. Lastly, the Government referred to the regulatory framework, administrative measures and the steps taken in practice that demonstrated the absence of any institutional discrimination, in particular against Roma.
52. The applicant maintained that his case should be examined in view of the “general climate of institutional anti-Gypsyism within Macedonian law enforcement”. Given the absence of any evidence that he “had been involved in the riot or had represented a threat to the security of police officers”, the use of force by the police had been arbitrary. The following factors demonstrated that he had made out a prima facie case of having been a victim of discriminatory police brutality: his injury during “the unusually large-scale police raid in a well-known Roma neighbourhood”; the entire context and the “extreme nature” of the police intervention of 5 May 2013; the fact that he had been arrested in a nearby shop after the police had arrested the fugitive; the racial slurs used by the arresting officers; and the information about the alleged police abuse of Roma in the respondent State contained in the reports by intergovernmental bodies (see paragraph 28 above). In addition, the Government had failed, for their part, to submit that similar raids had occurred in non-Roma neighbourhoods or that the investigation of alleged ill-treatment of non-Roma was “similarly slow and inconclusive”. The applicant also referred to Roma-related cases before the Court against the respondent State and invited it to draw conclusions on that basis.
2. Third-party intervener (Minority Rights Group International)
53. The third-party intervener commented about the relevant legal principles, the Court’s case-law – in particular the relationship between Article 14 and Article 1 of Protocol No. 12 of the Convention and the related issues of the standard and burden of proof – and relevant literature that underpinned the prohibition of discrimination, in particular, the prohibition of institutional (or structural) discrimination (or racism).
3. The Court’s assessment
54. The Court’s task is to establish whether or not racism was a causal factor in the impugned conduct of the police officers, such as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3 (see Stoica v. Romania, no. 42722/02, § 118, 4 March 2008, and Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, § 160, 27 January 2015).
55. In this connection it was alleged by the applicant, both before the domestic authorities and before the Court, that his ill-treatment at the hands of the police had occurred during his arrest in a shop in the “well-known” Roma neighbourhood where the police had previously intervened in order to arrest a reported Roma assailant. The parties did not dispute that the pursuit had provoked disorder on a larger scale (described by the applicant as a “riot” – see paragraph 52 above), resulting in two police officers being injured and a police car being damaged. Nor did they contest the figures regarding the number of local residents involved in those events (up to one hundred) and the police reinforcements subsequently deployed (fifty police officers) (see paragraph 6 above). Moreover, it has not been argued that the planning and execution of the subsequent police raid targeting those allegedly involved in the disorder were based on considerations relating to the local residents’ ethnic (Roma) origin. From the material available, the Court also does not find any evidence that the police raid, which was a response to the violent reaction of the local residents, was influenced by the residents’ Roma origin (see, conversely, Lingurar v. Romania [Committee], no. 48474/14, §§ 75 and 76, 16 April 2019). The general information from international fora about the alleged police abuse of Roma in the respondent State does not show that Roma communities are confronted with institutionalised racism in the respondent State (see ibid., § 80). Furthermore, while potentially relevant, it is an insufficient basis for a conclusion of racially motivated police abuse regarding the concrete events in the present case (see X and Y v. North Macedonia, cited above, § 73; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 155, ECHR 2005‑VII; and Bekos and Koutropoulos v. Greece no. 15250/02, § 66, ECHR 2005‑XIII (extracts)).
56. The Court also observes that the applicant did not allege that the officers had failed to arrest any non-Roma person suspected, as he was, of having participated in the “riot” (see B.S. v. Spain, cited above, § 61). That the police had not been selective in arresting such suspects was also established by the domestic civil courts which dealt with the applicant’s discrimination claim against the Ministry (see paragraph 24 above).
57. As to the alleged racial slurs used against the applicant by the arresting officers, the Court considers that the evidence in that respect cannot be regarded, in itself and in the absence of other concrete corroborating evidence relevant to the applicant’s case, as a sufficient basis for concluding that the respondent State is liable for racist ill-treatment (see Nachova and Others, cited above, § 153).
58. The Court has examined the applicant’s remaining arguments, but finds that they cannot lead to any different conclusion.
59. Accordingly, the applicant’s complaints under this head are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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.”
A. Damage
61. The applicant claimed 24,000 euros (EUR) in respect of non‑pecuniary damage for mental and physical suffering as a result of the alleged violations.
62. The Government contested this claim as excessive and invited the Court to award the applicant a lower amount if it did not find a violation on all alleged grounds.
63. Ruling on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
64. The applicant did not make any claim in respect of costs and expenses.
65. Accordingly, the Court does not award any sum under this head.
C. Default interest
66. 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 complaint under Article 14 read in conjunction with Article 3 of the Convention, concerning the alleged failure of the authorities of the respondent State to investigate the applicant’s allegations of racially motivated police brutality, admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 14 read in conjunction with Article 3 of the Convention on account of the failure of the authorities of the respondent State to investigate the applicant’s allegations of racially motivated police brutality;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
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